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Can I Sue My Employer for Negligence?

a person pointing at another person accusing them of negligence

If you have been injured while working on the job, one of your primary questions would be, “can I sue my employer for negligence?” In New York, the general answer is, no, you cannot sue your employer for negligence if you are able to claim under the New York Workers’ Compensation Law (WCL).

What is the New York Workers’ Compensation Law?

The New York WCL allows injured workers to file claims with the employer’s insurance company, regardless of whether the employer was negligent or not. It is a no-fault system, so the injured worker can file a claim even if the employer was not negligent for as long as the worker was injured on the job.

This no-fault system allows the injured worker to immediately access funds to pay for medical costs and lost wages, which would not have been available if the injured worker had to go through litigation and file a personal injury or negligence lawsuit. Lawsuits would take a year or more, while claims under the New York WCL are released faster.

Limitations to New York Workers’ Compensation Law

On the downside, there are limits to workers’ compensation law. You cannot claim punitive damages. If the amount you received under workers’ compensation law is less than your actual damages, you do not have any other remedy because filing a claim under workers’ compensation law is an exclusive remedy against the employer. You cannot also file a case against your co-employees because of their negligent acts. Filing a claim under the WCL precludes you from filing a negligence lawsuit against your employer and co-worker.

There are exceptions, however, which allow you to file a negligence lawsuit against your employer. You may also still pursue a third-party claim, in addition to a claim under the New York WCL.

Workers Compensation Law as an exclusive remedy

Claims filed by injured workers with the employer’s insurance company under the workers’ compensation law is an exclusive remedy. As an exclusive remedy, the injured worker, his representatives, agents, or assigns cannot recover damages from the employer or the employer’s other employees.

Exceptions to workers’ compensation law as an exclusive remedy against an employer

There are exceptions to workers’ compensation law where you can sue your employer for negligence:

  1. When the employer does not have workers’ compensation insurance coverage for the injured employee;
  2. When the employer intentionally harmed the employee;
  3. When you are not legally considered a company employee, such as independent contractors, real estate brokers, and commission-only salespeople;
  4. When the employee sustained a grave injury.

Grave injury is defined in WCL § 11 as:

  • Death
  • Permanent and total loss of use or amputation of an arm, leg, hand, or foot
  • Loss of multiple fingers
  • Loss of multiple toes
  • Paraplegia or quadriplegia
  • Total and permanent blindness
  • Total and permanent deafness
  • Loss of nose
  • Loss of ear
  • Permanent and several facial disfigurement
  • Loss of an index finger
  • Acquired injury to the brain caused by an external physical force resulting in permanent total disability

Third-party actions, in addition to WCL

If there is another negligent party, aside from your employer and co-employee, then you can claim damages under the New York WCL with your employer’s insurance company, and at the same time, file a negligence lawsuit against a third party (who is not your employer or co-employee), such as a manufacturer or any other person. In third-party actions, you can sue for pain and suffering, emotional distress, future loss of earning potential, and other out-of-pocket expenses not covered by workers’ compensation.


For example, you are a messenger, driving the company motorcycle. While performing work for your company, you got injured by a third-party motorist. You needed medical attention worth $20,000 and you were not able to work for 30 days. What are your options?

First, you can file a claim under New York WCL because you got injured while performing your job. With the WCL, you don’t have to prove the employer’s negligence to be entitled to the benefits because the New York WCL is a no-fault system.

Second, you may be entitled to no-fault benefits under New York’s Motor Vehicle no-fault law.

Third, you can file a claim against the third-party motorist for negligence and claim for other damages not covered by workers’ compensation, such as punitive damages, emotional distress, and pain and suffering.

What if a contributory reason for your injuries was your co-worker’s failure to check and replace the tires of your motorcycle? Can you file a negligence lawsuit against your co-worker? No, you cannot file a negligence lawsuit against your co-worker because your exclusive remedy against your employer and co-workers is to file a claim with your employer’s insurance company under the New York WCL.

What if, because of the accident, you were unable to walk again? Can you file a negligence lawsuit against your employer? In this case, you can file a negligence lawsuit against your employer because sustaining a grave injury is an exception to the exclusive remedy rule under the WCL. Since your inability to walk is analogous to the total loss of use of your legs or feet, your injury is a grave injury that allows you to file a negligence lawsuit against your employer (including your co-employee).

Filing under WCL and a third-party action

When you file both a claim under the WCL and an action against a negligent third party who is not your employer or co-employee, the law prohibits you from receiving excessive awards. For this reason, you are required to return 2/3 of your workers’ compensation benefits back to the insurer when you receive a personal injury settlement from the negligent third party.

Fortunately, you can circumvent the provision of returning the 2/3 amount back to the insurer by agreeing to a Section 32 global settlement, which allows the injured worker to settle both cases (the negligence lawsuit against the third party and the claim under WCL) with one agreement. As part of the settlement, the insurance company will waive the 2/3 compensation it should receive from the personal injury award.

Can an independent contractor file a claim under WCL?

Independent contractors are not considered employees of the employer, and, thus, are not covered by the New York Workers’ Comp. However, there are instances when an employer would deliberately misclassify a person as an independent contractor in order not to provide the independent contractor with benefits (which includes WCL insurance coverage), but for all intents and purposes, the independent contractor performs the work of an employee.

The law provides for several criteria to determine whether a person is an employee or an independent contractor:

  • The character of the work. If the character of the independent contractor’s work is the type of work that is essential to the primary business of the employer, the independent contractor may be considered an employee.
  • Right to control. If the employer retains the right to control the independent contractor’s way of working, such as requiring the worker to time in and time out of the office, the independent contractor may be considered an employee.
  • Method of payment. If the independent contractor is paid hourly, daily, weekly, or monthly, this can be considered a factor in identifying the independent contractor as an employee. Independent contractors are usually paid per result for a particular job done.
  • Furnishing equipment or materials. If the independent contractor does not provide his own materials and is instead furnished company equipment to perform the job, the independent contractor may be considered an employee.
  • Right to hire and fire. If the independent contractor is subject to the hiring and firing of the employer and not to its contract’s termination provisions, the independent contractor may be considered an employee.

Above are factors that the court will use to determine whether an independent contractor is an employee that should be covered by WCL. One factor will not alone determine the status of a person. Instead, a totality of the factors will be considered.

If the independent contractor is considered an employee based on the above factors, then the employer should purchase workers’ compensation insurance for the worker.

Appeal process

Filing a claim with the insurance company

The first step in receiving benefits from the workers’ compensation insurance is filing your claim with your employer’s workers’ compensation insurance carrier. The insurance company may deny your claim for a number of reasons:

  • Injuries were not caused by work activities;
  • Injuries were not sustained during work hours;
  • Injuries were sustained before you began working;
  • You are an independent contractor and not an employee;
  • The injuries were not reported immediately;
  • The injuries were not witnessed by any other co-worker;
  • Your medical records do not align with the accident report;
  • Your medical records indicate the presence of illegal drugs in your system.

If the insurance company denies your claim, they will file a “notice of controversy” with the Workers’ Compensation Board. This notice should be filed within 18 days from the beginning of your disability or 10 days after being made aware of the work-related accident, whichever is longer. Your claim will then be referred to the Workers’ Compensation Law judge at the Workers’ Compensation Board.

Appealing the insurance company’s denial to the workers’ compensation law judge

The judge will hold hearings and will receive testimony and other medical and documentary evidence. The judge will make a decision on whether you are entitled to workers’ compensation benefits and how much this benefit would be. If the judge affirms the insurance company’s denial, you can still appeal this decision with the workers’ compensation board.

Appeal to the workers’ compensation board

If the workers’ compensation law judge affirms the insurance company’s denial of your claim, you have 30 days to appeal this ruling to the workers’ compensation board. The workers’ compensation board is composed of a panel of three members who will either affirm the judge’s decision, modify the judge’s decision, reverse the judge’s decision, or remand the case back to the judge to consider further evidence.

Appeal with the Appellate Division of the Supreme Court

If your claim is still denied by the board, you may appeal this decision with the Appellate Division of the Supreme Court within 30 days from receipt of the board’s decision.

Returning to work after an injury

After you have recovered from your injury and your doctor gives you clearance to go back to work, you can return back to your place of work. You may or may not have your old job. You may be reassigned to a different department. Or you could be terminated from your position.

If you feel that your disability was the reason for your termination, you may have a claim for disability discrimination. More on disability discrimination here.

When you have been injured in the workplace, your first instinct might be to file a lawsuit for negligence against your employer. It is important for you to seek the advice of a workers’ compensation law and personal injury attorney immediately to know your legal options. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.