Workers’ Compensation Retaliation: Legal Remedies in New York and New Jersey

Last updated May 30, 2018.

Article at a Glance

  • When an employer refuses a workers’ compensation referral after an injury, that worker will file a formal claim for benefits with the help of an attorney. Sometimes, however, an employer may try to retaliate against a worker for filing a workers’ compensation claim in New Jersey.
  • In New Jersey, workers can sue for workers’ comp retaliation claims. In New York, workers are a bit more limited in what they can do — but they can file an administrative complaint with the state workers’ compensation board. New York workers are at a disadvantage for being unable to sue in a court of law after an employee retaliates because of a workers’ compensation claim.

Both New York and New Jersey workers who suffer a workplace injury or contract an illness as a result of work are entitled to workers’ compensation through their employers. As a practical matter, this typically means that a worker reports his or her workplace injury/illness to the employer within a prescribed time period (usually within 90 days of the injury/illness). The employer then notifies its legally-required workers’ compensation insurance carrier. Through this carrier, the employee receives any necessary and reasonable medical care and temporary disability benefits stemming from the injury/illness.

While the system sounds straightforward enough, unfortunately complications can and do arise. Sometimes employers refuse to refer an employee’s injury to workers’ compensation, arguing, for example, that the injury in question was not work-related or that the medical treatment or temporary disability pay the employee seeks from the carrier is unwarranted.

In these instances, both New York and New Jersey employees are entitled to contact a workers’ compensation attorney, who may file a formal claim petition/motion for benefits on the employee’s behalf with the state workers’ compensation division. The division will then assign the claim to a workers’ compensation judge to decide in a specialized administrative court.

See also: FMLA Denied Wrongfully? 3 Mistakes to Avoid

Retaliation for Filing a Workers’ Compensation Claim

Yet another wrinkle can occur with respect to workers’ compensation claims: the employer can retaliate against the injured/ill worker. Such retaliation can take the form of bogus disciplines and write-ups, slashed hours, a detrimental transfer or change in shift, or any other action that adversely impacts the worker, up to and including termination.

Moreover, an employer can retaliate against a worker for filing a formal petition with the state workers’ compensation division, or for the simple act of reporting his or her injury to the employer and receiving legally-entitled workers’ compensation benefits. In fact, in our legal practice, the latter scenario is the more common.

So what recourse do workers have against workers’ comp retaliation? The answer varies slightly depending upon the state.

Recourse for Workers’ Comp Retaliation in New Jersey

The New Jersey Workers’ Compensation Statute prohibits employers from discharging or discriminating in any manner against an employee because the employee has claimed or attempted to claim workers’ compensation benefits. N.J.S.A. 34:15-39.1. This is a broad remedial measure, allowing NJ workers to sue their employers in a court of law for retaliating against them for filing a formal claim with the workers’ compensation division, or for simply reporting their workplace injury to the employer and receiving or attempting to receive related workers’ comp benefits.

Recourse for Workers’ Comp Retaliation in New York

In contrast, New York workers have more limited recourse. Similar to the NJ statute, the NY Workers’ Compensation Law prohibits an employer from terminating or in any other manner discriminating against an employee because the employee has claimed or attempted to claim workers’ comp benefits. N.Y. Workers’ Comp. Law § 120. However, the NY law does not allow workers to file a separate cause of action for retaliation in a court of law. Instead, NY workers may only file an administrative complaint of retaliation with the NY State Workers’ Compensation Board. The Board will then investigate and adjudicate the claim.

If the Board finds retaliation, the NY law gives the Board authority to reinstate the worker and issue back pay, among other remedial measures. However, as a purely practical matter, I believe that NY workers are at a strategic disadvantage in not being able to sue for workers’ compensation retaliation in a court of law. A lawsuit filed in civil court carries many benefits, including more stringent discovery requirements (meaning it is harder for the employer to hide evidence) and the threat of a jury trial — a prospect most employers wish to avoid and thus powerful leverage for the employee.

See also: Are Discrimination Lawsuits Taxable?

Workers’ Comp Retaliation Settlements: Get Help Today

The above is a very general discussion of workers’ compensation retaliation in New York or New Jersey. If you believe you’ve been retaliated against for making or attempting to make a workers’ comp claim, call our offices or contact us online today so that we may discuss the finer points of your situation in more detail.

2 Responses to “Workers’ Compensation Retaliation: Legal Remedies in New York and New Jersey”

  1. Derek Mcdoogle

    In your article, you stated that while the system sounds straightforward enough, unfortunately, complications can and do arise and sometimes employers refuse to refer an employee’s injury to workers’ compensation. My cousin called me from the hospital today because he was having surgery on his hip after a machine fell on him at work. I wonder what types of paperwork would be needed in a case like this.

    Reply
  2. Allan

    Just a question. Found my tax form from my employer seemed short in reporting earnings. Have one question. I had a NYS compensation judge award me a loss of use award from an accident that happened at work in 2009. Could the under reporting of gross wages be a form of retaliation against me as an injured worker with the employer trying to recoup money from this award without due process? I suspect it but can not say for sure.

    Reply

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