Can I Sue My Employer After a Robbery?

You probably cannot bring a civil lawsuit, but you may be able to file a workers' compensation claim and recover workers' compensation benefits. Generally, if you accept workers' comp benefits, you cannot then sue your employer. But if your workers' compensation claim is denied, your employer lacks workers' compensation insurance, or your employer was grossly negligent, you may be able to sue your employer in court.

A workers' compensation lawyer could advise you on your options and help you decide how to proceed. And if you do need to go to court, you should consider hiring a good personal injury attorney. Many lawyers practice in both areas. An employment lawyer may be able to shed some insight as well.

Surviving a Workplace Robbery

Being the victim of a crime, particularly an armed robbery, can be traumatizing. Suppose you are an employee at a gas station. It's late at night and you're alone in the store. Suddenly, someone comes in, holds you at gunpoint, and demands all the money in the cash register. You comply and they leave.

But it's not over for you. In fact, that's just the beginning. After you've reported the crime, given your statement, and the law enforcement officer leaves, you sit down. You're shaking. You feel nauseated. You go home, but you can't sleep. It's that way for what feels like weeks. When you do sleep, you have nightmares.

When you're at work, you feel like you're going through the motions. Until a customer comes in. Then you break out in a sweat as you relive the robbery. You end up taking a two-week leave.

You can't live this way, so you decide to see a psychiatrist. They diagnose you with PTSD (post-traumatic stress disorder) and prescribe medication. They refer you to a psychologist, who sets up weekly appointments for you. After a few months, you do feel better. But the nightmares don't go away.

So where does this leave you? With a lot of medical bills, lost wages, and emotional distress. You cannot afford to bear this loss. In theory, you could file a lawsuit against the robber to get compensation, but in practice this is nearly always a dead-end. You may not be able to find the robber, let alone sue. Even if the robber is caught and convicted, suing may not amount to anything since it's unlikely the robber has any money. Often, that means the only option for help in your recovery is through your employer.

What Is Robbery?

Let's start with a definition. What is robbery?

In general, it's the taking of someone else's property by force or threat of force. It's the force that distinguishes the crime from theft or shoplifting.

There are slight differences in the elements of the crime, depending on which state you're in. For example, in some states, the use or threat of force must be imminent. In some states, you don't have to successfully take the property to be charged with robbery. 

Workplace Robbery

Workplace robbery is common. In the United States, about 50,000 businesses are robbed each year. One in every 5,000 workers in the U.S. over the age of 16 is a victim of a workplace robbery. There are about 160 million people in the workforce, so it's fair to say that thousands of people every year will be the victim of a robbery while on the job.

Businesses that get robbed the most include:

• Commercial houses (malls, retail stores, restaurants)
• Gas stations
• Convenience stores
• Banks

Some of the risks associated with these businesses include:

• Exchanging cash with the public
• The serving of alcohol
• Being open late at night
• Being in a high-crime area
• Employees working alone

Workers' Compensation

After doing your research and perhaps consulting a lawyer, your first step towards compensation should be to file a workers' compensation claim.

What Is Workers' Compensation?

Workers' compensation is a system in every state in which employees who are injured on the job can receive benefits without having to prove that someone was at fault. Most employers are required by law to carry workers' compensation insurance. In exchange for benefits, employees are generally barred from suing their employer for workplace injuries.

Workers' compensation benefits can include the following:

• Medical bills and other health care expenses
• Out-of-pocket expenses
• At least some portion of your lost wages (in many states, it's two-thirds)
• Compensation for any permanent injuries
• Costs for retraining
• Death benefits if you are killed on the job

Note that while workers' compensation benefits generally do not include pain and suffering, at least some courts have allowed compensation for PTSD. Courts are beginning to treat PTSD like any other work injury.

Procedures for Getting Workers' Compensation

We describe the claims process here. Although workers' compensation laws vary from state to state, there are some common steps.

Step One: Get Medical Attention

The first is that you should seek any necessary medical treatment. Take care of yourself before you worry about the money. You can't receive workers' compensation before being diagnosed by a medical professional in any case.

Step Two: Notice of Claim

The next step is that need to notify your employer and their insurance company in writing of your claim. Your employer will likely provide you with a claim form that requires you to disclose details about the circumstances of the robbery and your injuries. Make sure you keep all of your bills and be able to turn those over to the workers' compensation insurance company.

You have a limited time (in some states, we're talking days) in which to give them notice, so you need to do this as soon as you can.

Step Three: Submit Claim to Employer's Insurance Company

Then, either you or your employer will submit your claim to their workers' comp carrier. The carrier will then either approve or deny your claim and submit its determination to the appropriate state agency.

What To Do if Your Claim Is Denied

If your claim is approved, great. If it's denied, you have a few options.

The first is that you can contact the insurance adjuster. You may be able to work out a solution with them directly.

The second is to try to work it out through alternative dispute resolution (ADR). Many states have workers' compensation ADR specialists that may be able to help you. Contact your local department of labor or the specific workers' compensation agency directly. You may be able to get this information online.

The third is to appeal the denial. You can request a hearing with the appropriate agency by filing the proper forms. Many people choose to have a workers' compensation attorney help them prepare and file the paperwork and represent them in the agency proceedings.

Remember that there are deadlines set by state law. You can find your state's applicable statute of limitations here. A good attorney can help make sure you don't blow your deadline.

Lawsuit Against Your Employer

As we said, if you get workers' compensation benefits, you are barred from suing your employer. That's the exchange for not having to prove that someone was at fault.

But perhaps your employer didn't carry workers' compensation insurance. In that case, you may be able to file a lawsuit against your employer, even if you were robbed in the parking lot, if you can show that they were negligent.

Negligence

The elements of a negligence claim are pretty straightforward:

• Duty: Your employer owed you a duty to act as a reasonably prudent person in the same or similar circumstances (that is, a safe workplace reasonably free from danger)
• Breach of Duty: Your employer failed to act accordingly
• Causation: The breach of duty caused reasonably foreseeable injuries
• Damages: You suffered losses that you can get legally compensated for (note that you may be able to recover damages for pain and suffering in a negligence case)

Whether you can show that your employer breached their duty of care to you will depend on the circumstances. Those would include:

• The location of the business (e.g., if you are in a high-crime area, your employer would need to take greater precautions)
• Any security precautions taken (e.g., security cameras, lights in the parking lot, etc.)
• Any notice of prior robberies in the area

Negligence Per Se

Sometimes proving negligence is hard. But in some cases, the law may give you some help. There is a doctrine called “negligence per se." According to this doctrine, some acts are considered inherently negligent because they violate a statute or a regulation. The effect is to shift the burden to the employer to prove that they acted with reasonable care instead of you having to prove they didn't.

And there is a regulation you may be able to rely on. The Occupational Safety and Health Administration (OSHA) has a regulation that is referred to as the General Duty Clause. This clause requires employers to provide a place of employment “free from hazards that are likely to cause death or serious physical harm."

States have different views on whether an employer's violation of this clause is negligence per se sufficient to require the employer to prove they weren't negligent. Some states do, some consider it just evidence of negligence but not enough to shift the burden of proof to your employer, and in at least one state (Mississippi), a violation is not admissible to prove negligence. It can get complicated, but as you can see, where you are located makes a difference.

Gross Negligence

We should point out that in certain states, you may be able to sue your employer despite workers' compensation if you can show that they were grossly negligent. To show gross negligence, you need to essentially demonstrate that your employer failed to exercise slight care to protect against an unreasonably high risk of harm.

Take our situation as an example. Suppose you weren't the first robbery at the gas station that month. Or even that week. And virtually every store on the block had been robbed multiple times before. Your employer had no security cameras at the place. The lights in the parking lot had burned out and your boss was too lazy to replace them. This may amount to gross negligence that might allow for a lawsuit.

Consider Consulting With an Attorney If You Are the Victim of a Workplace Robbery

If you are the victim of a workplace robbery and suffer losses or injuries, you may be able to get at least some compensation through or from your employer. Start with workers' compensation. You may be able to handle the initial process on your own.

If you have questions or if your claim is denied, consider speaking with a good workers' compensation attorney. They can help you file the forms, prepare your case, and possibly get you benefits.

If your employer didn't have insurance or you believe your employer was grossly negligent, you may be able to bring a civil lawsuit. An experienced personal injury attorney can give you legal advice and represent you in court. Again, many lawyers work on both types of cases, so you may be able to get by with one law firm. And if there are aspects of your case that relate particularly to employment law, an employment lawyer can help. Many lawyers offer a free consultation.