Can You Get FIRED For Filing Workers Comp in New York?

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Can You Get FIRED For Filing Workers Comp in New York?

Hi everybody, this is Rex Zachofsky! I’m a New York Workers Compensation Attorney. If anybody has any questions, you can always give us a call here 212-406-8989. I'm going to answer some questions today. I've been getting a lot of questions about can I get fired for filing for workers' compensation? What what if my boss retaliates against me? So I'm going to answer some questions today. If you have any other follow ups, please let me know.

Let's start with the first question...

Is it legal for your employer to fire you? If not, does it still happen?

Well, this is a very, very difficult question. We get this a lot, actually. Is it legal for your employer to fire you? Unless you're a contracted employee, New York State is an at-will employment state, which means...

Okay, the question is: Is it legal for your employer to fire you? And if not, does it still happen? New York is an at-will employment state, which means unless you are a contracted employee, and a contracted employee is Derek Jeter. Okay. Very few people are contracted employees in New York State. Most of us are at-will employees, or people who could be hired and fired for virtually any reason. You can't be discriminated against, but your employment is at will, so your employer can fire you. Now, if they fire you for filing for or participating in a workers' compensation claim, you can file a New York State Workers' Compensation Discrimination action.

These are handled by the Workers Compensation Board. You would contact the board and they would help guide you to filing and pursuing a claim of that nature. But this makes it difficult because since New York is an at-will state, many employers will discriminate against somebody for filing a workers' compensation claim and then chalk the firing up to them being a bad employee, or them showing up late, or being insubordinate, or something like that.

So it's a very difficult case to prove. You have to have pretty strong evidence that they discriminated against you when they fired you. It does happen from time to time, and it's not as frequent as people think. A lot of people come to my office and come to me with their case, and they're very, very fearful that they're going to be fired for pursuing a claim. And it very rarely happens. I think employers are smart enough to know that if they discriminate against you and take adverse action against you, that it will be used against them. So it happens a lot less frequently than people think.

Here's a little side question that just popped up here. The best time to call me at the office is Monday through Friday, 9:00 to 5:00. And if I'm not here, my staff is always here to answer the call. But we can always take care of you. But we have straight up work hours, Monday through Friday, 9:00 to 5:00. Moving along.

Do employers ever retaliate for filing a workers' compensation claim?

Again, it's a lot less frequently than than you would think, but it does happen. And the rule is that an employer cannot discriminate against the person for filing for or participating in a workers' compensation claim.

So if you testify on behalf of a coworker that you saw fall off a ladder, for instance, and you get fired for for being a witness in somebody else's case, you can file a workers' compensation discrimination action. And it's not a bad idea to do it, because that's really horrible for a boss to do that. Somebody, by the same token, if you file your own claim for your own accident, injury, or disability, and they discriminate against you, you could file a New York State workers' compensation discrimination action.

And similarly, if you're fired for another reason, if you're fired for gender, sex, sexual orientation, religious orientation, any of the covered types of exemptions, if you're fired for the wrong reason, you can file a discrimination action outside of the workers' compensation sphere. There's a lot of government, state and local governmental agencies, that handle those types of cases. But you would be doing yourself a great benefit by pursuing that, if that were in fact to have happened. We are sorry when we hear about those things.

Is your employer required to hold your job for you?

Uhhh... No. This is another misconception that we hear about all the time. I get calls probably, just about every day, I get a bunch of calls a week where somebody is yelling and screaming that my boss filled my job. They filled my position, they terminated me. They didn't hold my job for me. How could they do that to me? I got hurt working for them, and then they just moved on and they hired somebody else! Or they fired me!

Workers' compensation is in place to protect you, the injured worker, but it's also in place to protect the employer to some degree. And this is one of those circumstances where things happen that, unfortunately, don't help the injured worker.

I always tell my clients, “You have to imagine a job, any employment, any any company, operating almost like Henry Ford's production line. And if the guy whose job it is to put the tires on the car gets hurt and can't put the tires on the car, the whole assembly line shuts down. So what do they have to do? They have to hire somebody else to put the tires on the car.”

Employers are allowed to replace injured workers because they’ve got to keep their business going. And it's understandable when you think about it from that perspective. And to be frank, it sucks for the guy or girl who got hurt! So they're not required to hold your job, or hold the job for you. Many do! And we kick and scream when they don't, and we try to make a big deal about it, but it's not a formal requirement unfortunately. Sorry for being the bearer of bad news!

What does it mean for your benefits if you lose your job while on workers' comp?

It means, generally—and listen for any of these questions there are always exceptions, but generally speaking—it means nothing! If you get hurt on the first minute of the first day of your first job ever, and you are disabled to the point that you can never work again, you are entitled to workers' compensation benefits for as long as you need them to be there. So losing your job does not necessarily mean you're going to jeopardize your benefits in any way.

There are certain circumstances where it does come into play. For instance, if you did get hurt on a particular job and you returned to work after some period of of being out, and after you'd return to work at perhaps a partial disability with some impairment, you were fired for a different reason, well then that could present a problem. But it doesn't mean your case is closed. It doesn't mean you lose. Your case is still there. It's just a hurdle that we have to overcome and move forward.

But that's a great question. Thank you.

What can injured workers do in this situation and do they have any recourse?

So if you're fired, if you feel that you were fired for filing your own claim or participating in somebody else's claim, you can file a workers' compensation discrimination action.

And you do that by contacting a local workers compensation board. You just go on their website and they'll give you the information. It's and you can search by the areas of where you live, geographic areas, and call your local board. They'll help you out. They have people on staff that will help you with that.

Make sure you have evidence and proof, written proof. “Hey, Jim. We can't believe you filed your workers' compensation claim, even though we told you that we would pay for your hospital bill. We can't believe that. You're f-ing fired, Jim!” If you have an email like that, awesome! Keep it. Keep emails, keep evidence. It's good stuff because these are such difficult cases.

You can walk into court and say, “they fired me for filing workers' compensation. My boss told me he was firing me for filing for workers' compensation.” And then they’re going to look at your boss and say, “Did you say that?” And he’s going to say, “I fired you because you showed up late to work every day last week!” Well, you're probably not going to win that case It's a tough burden. So evidence, evidence, evidence.

If you are fired for other reasons, if you're fired, like we said before, gender discrimination, age discrimination, religious orientation, there are state and local government agencies, Department of Human Resources in New York City. There's a lot of different places where you can file a claim for discrimination. And I recommend that you do that.

What are my recommendations as a workers compensation lawyer?

My number one recommendation, and this is not me being too salesmeney, but my number one recommendation is get a lawyer. And it's not because we need a business, get a lawyer. If you have a relatively—I don't want to say simple and I won't say easy, because anybody who's dealing with a work accident is going through a lot—but if you have a case that doesn't have a lot of issues, having a lawyer behind you at all times is only going to be helpful to you. It doesn't cost you anything.

It doesn't cost you anything. The only time a lawyer in a workers' compensation case here in New York gets paid is if they get you money. If you're getting the money that you're already entitled to, and they don't have to do anything to get you that money, they're not going to get paid for it.

And if you retain them ahead of time, God forbid a problem pops up, they're right there waiting. They’re a phone call away. And it's a lot easier than if you don't have a lawyer and a problem pops up. Well, now you got to go scramble to find a lawyer, they’ve got to submit a retainer, it's going to take a couple of weeks for them to get access to your case, and that problem's only going to fester. You have backup waiting for you when you hire an attorney ahead of time and you have a staff attorney on call at all times. And it's really just the smart thing to do.

Make sure you consult with a lawyer, make sure you have a good doctor for your injury and your disability, somebody who knows the workers' compensation system because medical evidence is the driving force in a workers' compensation case. I tell people it's the gas that goes in the car. You can have the most beautiful Rolls-Royce, but if you have no gas in the tank, you don't get anywhere.

I tell them it's the bullets in the gun. You can't fire gun if you have no bullets. The medical reports are the bullets. We need good medical to drive the case forward. We need proof that you that your injuries are work related. And we need to know the severity of your injuries to move your case forward.

Okay. Does anybody have any questions? I have one question here: Is there a time limit to file a claim? Generally speaking, New York State has a two year statute of limitations on workers compensation claims on a basic accident claim. So if you get hurt on the job, you have two years from the date of accident to file your claim.

If you have a repetitive stress type claim, if you use this too much and your wrists start to hurt and you develop carpal tunnel syndrome, you have two years from the date that you first knew or should have known that your injuries are work related. That's a little bit hazy. Sometimes it's a little tough to figure out. You need a good lawyer there because you don't want to be time barred in filing a claim, especially for repetitive stress type claim.

But if you have any accident, any injury, any disability that's work related, make sure you're medically stable. Go speak to a lawyer, find out what your rights are, find out what you're entitled to. Find out what you could do to help yourself and your family and find that also what you might think is the truth. And you know, it's good to know what the truth is. Don't be misled. It's a smart move. It's a free consultation for me and for any of the great New York workers compensation attorneys out there. We're all here to help.

And I think that's it on the questions. So, folks, if anybody has any other questions at any point in time, please feel free to call my office 212-406-8989. We're here to help. Consultations are free. You can also subscribe to our YouTube channel. We have many videos posted now about all different sorts of workers compensation issues. People ask me questions all the time, and

I like turning them into videos because I want to address the questions that are being asked. I want to answer your questions. We have a lot more videos to come. I may be doing some more lives in the future, but again, anybody with any questions, any issues, please feel free to call me 212-406-8989. Thanks, everybody. Have a great one!

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