New York forbids discrimination against workers’ compensation claimant

New York law forbids employer discrimination for asserting workers’ compensation rights.

When a New York employee is injured on the job or gets an occupational illness, a workers' compensation claim is normally his or her exclusive legal remedy against the employer. Accordingly, state law forbids the employer from discriminating against a worker who asserts his or her right to seek workers' compensation benefits.

For example, the employer may not fire, demote, discipline or otherwise discriminate against such an employee solely because he or she filed a workers' compensation claim for benefits or indicated that he or she planned to do so. This type of employer action is also sometimes referred to as illegal reprisal or retaliation.

Workers' compensation sets up a system in which the fault behind a work injury or disease is no longer relevant. The employee is normally guaranteed employer-provided benefits regardless of whose fault the injury or illness was. In exchange for this automatic benefit (assuming other qualification requirements are met), the employee may normally not sue the employer for the harm.

It makes sense - given the public policy behind the existence of the workers' compensation system - that an employee should not be treated negatively in any way by his or her employer for asserting state-guaranteed workers' compensation rights. New York law since 1973 has supported this by prohibiting related discrimination.

Specifically, New York statute declares it unlawful for an employer or its agent to fire or discriminate in any other way against an employee asserting a workers' comp claim or testifying in a workers' compensation proceeding before the New York State Workers' Compensation Board. The employer must have had another "valid reason" for taking the negative employment action.

An employee who believes that he or she was the victim of employer retaliation for asserting workers' comp rights has two years to file a complaint with the Board. If the Board finds discrimination existed, it may order that the employee be rehired or "otherwise restored to the position or privileges" lost. The Board may also order repaid any lost compensation as well as legal fees incurred in bringing the discrimination claim.

The Board must also fine the employer from $100 to $500 payable to the state treasury. This fine may not be covered by insurance, but is to be paid directly by the employer.

Unless the employer has requested review of the discrimination finding, the parties must report to the Board within 30 days about the employer's compliance. Failure to appropriately report or comply with the original order within 30 days gives the agency chair in the case or the employee with chair permission the right to enforce the anti-discrimination order or penalty as if it were an award of compensation.

Making a claim of discrimination or retaliation against an employer under these circumstances can be difficult for an employee because he or she must be able to show a connection between the negative employment action and the assertion of workers' comp rights. It may be hard to get internal employer information about the employer's true motivation and the employer may be able to show a problem with performance or insubordination that could otherwise justify such an action.

For this reason and others, it can be extremely important for such an employee to seek legal counsel as early in the process as possible. A New York workers' compensation lawyer will know how to investigate and present a claim of retaliation to the Board and on appeal within the agency or to court, if necessary. The New York City law firm of Alan M. Cass & Associates handles retaliation and all other types of workers' compensation claims.

Keywords: New York, employer discrimination, retaliation, workers' compensation, claim, injury, occupational illness, benefits, reprisal, fault, fire, New York State Workers' Compensation Board, complaint, fine