What Your Employer Cannot Do After a Job Site Injury

Workers’ Compensation Retaliation Is Illegal in New York

Workers’ Compensation Law makes it unlawful for an employer to fire or discriminate against an employee because they have claimed, or attempted to claim, compensation. Unlawful retaliation can take the form of:

• Firing or laying you off shortly after you report the injury or file a claim;
• Refusing to bring you back when your doctor clears you to return;
• Demoting you or cutting your hours after the claim is filed;
• Reassigning you to worse shifts or harder work as a signal to others; or
• Disciplining you on pretext, such as writing you up for minor issues that were previously ignored.

Complaints against a retaliatory employer must be filed within two (2) years of the retaliatory act, as per the state’s statute of limitations. If the Board finds that the law applies in your case, it may order the employer to restore the worker to employment and to pay lost compensation and medical bills, along with attorney’s fees.

Wrongful Termination After a Work Injury: What Employers Cannot Do

Beyond outright retaliation, New York law prohibits a range of conduct that employers sometimes use to discourage or minimize injury claims.

• Your employer cannot refuse to report the injury. By law, an employer must report an accident to the Workers’ Compensation Board and its carrier within ten days if the injury causes lost time beyond the day or shift of the accident, or requires medical treatment beyond ordinary first aid. An employer who fails to report commits a misdemeanor and may also face a penalty of up to $2,500 imposed by the Board.
• Your employer cannot make you pay for workers’ compensation. Any agreement by an employee to pay any portion of the cost of compensation coverage is invalid, and an employer who deducts those costs from wages is guilty of a misdemeanor.
• Your employer cannot choose your doctor. Injured employees have the right to select any authorized provider. An employer may have you attend an independent medical examination arranged by its carrier, but it cannot require you to treat only with a company doctor.
• Your employer cannot pressure you to use your own health insurance coverage. Encouraging a worker to submit a job injury to private health insurance, or to “handle it off the books,” is a common way of avoiding a compensation claim. It can also leave you without wage replacement and expose you to repayment demands later. The injury should be reported as a work injury.
• Your employer cannot waive your rights for you. A worker cannot be required to sign away the right to compensation as a condition of keeping the job. Be cautious of any document presented after an accident that describes the event as non-work related or says you declined treatment.

New York Whistleblower Protection Under Labor Law § 740

Labor Law § 740 prohibits an employer from taking retaliatory action against an employee who:

• Discloses or threatens to disclose to a supervisor or a public body an activity, policy, or practice the employee reasonably believes violates a law, rule, or regulation, or poses a substantial and specific danger to public health or safety;
• Provides information to or testifies before a public body conducting an investigation; or
• Objects to or refuses to participate in such an activity, policy, or practice.

If you were found engaging in protected activity like those described above, you are protected under NY retaliation law.

How to File an OSHA Retaliation Complaint: Act Quickly

Federal law provides an additional layer of protection. Section 11(c) of the Occupational Safety and Health Act prohibits retaliation against workers who report injuries or raise safety concerns, and OSHA’s recordkeeping regulation specifically bars employers from discharging or discriminating against an employee for reporting a work-related injury or illness.

However: the deadline is extremely short. A viable OSHA whistleblower complaint must generally be filed within 30 days of the retaliatory act. Because New York’s state remedies have longer deadlines and broader relief, an OSHA complaint is often one piece of a larger strategy rather than the whole of it.

How Retaliation Affects Your Construction Accident Claim

Retaliation claims and injury claims are separate, but they are closely connected. In many job site accidents, the injured worker also has a third-party claim against the property owner, general contractor, or equipment manufacturer. Those claims can provide compensation for pain and suffering and full lost earnings, which workers’ compensation does not pay.

Retaliation can undermine those claims in practical ways. A worker who is pressured not to report, who signs an inaccurate incident statement, or who is fired before photographs and witness names are collected may find the evidence harder to assemble later. A safety complaint made before the accident, on the other hand, can be powerful proof that the hazard was known and ignored.

How to Protect Yourself After Reporting a Workplace Injury

• Report the injury in writing. Notify your employer within 30 days as required by Workers’ Compensation Law § 18, and keep a copy or a photograph of what you submitted. Save all communications; texts, emails, voicemails, and schedules can show a pattern that is otherwise difficult to prove.
• File your own claim. You may file a Form C-3 with the Workers’ Compensation Board directly. You do not need your employer’s permission. Record the date of the accident, the date you reported it, and every change in your hours, assignments, pay, or treatment by supervisors afterward.
• Write down who was on the site. Coworkers, other trades, the general contractor, and equipment suppliers may all be witnesses or responsible parties. Collect contact information and, if you can, collect early statements on video of what they saw.
• Watch the deadlines. Some retaliation remedies must be pursued within 30 days of injury, while others allow two years from the date of the accident. Your injury claims have their own limitations periods.
• Speak with a lawyer early. Coordinating the compensation claim, any third-party lawsuit, and any retaliation claim prevents one from undermining another. Do not sign statements you have not read carefully; if an incident report misstates what happened, say so in writing.

Disability Discrimination and Reasonable Accommodation After a Job Injury

The New York State Human Rights Law prohibits discrimination on the basis of disability and requires employers to provide reasonable accommodations, such as modified duties or a temporary schedule change, unless doing so would impose an undue hardship.

An employer that refuses to engage with a returning worker’s restrictions, or terminates a worker because of the injury itself, may face a claim with the New York State Division of Human Rights or in court. In New York City, the New York City Human Rights Law provides even broader protection.

Speak with a Construction Accident Lawyer in White Plains, NY

Talk to a White Plains Construction Accident Lawyer

Martin+Colin, P.C. has represented injured workers throughout Westchester County, New York City, and the Hudson Valley for decades. Our recoveries include a $2,200,000 settlement for a worker crushed by falling metal plates and a $1,200,000 settlement for a concrete pump operator struck by swinging equipment. We also handle wrongful death actions in New York State.

Frequently Asked Questions

Can my employer fire me for filing a workers’ compensation claim in New York?

No. Workers’ Compensation Law prohibits an employer from discharging or discriminating against an employee because the employee claimed or attempted to claim compensation. New York is an at-will employment state, so an employer may still discipline or terminate a worker for a legitimate reason unrelated to the claim.

Can I be fired while I am out on workers’ compensation?

An employer cannot terminate you because you filed the claim, and it may have obligations under the Human Rights Law to consider reasonable accommodations when you are able to return. However, being on workers’ compensation does not by itself guarantee that your position will be held indefinitely. Federal and state leave laws may also apply depending on the size of the employer and your eligibility. Each situation depends on its facts.

What if my supervisor told me not to report the injury?

Report it anyway, in writing, and keep a copy. Discouraging a worker from reporting an injury can itself support a retaliation claim, and the employer has an independent duty under Workers’ Compensation Law § 110 to report qualifying accidents. You may also file a claim directly with the Workers’ Compensation Board.

Does New York’s whistleblower law protect me if I reported a safety hazard before I was hurt?

Yes. Labor Law § 740 protects employees who disclose, or threaten to disclose, a practice they reasonably believe violates the law or poses a substantial and specific danger to public health or safety. Labor Law § 215 separately protects complaints about Labor Law violations, which include the state’s construction safety statutes. A prior safety complaint can also be important evidence in your injury case.

I am an independent contractor. Am I protected?

Possibly. Labor Law § 740 expressly includes certain independent contractors in its definition of employee. Whether you are covered by the workers’ compensation system and § 120 depends on the actual working relationship, not just the label on your paperwork. Misclassification of construction workers is common, and the answer often requires a closer look.

Can my employer threaten to report my immigration status?

No. Both Labor Law § 740 and Labor Law § 215 specifically define threatening to contact, or contacting, immigration authorities about a worker or a worker’s family member as prohibited retaliation. Immigration status also does not bar an injured worker from pursuing a third-party claim against an owner or contractor under New York’s Labor Law.

Can I file both a retaliation claim and a personal injury lawsuit?

Yes. They are separate claims with separate deadlines and remedies. A retaliation claim addresses what the employer did after the injury report. A third-party personal injury claim addresses the injury itself and is brought against parties other than your employer, such as the property owner or general contractor. Coordinating them is part of protecting the full value of your case.

Related reading

• Workers’ Compensation
• Construction Accidents
• Scaffold Accidents
• Ladder Accidents