The Texas law that allows employers to opt out of workers’ compensation also discourages employers from doing so by preventing them from raising a number of defenses to an employee’s work injury lawsuit. These employees must prove the employer was negligent in providing a safe work environment. Employers are prohibited from raising powerful defenses to the workers’ lawsuits, such as contributory negligence and assumption of risk. However, non-subscriber employers are not completely defenseless in a work-injury lawsuit.

Common Non-Subscriber Employer Defenses

Employers can raise a number of defenses, some of which have arisen from Texas court cases. Four common defenses that an injured worker could have to contend with include:

Sole Proximate Cause.

To prove this defense, the employer must show that the employee’s actions were the sole cause of the accident.

Routine Job Defense.

This defense is based on a Texas Supreme Court decision which found that employers would have no liability if an employee was performing the “usual and customary” tasks that he and other employees “constantly and generally” performed.

Commonly-Known Hazard.

This is another defense based on Texas Supreme Court case law where the Court decided that employers have no duty to warn employees of hazards that are commonly known by employees or already appreciated by them. The employer would be claiming that the employee already knew about the hazard and the risk of injury he faced.


This is a statutory defense. An employer could raise it if the employee was under the influence of alcohol or drugs at the time of the accident and this led to the worker’s injuries.

While these defenses may not be as helpful to an employer as some they are prohibited from using, non-subscriber employers still have a number of defenses to work with. That is one reason it is so important that an injured worker retain an experienced workplace injury attorney to help him get the compensation he could be entitled to.

Have You Been Injured At Your Texas Job And Your Employer Doesn't Provide Workers' Compensation?

If you've been injured on the job and your employer is non-subscriber you need to speak with an experienced work injury lawyer as soon as possible. Contact us online or call our our Colleyville office directly at 817.485.8888 to schedule your free consultation.

David Hart
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Helping victims throughout Fort Worth, Arlington, North Richland, Grapevine, Bedford, Hurst and points between
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