Employment Newsletter

Suing an Employer Instead of Filing a Workers’ Compensation Claim

Workplace injuries are usually followed by a Workers’ Compensation claim filed on behalf of the injured employee. However, in certain situations a lawsuit against the employer may be more appropriate and more rewarding for the injured worker.

The typical Workers’ Compensation scenario involves an employee suffering an injury while at work. The injured worker then makes a Workers’ Compensation claim, and depending on the state in which he resides, will receive the appropriate compensation to which he is entitled. Any lawsuit or civil action against the employer is prohibited, as the employer is protected under Workers’ Compensation statutes.

Can an Employee Sue the Employer Outside of Workers’ Compensation?

If an injured employee can substantiate his claim, he will be allowed to sue his employer directly, outside of Workers’ Compensation. Injured employees can bring a claim against their employers directly under the legal theory of intentional tort. An intentional tort in this circumstance is when the employer causes the employee to engage in an activity from which “harm is substantially certain to follow.”

If the employee can prove that his employer caused him to participate in an activity from which harm is substantially certain to follow, court action can be brought. Such suits are encouraged to promote workplace safety, and to deter employers from intentionally jeopardizing the wellbeing of their employees. Proving the employer intentionally caused an injury is often a difficult task.

Activities from Which “Harm is Substantially Certain to Follow?”

Examples of this type of circumstance include:

• An employer instructing an employee to do a job in the same manner and method that has previously caused injury
• An employer instructing an employee to enter an area that is noxious or poisonous without informing the employee or providing the proper safety measures for that environment
• An employer instructing an employee to operate machinery on which safety devices or safeguards had been removed

Again, proving such conduct on the part of an employer is a difficult task. Employees should also be aware that laws governing the situations in which a court action can be brought outside of Workers’ Compensation varies from state to state.

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