Discrimination Claims under the Workers’ Compensation Law

New York State is an employment at will state. This means that an employer can fire a worker at any time, as long as they do not violate any laws. If a worker is a union member, than the employer must also comply with the collective bargaining agreement’s provisions for employee discipline and termination.  

In 1973, New York State enacted Section 120 of the Workers’ Compensation Law. This law was created to allow injured workers the right to pursue their claims for Workers’ Compensation benefits without fear that doing so would result in employer retaliation. 

Section 120 essentially states that an employer cannot discharge or fail to reinstate, or in any other manner discriminate against an employee as to his or her employment because the employee has claimed or attempted to claim workers’ compensation benefits, requested a claim form for injuries received on the job, or has testified or is about to testify in a workers’ compensation claim. 

An employee has two years to file a discrimination claim from the date of the alleged discrimination. This is done by filing a DC-120 claim form with the Workers’ Compensation Board. Following receipt of a completed DC-120 form, the Compensation Board schedules a hearing with the worker, the employer and their attorneys, if any.  Unlike a workers’ compensation hearing, where the employer’s insurance carrier appears and pays the worker any awarded benefits, in a discrimination claim, the employer or their representative personally appear at the hearings and pay any benefits awarded to the employee. 

At the discrimination hearing, the Judge will request that both sides submit any evidence they have. In these cases, text screenshots between an employee and their employer, instant messages, e-mails, letters and attendance records are vitally important. As such, a worker should save everything they have in connection with the alleged discrimination since an employer will not typically admit they acted improperly. Following that direction, the Judge will then schedule the testimony of the worker, the employer and any witnesses. Once testimony is completed, the Judge will issue his/her decision. 

If an employer is found to be in violation of Section 120, the Compensation Board will then seek to determine what the worker has lost as a result of the discrimination. This may include but is not limited to restoral of the employee’s job and any lost wages. Essentially, the worker is to be restored to the same status they would have held but for the discrimination.  The employer is responsible for paying the worker’s attorney fees. There are also financial penalties the Board may impose against the employer.  

In the years since the law was enacted, it has been amended to indicate that discrimination may only be found by the Board where there is no other valid reason for the employer’s action. A review of some court cases is helpful to understand how the law has been interpreted.  

In one case, a worker at a hotel was injured. His employer warned him he would be fired if he were seen injured or went to a doctor. The following day, the worker treated at a doctor and when the employer learned of this, the worker was fired. The Board and the Court agreed this was discrimination under the law. 

In another case, a worker was fired without explanation shortly after returning to work from surgery to repair a work-related hernia. When he returned to work, he was assigned to a filthy desk, was shunned by his supervisors and was denied differential pay. The Board and the Courts agreed this was discrimination.  

In the next case, a machine operator injured at work was placed on restricted duty that limited his ability to operate his machine. Claimant was then fired. The Board and Court agreed there was no discrimination because the employer had a valid business reason for firing the worker, namely, the worker could not perform an essential part of his job.  

Finally, where a worker was fired shortly after filing a workers compensation claim, the Board and Court held that alone was insufficient to show the termination was in retaliation for filing a workers’ compensation claim. The employer’s position was supported by the fact the prior to the accident, they had spoken to the employee’s union about replacing the worker. 

As can be seen, this is a complex area of the law and no two cases are alike. If you suspect discrimination has occurred, it is important to speak with an experienced lawyer. 


Written by David Stauber, Esq.