Worker’s compensation protects employees who suffer on-the-job injuries. The worker’s compensation scheme was devised back in the 1920’s and 1930’s as a way to prevent lawsuits against employers. The intent was to provide some modest level of compensation for workers who get injured. In return, employees would give up the right to file personal injury lawsuits against their employer. Employers would then avoid unpredictable lawsuits which could result in large verdicts.
Over time it became necessary to provide incentives for employers not to take action against employees who file worker’s compensation claims. The Texas Labor Code provides for a lawsuit based on worker’s compensation retaliation. See Sec. 451 of the Texas Labor Code. If a worker suffers reprisal for filing a worker’s compensation claim, then that worker can sue the employee for retaliation.
In recent years, the Texas courts have limited the worker’s comp protections. In the 1990’s, for example, the Texas Supreme Court addressed the situation concerning employers who are not enrolled in the Texas Worker’s Compensation System but who do have some sort of health insurance for workers who get injured. These employers are considered to be "self-insured" for purposes of worker’s comp insurance. Would such employers be subject to the anti-retaliation provision? No, said the Texas Supreme Court. Such employers are not included in Sec. 451. That is, if an employer is self-insured, they can fire an employee who files a on-the-job injury health claim. Firing such an employee would not be retaliation under Sec. 451. See Texas Mexican Railway Co. v. Bouchet, 963 S.w.2d 52 (Texas 1998).
Now, the Texas Supreme Court has held that local governmental subdivisions are not covered by Sec. 451 either. In fact, they have overruled their prior decision to the contrary, City of La Porte v. Barfield, 898 S.W.2d 288 (Tex. 1995). In this new decision, the Supreme Court has found that Sec. 451 did not waive governmental immunity, after all. See Travis Central Appraisal District v. Norman, No. 09-0100 (Tex. 4/29/2011). The Court bases its decision on some amendments to Sec. 504, a companion article, which, in the view of the Court, retracted prior waiver of governmental immunity.
Governments must waive immunity to be sued. That is a precept as old as the United States. So, now, according to the Texas Supreme Court, the state legislature did not waive governmental immunity. Government workers can now suffer retaliation if they pursue their right to file a worker’s compensation claim.