The General Rule is NO – You Cannot Sue Your Employer for Negligence that Causes a Job Injury.
In Washington State the usual rule is you cannot sue your employer or a co-worker for an L&I job injury. The employer has immunity from an employee lawsuit. The L&I system replaces your ability to sue your employer for his negligence. It doesn’t matter that it’s your employer’s fault – you cannot sue him for an on the job injury.
The Exceptions to the Rule of Employer Immunity.
There are at least three exceptions to the rule of employer immunity:
- Intentional Injury
- Non L&I Claim
- Temporary Agency Employee
1. Intentional Injury Exception
The exception to this rule is that you can sue your employer or co-worker if he injured you intentionally. RCW 51.24.020. However that is not as easy as it sounds. Case law requires that:
1) The employer have actual, certain knowledge that the injury would occur; and
2) The employer willfully disregards that knowledge.
The intentional injury exception to the rule is difficult to prove. Most persons who act intentionally, still don’t intend the injury. For example, the employer who intentionally remove the machine guard, will probably avoid an intentional injury lawsuit when he claims he didn’t intend an injury. On the other hand, the employer or co-worker who throws a punch at you and is trying to hurt you can probably be sued. In both above examples, you will still have an L&I claim, and in the case of the thrown punch you will also have an intentional injury claim.
The upside of an intentional injury claim is that you can have both an L&I claim and an intentional injury claim. Also, there is no L&I lien on an intentional injury claim against the employer.
The downside of an intentional injury claim is that once you prove intentional injury, the defendant may lose his insurance coverage. Also, there is an L&I lien on the intentional injury claim proceeds if the intentional injury was caused by a co-employee.
2. Non L&I Claim Exceptions – Wrongful Termination and Employment Law Claims
You can sue your employer in many circumstances if your claim isn’t primarily about your job injury. Employment discrimination, sexual harassment, failure to accommodate, and many other employment law situations do let you sue your employer.
These are not L&I cases, these are employment law cases. If you call us about an employment law case we will refer you to an attorney who focus his or her practice on employment law. See also: Employment Law is Not Workers’ Compensation Law
3. Temporary Agency Employee Exception
Temporary employees who work out of an agency or placement service are a special case. The same rules apply, however the players are in different positions, so the game looks different.
When a temporary employee is injured
- The place of employment where the worker was sent is a third party and not the employer
- The temporary employment agency is the employer
- The injured worker has two claims, so long as they were not injured at the temporary agency:
- An L&I claim against the agency employer
- A third party claim if there was negligence at the work site of the third party employer
- For more information on temporary agency employee lawsuit rights see: Temporary Agency Employee Lawsuits and L&I Job Injuries
- For more information on third party claims see: Third-Party Claims.
