Injured at Work in Texas When Your Employer Doesn’t Carry Workers’ Comp

If you were injured at work in Texas and your employer doesn’t carry workers’ comp, you are not out of options. In many cases, you have more of them. Texas is the only state that lets private employers opt out of workers’ compensation entirely, and the trade-off is written into state law: an employer that opts out can be sued directly for negligence, and it loses the defenses most companies rely on to blame injured workers.

These employers are called “non-subscribers.” Instead of filing a workers’ comp claim with capped benefits, an injured employee of a non-subscriber can bring a personal injury lawsuit and pursue the full value of the harm, including pain and suffering, which workers’ comp never pays. The catch is that you have to prove the company was negligent, and many non-subscribers have injury plans, waiver forms, and arbitration agreements designed to keep that from happening.

This guide explains how non-subscriber claims work in Texas, what your employer can and can’t argue, the traps to watch for in the days after an injury, and how Joe Lopez Law builds these cases in Austin and across the state.

What Is a Non-Subscriber Employer in Texas?

A non-subscriber is a Texas employer that has chosen not to carry workers’ compensation insurance. Every other state requires most private employers to have coverage. Texas makes it optional.

This isn’t a fringe practice. According to the Texas Department of Insurance’s 2022 non-subscriber survey, roughly 25 percent of private Texas employers did not carry workers’ comp, and about 17 percent of private-sector employees worked for one of those companies. Non-subscribers show up in construction, warehousing, retail, restaurants, oilfield services, trucking, landscaping, and manufacturing. Some are small local businesses. Others are large, well-known national companies that run their own injury benefit programs.

Texas law requires these employers to tell their workers they don’t carry coverage and to file a notice with the state each year. Plenty of workers still don’t find out until after they’re hurt, usually when someone in HR hands them paperwork for the company’s “injury plan” instead of a workers’ comp claim form.

How Is a Non-Subscriber Claim Different From Workers’ Comp?

Workers’ comp is a no-fault system. You don’t have to prove anyone did anything wrong, but your benefits are limited. You get medical care and a portion of your lost wages. You cannot recover anything for pain, suffering, mental anguish, or the ways a serious injury changes your life.

A non-subscriber claim is a negligence lawsuit. You have to show the employer failed to act reasonably and that failure caused your injury. In exchange, the full range of damages available under Texas law is on the table. For a construction worker with a spinal cord injury or a warehouse employee with a traumatic brain injury, that difference can be enormous.

The defenses your employer loses

Under Section 406.033 of the Texas Labor Code, a non-subscriber cannot defend itself by arguing that:

• You were negligent or careless
• You knew the job was dangerous and accepted the risk
• A fellow employee’s negligence caused the injury

That last point matters more than people realize. If a co-worker backed a forklift into you, the company can’t hide behind that co-worker. The employer is responsible for the negligence of its employees acting within the scope of their jobs.

The Texas Supreme Court went a step further in Kroger Co. v. Keng. A non-subscriber can’t even ask a jury to assign you a percentage of fault to shrink your recovery. In a typical Texas injury case, the other side spends a lot of energy trying to push blame onto the injured person. Against a non-subscriber, that strategy is largely off the table.

The defenses your employer keeps

Non-subscribers aren’t defenseless. The law still allows them to argue that the injury was caused by the employee’s intoxication or that the employee intended to hurt himself. They can also argue that they did nothing wrong at all, that the injury didn’t happen on the job, that you were an independent contractor rather than an employee, or that a preexisting condition explains your symptoms.

Premises cases carry a specific hurdle. In Austin v. Kroger Texas (2015), the Texas Supreme Court held that an employer has no duty to warn about or fix premises hazards that are open and obvious or already known to the employee, with limited exceptions. One of those exceptions covers situations where the worker had no real choice but to encounter the hazard to do the job. How a claim is framed, whether as a dangerous condition, a negligent activity, unsafe equipment, or inadequate training, can decide whether it survives.

What Duties Does a Non-Subscriber Owe Its Employees?

Texas employers owe their workers a duty of ordinary care to provide a reasonably safe workplace. In practice, non-subscriber negligence claims often focus on whether the company:

• Provided safe tools, machinery, vehicles, and equipment that were properly maintained
• Trained employees for the specific tasks they were assigned
• Supplied enough workers or help to do a job safely, especially heavy lifting
• Created and enforced reasonable safety rules and procedures
• Hired, trained, and supervised competent co-workers and supervisors
• Provided required protective gear such as fall protection, harnesses, and eye protection
• Warned employees about hidden dangers the company knew or should have known about

Austin’s growth has put thousands of workers on high-rises, highway projects along I-35, distribution centers, and job sites that move fast and cut corners when deadlines slip. A worker told to lift alone because the crew was short-staffed, or sent up without fall protection because the harnesses were on another site, may have a strong negligence claim against a non-subscriber.

Watch for These Traps After a Workplace Injury

The weeks after an injury at a non-subscriber are when most claims are damaged. Companies that opt out of workers’ comp usually have a system in place, and that system is built to protect the company.

Company injury benefit plans

TDI’s 2022 survey found that about 30 percent of non-subscribers offer an occupational injury benefit plan, and those plans covered roughly 73 percent of non-subscriber employees. Many are governed by ERISA, a federal law. These plans may pay some medical bills and partial wages, but they often come with strict reporting deadlines, sometimes as short as the end of your shift or within 24 hours. They may require you to see company-chosen doctors and can cut off benefits if you don’t follow plan rules exactly. Accepting plan benefits does not, by itself, waive your right to sue. The paperwork that comes with those benefits may be another story.

Post-injury waivers

Texas law voids any waiver you signed before you were hurt. A waiver signed after the injury can be enforceable, but only if it meets specific requirements. It has to be signed voluntarily and knowingly, no earlier than the 10th business day after you reported the injury, after you’ve been evaluated by a non-emergency doctor, and it must be written in conspicuous language. Even when an employer follows every step, signing gives up your right to pursue a negligence claim, often in exchange for limited plan benefits. Do not sign anything titled “election,” “waiver,” or “release” without talking to a lawyer first.

Arbitration agreements

Many non-subscribers require employees to sign arbitration agreements at hiring or as part of the injury plan. Texas courts often enforce them. Arbitration moves the case away from a jury and into a private proceeding. It doesn’t eliminate your claim, but it changes strategy, timing, and costs. A lawyer should review whether the agreement is valid and what it actually covers.

Recorded statements and incident reports

Supervisors and claims administrators often ask for a recorded statement or a signed incident report within hours of the accident. These are used to build the company’s defense. Report the injury promptly and accurately, but keep your description factual and brief. Don’t guess about what caused the accident, and don’t downplay your pain.

What to Do After You’re Hurt at a Non-Subscriber Job

1. Get medical care right away. Tell the provider you were hurt at work and describe every symptom. Gaps in treatment are one of the first things a defense lawyer will point to.
2. Report the injury in writing. Check the employee handbook or injury plan for reporting deadlines and meet them. Keep a copy of what you submit.
3. Find out whether your employer has coverage. Ask HR directly, and check your employer’s coverage status through the Texas Department of Insurance.
4. Document the scene. Take photos of the equipment, the area, and your injuries if you can. Write down the names and phone numbers of co-workers who saw what happened.
5. Keep copies of everything. Save pay stubs, schedules, texts with supervisors, plan documents, and any paperwork the company gives you.
6. Don’t sign waivers, elections, or releases. Have a lawyer review any document before you sign it.
7. Talk to an Austin construction site lawyer early. Companies start preserving their side of the story immediately. Surveillance footage, maintenance logs, and training records can disappear if no one asks for them.

Reporting and Workplace Safety Resources in Texas

The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) tracks which employers carry coverage and requires non-subscribers with five or more employees to report workplace injuries, illnesses, and deaths to the state. If you believe your workplace is unsafe, you can file a complaint with the federal Occupational Safety and Health Administration (OSHA), which has an area office in Austin. Construction workers in Central Texas can also find support and know-your-rights information through the Workers Defense Project, an Austin-based advocacy organization.

These resources can help create a record and protect co-workers. They don’t replace a civil claim, and they won’t recover compensation for your injuries.

What Compensation Can You Recover From a Non-Subscriber?

Because a non-subscriber claim is a negligence case, the damages are not limited by the workers’ comp benefit schedule. Depending on the facts, an injured worker may pursue:

• Past and future medical expenses
• Lost wages and reduced earning capacity
• Pain and suffering and mental anguish
• Physical impairment and disfigurement
• Exemplary damages in cases involving gross negligence

When a worker is killed on the job, surviving spouses, children, and parents may bring a wrongful death claim. Not every category applies to every case, and the value of a claim depends on the severity of the injury, the strength of the evidence, and how clearly the employer’s negligence can be shown.

How Long Do You Have to File?

Most workplace negligence claims against a Texas non-subscriber must be filed within two years of the date of injury. Wrongful death claims typically run two years from the date of death. Company injury plans may have much shorter internal deadlines for reporting and benefits, and arbitration agreements can carry their own timelines. Waiting rarely helps. Evidence fades, witnesses change jobs, and companies get a head start on building their defense.

Could Someone Besides Your Employer Be Responsible?

Often, yes. On multi-employer job sites, a general contractor, subcontractor, property owner, or equipment manufacturer may share responsibility. A defective scaffold, a crane operated by another company’s crew, or a delivery truck driven by an outside carrier can all create a separate third-party claim. These claims can add insurance coverage and accountability beyond your employer. They’re also more complicated, which is why a full investigation matters from the start.

How a Texas Workplace Injury Lawyer Helps in a Non-Subscriber Case

Non-subscriber cases are fought on evidence. The employer’s lawyers will argue the company did everything right, that the hazard was obvious, or that your injury came from somewhere else. A strong case answers those arguments before they’re made.

Joe Lopez Law investigates the employer’s safety practices, training records, staffing levels, equipment maintenance, and prior incidents. The firm reviews plan documents, waivers, and arbitration agreements to see what’s enforceable and what isn’t. Joe works with medical providers and experts to document the full impact of the injury, including future care and lost earning capacity, and builds each case as if it may go to trial. Employers and their insurers take a claim more seriously when they know the lawyer on the other side is ready to prove it.

Why Injured Workers Choose Joe Lopez Law

Joe Lopez has represented injured Texans since 2003 and has recovered more than $100 million for clients. He is a Texas Super Lawyer, a National Trial Lawyers Top 100 member, and a Lifetime Member of the Multi-Million Dollar Advocates Forum. Past results include a $4.9 million settlement for a construction accident victim with life-altering injuries and a $1.9 million settlement for a construction worker hurt in a cement pump truck accident. Past results do not guarantee a similar outcome in your case.

Joe Lopez Law takes fewer cases on purpose. When you call, you’re not routed into a high-volume system. Joe knows your story, your injuries, and what this case means for your family’s future. He grew up in El Paso and speaks fluent Spanish, which matters for the many Spanish-speaking workers on Texas job sites who deserve clear answers in the language they’re most comfortable with. Se habla Español.

Talk to Joe Lopez Law Before You Sign Anything

If your employer doesn’t carry workers’ comp and you were hurt on the job, the paperwork you sign in the next few days can shape your entire claim. Call Joe Lopez Law at (512) 580-9962 for a free case review. There is no fee unless the firm wins or recovers compensation for you, and Joe Lopez Law pays upfront case expenses so you don’t pay out of pocket to get started.

Tell us what happened, and we’ll give you a clear explanation of your options.