Texas Labor Code - Section 406.033. Common-Law Defenses; Burden Of Proof
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§ 406.033. COMMON-LAW DEFENSES; BURDEN OF PROOF. (a) In
an action against an employer who does not have workers'
compensation insurance coverage to recover damages for personal
injuries or death sustained by an employee in the course and scope
of the employment, it is not a defense that:
(1) the employee was guilty of contributory
negligence;
(2) the employee assumed the risk of injury or death;
or
(3) the injury or death was caused by the negligence of
a fellow employee.
(b) This section does not reinstate or otherwise affect the
availability of defenses at common law, including the defenses
described by Subsection (a).
(c) The employer may defend the action on the ground that
the injury was caused:
(1) by an act of the employee intended to bring about
the injury; or
(2) while the employee was in a state of intoxication.
(d) In an action described by Subsection (a) against an
employer who does not have workers' compensation insurance
coverage, the plaintiff must prove negligence of the employer or of
an agent or servant of the employer acting within the general scope
of the agent's or servant's employment.
(e) A cause of action described in Subsection (a) may not be
waived by an employee before the employee's injury or death. Any
agreement by an employee to waive a cause of action or any right
described in Subsection (a) before the employee's injury or death
is void and unenforceable.
(f) A cause of action described by Subsection (a) may not be
waived by an employee after the employee's injury unless:
(1) the employee voluntarily enters into the waiver
with knowledge of the waiver's effect;
(2) the waiver is entered into not earlier than the
10th business day after the date of the initial report of injury;
(3) the employee, before signing the waiver, has
received a medical evaluation from a nonemergency care doctor; and
(4) the waiver is in a writing under which the true
intent of the parties is specifically stated in the document.
(g) The waiver provisions required under Subsection (f)
must be conspicuous and appear on the face of the agreement. To be
conspicuous, the waiver provisions must appear in a type larger
than the type contained in the body of the agreement or in
contrasting colors.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2001, 77th Leg., ch. 1456, § 16.01, eff. June 17, 2001;
Acts 2005, 79th Leg., ch. 265, § 3.031, eff. Sept. 1, 2005.
Section: 406.008 406.009 406.010 406.011 406.012 406.031 406.032 406.033 406.034 406.035 406.051 406.052 406.053 406.071 406.072
Last modified: August 10, 2007
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