In Washington State, the general rule is that an injured worker cannot sue their employer or a co-employee for an L&I job injury. Under Washington Industrial Insurance Act – RCW Title 51, injured workers receive workers’ compensation benefits in exchange for employer immunity against lawsuits. Essentially, the L&I system replaces a worker’s ability to sue their employer for negligence. If you are hurt on the job – file an L&I claim. That is not suing your employer, rather it is filing a claim in a no fault system. Fault does not matter for an L&I claim.
Are there exceptions that may allow me to sue my employer?
The employer immunity rule in effect says that you cannot sue your employer. In most situations you cannot sue your employer, however this rule does not apply in certain situations. There are at least three exceptions to the rule of employer immunity:
- Intentional Injury
- Temporary Agency Employee
- Non-L&I Claim, such as Employment Discrimination
How does the intentional injury exception work?
Washington Statute RCW 51.24.020 is an exception to employer immunity. An employee can sue their employer or co-worker if the injury was intentional. However, this is more challenging than it sounds. Case law for intentional injury tort requires:
- The employer has actual, certain knowledge that the injury would occur and
- They willfully disregard that knowledge.
An employee who wishes to sue for an intentional injury tort must be able to provide persuasive evidence to establish an intentional act.
The intentional injury exception is difficult to prove because most persons who are negligent still do not intend to injure.
For example, suppose an employer deliberately removes the machine guard. In that case, they will probably avoid an intentional injury lawsuit when they argue they didn’t intend an injury. On the other hand, an employer or co-employee who throws a punch and tries to harm their target can probably be sued. In both examples, you will still have an L&I claim. In the case of the thrown punch, you will also have an intentional injury claim because the injury was intended.
The downside of an intentional injury tort is that once an employee proves intentional injury, the employer may lose their insurance coverage.
Additionally, if a co-employee caused the intentional injury, L&I or the self-insured employer can place an L&I lien on the proceeds of intentional injury claims. This means the insurance company can request reimbursement for some of the workers’ comp benefits paid from the proceeds of the intentional tort claim.
The upside of an intentional injury tort claim is that you can have both an L&I and an intentional injury claim. Additionally, there is no L&I lien on an intentional injury claim against an employer.
How does the temporary agency employee lawsuit exception work?
Another special case that may permit an employee to sue their “employer” is temporary employees working out of an agency or placement service. While the same immunity rules apply, because the players are in different positions, the possibilities are different.
When a temporary employee is injured
- The place of employment where the agency sent the worker is a third party, not the employer.
- The temporary employment agency is the employer.
- OK? Read that again if you are not sure.
Therefore, the injured worker has two claims, so long as they didn’t injure themselves at the temporary agency.
- The first is an L&I claim against the agency employer.
- The second is a third-party claim, for the negligence which caused the injury at the work site of the third-party employer.
Employees filing temporary agency employee lawsuits or third-party claims will need to understand the unique differences in their cases. If you find yourself in this position, schedule a consultation with a lawyer to discuss the best path moving forward.
With a non-L&I claim, an employee can sue their employer.
Many situations allow employees to sue their employer if the focus of their claim isn’t about a job injury. Employment law situations such as employment discrimination, illegal termination, sexual harassment, failure to accommodate, and many others allow for legal action against an employer.
Wrongful Termination
Washington Law is very interesting. An employee can be fired for no reason, but an employee cannot be legally fired for the wrong reason. Firings for race, gender, ethnic background, religion, disability, and retaliation are the wrong reasons, and such firings are illegal. If your employer fired you illegally, you might have grounds to file a wrongful termination suit against your employer.
Employer Discrimination
Title VII of the Civil Rights Act and the Americans with Disability Act prohibits employers from discriminating against employees based on gender, nationality, religion, disability, and other protected classes. If you believe your employer violated these discrimination laws or you were wrongfully terminated due to discrimination, you may be able to sue your employer.
Employer Harassment
There are various forms of workplace harassment, the most common being sexual harassment. Harassment may come directly from your employer or a co-employee. In both situations, you have grounds to sue your employer if they fail to do something about harassment from a co-employee.
Does Your Law Firm handle employment law claims?
We do not handle employment law claims. We do workers compensation claims. It’s important to note that employment law is not workers’ compensation law. However, we can refer you to an employment attorney whose practice focuses on employment law. Your employment lawyer will be able to provide legal help for employment law cases.
What’s the Difference Between Employment Law and Workers Compensation Law?
This page says it all: Employment Law vs Workers Compensation Law
We Can Assist With Your Workers’ Compensation and/or Third Party Claim
Regardless of the circumstances surrounding your L&I claim, an experienced legal team can make a considerable difference in the outcome of your case.
If you’ve suffered an on-the-job injury and believe the assistance of a supportive legal team will benefit your case, schedule a complimentary consultation we’ll talk and help you figure out what to do.
