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California employers are required to have Workers’ Compensation insurance.   If an employee is injured or becomes ill because of work, the employer is required to pay Workers’ Compensation benefits. There are some exceptions to this rule, specifically, involving sole proprietorships and/or companies with no employees.

It is a criminal offense for an employer not to have Workers’ Compensation coverage.  California Labor Code §3700.5 provides that the failure to maintain Workers’ Compensation insurance is a misdemeanor, punishable by imprisonment for up to one year in the county jail, and/or fines of not less than $10,000.00.

So what happens if the employer is uninsured?   The first and best advice that can be provided,  is to seek competent legal representation. There are several options available to the injured worker.  An injured worker may submit a claim to the California Uninsured Employers’ Fund.   A second alternative is to file a civil action against the employer.  There is a possibility of collecting against the employers’ liability insurance carrier, if any, should there also be a lack of Workers’ Compensation insurance.

Filing a civil action against an uninsured employer is governed by Labor Code §3706 and the California Code of Civil Procedure §338(a).   While most negligence cases in California have a one or two year statute of limitations, the law provides for a three year statute from the date of injury to bring a civil lawsuit against your uninsured employer.  The potential damages available to the injured worker include, but are not limited to an enhancements for increased benefits due to the lack of Workers’ Compensation insurance, pain and suffering, and even the possibility of punitive damages.

The long and short of the process to obtain benefits for an injured worker from an uninsured employer is both tedious and demanding.  Once again, the best advice that can be given is to seek representation by attorneys familiar with the Workers’ Compensation laws of the State of California, as well as the potential for civil litigation, possibly against both “second” and “third” parties for damages. The attorneys at Heiting and Irwin are available for all such consultations on Workers’ Compensation and personal injury matters.

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