As attorneys representing workers injured on the job, we are often asked, “can I sue my employer?” This is a reasonable question especially when the injured employee can point to faulty equipment, a supervisor or fellow employee’s role in causing the accident, or another failure on the part of the employer in causing the accident. Despite the blame that may be attributable to the employer- the short answer is “probably not.” The basis for likely being unable to sue your employer comes from the historical development of workers’ compensation laws in the United States.

At the turn of the century, the Industrial Revolution of the early 1900’s saw a sudden explosion of manufacturing and economic development. Factories and workers transformed cities into powerhouses of commerce, but there were little to no protections for workers and laborers. Poor work conditions, long hours, and unsafe environments led to tragedies. Some workers organized into unions in an attempt to better their wages and conditions – but to no avail. In 1908, President Taft signed into law the first federal legislation that protected railroad workers- the Federal Employers Liability Act. But widespread public support for protection of those injured on the job lagged. On March 25, 1911, a fire broke out at the Triangle Shirtwaist Company in New York City, killing 146 young workers, mostly women. They were trapped in the factory because managers locked the exit doors to prevent them from taking breaks. Public outrage grew when it was learned only 23 families received $75.00 as compensation for the fiery factory deaths.

A groundswell of support for workers’ compensation law arose in the aftermath. The result was a “no fault” system of workers’ compensation which was modeled after laws enacted by Germany in prior decades. This no fault arrangement became known as the “Grand Bargain. ” Employees would not have to prove the fault of the employer in causing the injury nor would the employee be denied benefits if he was at fault for the injury. Injured employees would receive medical treatment for their injuries and wage loss benefits; in turn, the employers were insulated from being sued by their injured employees. It is against this historical backdrop that we find Virginia’s own approach to the options of injured workers and their employers.

Virginia Code Section 65.2-307 is known as the exclusivity provision, meaning that if the worker’s injury is found to have arisen out of his employment, his sole and exclusive remedy is to pursue the benefits afforded to him by the Act. Code Section 307 (A) states “the rights and remedies herein granted to an employee… shall exclude all other rights and remedies of such employee.” Thus, if injured on the job, the employee is limited to seeking workers’ compensation benefits; all other “rights and remedies” such as suing for torts (negligence, intentional infliction of emotional distress, assault, and battery) are not an option for the injured worker. In excluding these other causes of actions, injured workers also cannot be compensated for pain and suffering.

While at first glance, such a limitation seems to be oppressive and unfair, there are some advantages. For example, an injured worker does not have to sue his or her employer in a court of law -previously the only method of getting benefits. Additionally, as most injuries arise out of pure accidents, the injured employee does not need to prove that he or she was without fault. Additionally, even if he or she was negligent or careless, benefits are still payable. Of course, there are always exceptions to the rule, one being that the insurance carrier will defend claims if the injured employee violated a known safety rule. So, while generally speaking, if you are hurt at work you cannot sue your employer, we encourage you to speak with one of our attorneys if you get hurt on the job. The law is complex and nuanced and we can help guide you through the challenges of the workers’ compensation system.