Dan’s Workers’ Comp Tip of the Month
The following employees who work in New York State are NOT covered by “regular” New York State Workers’ Compensation:
1. New York City uniformed fire, sanitation and police.
2. New York City teachers.
3. Federal Government employees
4. Electricians in Local 3
In each case listed above, these occupations are “exempted” out of the regular NYS Workers’ Comp system and have their own internal system or a different law that applies.
Everyone else – most employees- are covered by the New York State Workers’ Compensation Law if injured at work.
I get this question all the time. My clients can be hospital workers, maintenance men, teachers, machine operators, carpenters, cooks, you name it. Some are union members, some are not. Almost all are initially worried that if they hire me, that it will somehow threaten their job. A job that they cling to for dear life, a job that they need to hold onto to survive. “Will my employer fire me” is a legitimate concern. Here’s how I advise injured workers about these types of issues:
- You didn’t intend to be injured at work. It just happened by accident, and you shouldn’t be made to feel guilty because of it or feel you need to give up your rights to help your employer. Workers’ Comp (“WC”) says you have certain rights, and those are your rights whether you get a lawyer or not. WC is NOT a lawsuit. WC is a claim for benefits, similar to unemployment.
- Employers are prohibited by law from retaliating against injured workers who claim Workers’ Comp (“claimants.”) Section 120 of the law says that an employer can be fined and assessed monies if they retaliate against an injured worker because the worker filed a claim. These cases do happen; but, truly, not too often, from what I have seen.
- In real life, there can be intimidation at work by the boss. There can be implied threats by the boss. This does go on. In my 30+ years of experience, however, I have rarely if ever seen an instance of a worker getting fired because he/she hired a Workers’ Comp attorney.
- Almost every day I look at the Judges’ Calendar at the Workers’ Comp Board which lists every comp case on the docket that day—dozens and dozens of cases at each hearing point. I would guess that 75-80% of all cases have a lawyer on them for the claimant. So it’s almost expected.
- The employer and its insurance company ALWAYS have a lawyer or representative at WC hearings, so why shouldn’t the claimant?
- You can be fired in New York State if the reason is “legitimate”. Some union contracts add additional protections for workers. In truth, I find that most often, it is a multitude of factors that lead someone to get fired, and that filing WC claims is most often looked down upon by employers only when an employer feels that the employee is being excessive and files many, many claims that are trivial or frivolous.Which does happen sometimes (not in my office, though!)
The bottom line is, workers need to be aware of their rights. WC is a very complicated system, and to even the playing field, workers deserve adequate representation without fear of being fired for exercising their rights.