There are a few circumstances when an employee can sue his employer. Most employers are immune to employee lawsuits due to a complicated web of workers’ compensation statutes protecting them; however, some exceptions exist for specific circumstances and conditions.
Failure to Carry Workers’ Compensation Insurance
Every state requires employers to carry workers’ comp insurance. (Some employers may be exempt if they’re certified as self-insured through their state’s regulatory system.)
Under the no-fault workers’ comp system, an injured employee doesn’t have to prove the employer was negligent. The injury alone is enough for workers’ comp to pay the employee’s medical bills, out-of-pocket expenses, and partial lost wages. In return, injured employees give up the right to sue their employers.
An employer’s failure to carry workers’ comp insurance subjects him to substantial fines and penalties, and gives an injured employee the right to sue. A lawsuit allows an employee to claim a wider range of damages, including total lost wages, and pain and suffering (workers’ comp doesn’t pay for pain and suffering). Punitive damages may also be awarded in extreme cases of an employer’s reckless disregard for safety or gross negligence.
Each state has unique conditions under which an employee may sue an uninsured employer. To learn more about your state’s rules, read this document..
Example: Back Injury With No Workers’ Comp
Andrew worked on the loading dock for a small delivery company. He assumed the company carried state mandated workers’ compensation insurance. Andrew was loading one of the delivery trucks when his back gave out. An MRI diagnostic test revealed a herniated disk.
When Andrew asked for the workers’ comp insurance information, his supervisor told him the company wasn’t insured. Andrew retained an attorney and successfully sued his employer for damages, including compensation for his medical bills, medications, transportation to and from therapy, all his lost wages, and his pain and suffering.
Virtually all states follow “at-will” employment laws. At-will employment is a legal doctrine meaning both the employer and employee are free to end their working relationship at any time, for just about any reason. There are several wrongful termination exceptions to the at-will doctrine.
Wrongful termination lawsuits can be based on:
- Breach of an implied or written contract of employment
- Breach of an employer’s covenant of good faith and fair dealing
- Violation of public policy
When these exceptions can be proved, a wrongfully terminated employee may be able to sue her employer. In these cases, suing an employer can include damages for past and future lost wages, related out-of-pocket costs (such as legal fees), mental anguish, and punitive damages.
For a state by state of list of wrongful termination policies go to the
National Conference of State Legislators website.
Example: Implied Contract
Susan worked in California as a successful sales representative. She was moving steadily up the corporate ladder. An out-of-state employment firm contacted her with an opportunity to work for a rapidly expanding New York company. Susan interviewed with the company and was offered a position at a higher salary and the inside track to a supervisory position. Susan accepted the job and moved across the country to New York.
Two months later she was fired. The company told her the termination was due to her lack of sales. Susan retained an attorney and successfully sued the New York company based on an implied contract of employment. Susan proved she would not have moved from California, “but for” the implied contract of employment made by the New York company.
She contended the company never told her she would be terminated within a two-month period because of poor sales. If they had, Susan stated, she never would have left her former job and moved across country. The court agreed.
Employer’s Intentional or Egregious Conduct
Workers’ compensation laws almost always prohibit injured workers from suing an employer, even in cases of employer negligence. An exception is made when the employer engages in intentional or egregious (flagrant or exceptionally bad) conduct. An employee must prove the employer’s actions were deliberate and certain to result in the employee’s injuries.
While most states allow an employee to sue for egregious or intentional conduct, ten states do not. Those states are: Alabama, Georgia, Indiana, Maine, Nebraska, New Hampshire, Pennsylvania, Rhode Island, Virginia, and Wyoming. Federal employees are also prohibited from suing the government for claims of employer intentional or egregious conduct.
Example: Burned by Hot Grease
Jack worked for a New Jersey-based fast food franchise. Jack’s normal duties included preparing fried food for customers. Several employees had complained to the manager that the food fryer was malfunctioning and sometimes spewed hot grease into the air. The manager ignored the complaints.
Jack was about to drop French fries into the fryer when it exploded, covering Jack with hot grease, causing second and third degree burns. His employer told Jack that workers’ compensation would take care of his medical bills and partial lost wages while he was recovering. Instead, Jack retained an attorney who successfully sued Jack’s employer based on intentional and egregious conduct (ignoring the malfunctioning fryer, which was certain to result in injury).
Employers are prohibited by state and federal law from engaging in retaliatory behaviors. An employee who suffers retaliation may sue her employer. Retaliation can include:
- Unfair disciplinary actions
- Isolation from other employees
- Interference with a workers’ compensation claim
- Threatening statements or actions
Retaliation can occur when an employee files a workers’ compensation or civil rights claim, when an employee ignores an employer’s directive to commit an unlawful or dangerous act, or when an employee is a whistle blower. The Equal Opportunity Employment Commission (EEOC) provides support and information for employees subjected to employer retaliation.
Example: Employer Abuse
Martha worked for several years as a secretary at an accounting firm. Her primary duties included inputting data and typing out lengthy financial disclosures. Martha began to experience pain in her left wrist, and an MRI revealed she suffered from Carpal Tunnel Syndrome.
Martha filed a workers’ comp claim. After she filed the claim, her employer berated her in front of other employees, threatened to fire her, and otherwise made her work day unbearable. Martha retained an attorney and successfully sued her employer based on his retaliatory actions.
Employees who suffer discrimination based on national origin, religion, gender, disability, or age, are entitled to sue their employers under state and federal statutes (Title VII of the Civil Rights Act). Employer discriminatory practices include failure to hire, retaliation, harassment, promotion denials, isolation, and demotion to inferior duties.
Example: Racial Descrimination
Sarah is a black female who applied for a job as a paralegal at a well-known civil litigation firm. Although the firm employed over fifty people, there were no black employees. Sara was fully qualified for the position, yet the job went to a lesser qualified white applicant.
When Sarah asked why she didn’t get the job, she was told the other applicant was more qualified. Sarah filed a lawsuit under Title VII of the U.S. Civil Rights Act. The court found Sarah’s qualifications clearly merited her employment by the law firm and awarded Sara damages.
An employee injured by a coworker or other third party may be entitled to sue her employer. The injured employee must prove her employer was aware of the third party’s history or propensity for violence, and took no action to remove the employee or otherwise protect workers from the third party’s reckless behavior.
Example: Hit By Bus Driver
Ellie worked for the local school district as a crossing guard. She was assigned to a street corner where school buses passed on the way to and from the school. On several occasions a bus driver swerved and almost hit Ellie. She reported the driver.
An investigation revealed the bus driver was taking prescribed sleeping medications which sometimes caused him to briefly fall asleep at the wheel. Because bus drivers were in demand, the school district took no action to prohibit him from driving. After several more close calls, the bus driver fell asleep at the wheel and crashed into Ellie.
Ellie declined workers’ compensation benefits. She instead retained an attorney and filed a lawsuit against the school district. The suit contended the school was aware the bus driver was falling asleep at the wheel and did not remove him. The court sided with Ellie, stating the school had a legal duty to remove an employee who exhibited dangerous behavior, and the school breached that duty.
Employers have a legal duty to protect employees from undue harm and injury. They breach that duty when they negligently expose their workers to toxic chemicals, including asbestos, benzene, chromium compounds, silica, radium, and other extremely harmful substances.
In most cases, employees harmed by exposure to toxic substances can circumvent the workers’ compensation system and sue their employers directly. When the courts find an employer has purposely, or with gross negligence, exposed an employee to toxic substances, the injured employee may also sue for punitive damages.
Example: Asbestos Inhalation
Frank worked for a building restoration company. One of his duties was tearing down old drywall. Frank didn’t know that a building where he worked was built over fifty years ago and was insulated with asbestos. Frank’s employer wasn’t sure if the building contained asbestos because he didn’t want to pay for the test to check for it.
A year and a half later Frank began having problems breathing. A medical diagnosis revealed he suffered from asbestos poisoning related to his on-the-job exposure. Frank ‘s attorney successfully evaded the workers’ compensation system and sued his employer for damages. Because of the employer’s gross negligence in deliberately putting his employees at risk, the court also awarded Frank punitive damages.
Defective Work Products and Tools
The courts hold that suing an employer for a defective work product or tool may be justified in certain circumstances. The injured employee may sue if she can prove her employer was aware the product or tool was defective and failed to repair or eliminate it.
Example: Defect in Protective Clothing
While Amy was employed as a firefighter, the manufacturer of the protective clothing she wore recalled the product because part of it was susceptible to fire. The city was aware of the recall, but took no action to inform the firefighters or remove the clothing from use.
Amy was fighting an apartment fire when her protective clothing ignited, causing Amy third degree burns. Amy sued the city and the manufacturer. In her lawsuit, Amy proved the city knew the clothing was defective, yet did nothing to withdraw it from use. Amy also successfully sued the manufacturer in a separate product liability lawsuit.
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