Defending New York Workers’ Compensation Discrimination Cases

Under New Yorker’s Workers’ Compensation Law § 120, an employer may not fire or otherwise discriminate against an employee who has claimed or attempted to claim workers’ compensation benefits.  If there is an allegation that an employer discriminated against an employee because he/she has attempted to claim compensation benefits, they must file two copies of a Discharge or Discrimination Complaint (Form DC-120 ) with the Workers’ Compensation Discrimination Unit. Any complaint alleging an unlawful discriminatory practice must be filed within two years of the commission of such practice.

The Discrimination Unit will notify the employer of the Complaint by issuing a “Notice to Employer and Request for Information Regarding Discharge or Discrimination Complaint” (Form DC-130). The DC-130 Form must be completed by the employer and returned to the Discrimination Unity within 30 days of receipt.  A trial will ultimately be scheduled by the Board to address the Discrimination action.

Workers’ Compensation Law §120 specifies that discrimination may only be found where “no other valid reason is shown to exist for such action by the employer.” The employee has the burden of proving that the employer unlawfully discharged/discriminated against the employee for pursuing a Workers’ Compensation action. The Board can only make a finding of discrimination if it is proven that the employer had taken some deleterious action against the employee because the employee filed a Workers’ Compensation claim. If the employer is able to provide any other valid reason for terminating employment, the Board cannot make a finding of discrimination.  In the past, the Board has determined that valid reasons for terminating the employee’s employment included the need to hire replacement workers’ to fulfill business needs, lengthy absences from work and termination due to prior disciplinary actions.

If the employee ultimately prevails in the discrimination action, any penalties or lost wages will be assessed against the employer, not the carrier.  The law judge will order the employer to restore the employee’s employment. Additionally, the law judge has the authority to mandate a penalty of at least $100.00 but no more than $500.00 against the employer. The penalty is not paid to the employee, but instead to the state treasury. Additionally, the employer will be liable for any lost time arising from the discrimination.

Usda Hussain is an associate attorney at Lois LLC where she defends employers and carriers in New York workers’ compensation claims. Usra can be reached directly at uhussain@lois-llc.com or 201-880-7213.