One of the most common questions injured workers ask is whether they qualify for workers’ compensation. In New York, the answer is broader than most people expect. The system covers the vast majority of employees in the state, and it covers them from their first day on the job. There is no waiting period. There is no minimum number of hours. If you are employed and you are injured in the course of that employment, you are almost certainly eligible.
But “almost certainly” is not “always,” and the exceptions matter. Some workers are covered by separate federal systems. Some employers misclassify workers in ways that create eligibility disputes. And some injured workers never file a claim because they mistakenly believe their employment situation disqualifies them. This article explains who is covered, who is not, and where the disputes arise.
The general rule: nearly all employees are covered
New York law requires virtually all employers to provide workers’ compensation coverage for their employees. This applies to private employers, state and local government employers, and most nonprofit organizations. The size of the business does not matter. An employer with one employee has the same obligation as an employer with ten thousand. Coverage begins on the first day of employment, whether the worker is full-time, part-time, seasonal, or temporary.
Employers fulfill this obligation in one of three ways: by purchasing a workers’ compensation insurance policy from an authorized carrier, by obtaining approval from the Workers’ Compensation Board to self-insure, or by joining a group self-insurance plan with other employers. Regardless of which method the employer uses, the coverage available to the injured worker is the same.
An employer who fails to carry workers’ compensation insurance as required by law commits a criminal offense in New York. For corporations, failure to maintain coverage is a misdemeanor. For repeat offenses or extended periods without coverage, the penalties increase. More importantly for the injured worker, if your employer did not have coverage when you were injured, you still have options. You can file a claim through the Uninsured Employers Fund administered by the Workers’ Compensation Board, or you can sue your employer directly in civil court — an option that is otherwise barred by the exclusive remedy doctrine.
Undocumented workers and workers paid off the books
This is one of the most important eligibility rules in New York workers’ compensation, and one of the least understood. Undocumented workers are covered. Workers who are paid off the books are covered. Workers who do not have a Social Security number are covered. The law does not condition eligibility on immigration status or on how the employer chooses to handle payroll.
Many workers in these situations never file a claim because they are afraid — afraid their employer will retaliate, afraid they will attract attention from immigration authorities, afraid that because they were paid in cash there is no proof they were employed. These fears are understandable but they should not stop a worker from seeking the benefits they are entitled to under New York law.
New York’s workers’ compensation system exists to protect workers who are injured on the job. It does not ask how you got the job or how you were paid. It asks whether you were working for an employer when the injury occurred. If the answer is yes, you are covered.
The practical challenge for off-the-books workers is proving their wages. Workers’ compensation benefits are calculated based on your average weekly wage, and if you have no pay stubs, no W-2, and no tax returns reflecting the income, establishing that wage can be difficult. Bank deposit records, text messages discussing pay, testimony from co-workers, and any other documentation of the working relationship become important evidence. Keep whatever records you have.
The independent contractor question
Independent sub-contractors are not employees. They are self-employed, and they are not eligible for workers’ compensation through the company that hired them. That much is clear. What is far less clear is whether any particular worker is truly an independent contractor or has been misclassified.
Employers sometimes classify workers as independent contractors to avoid paying for workers’ compensation insurance, unemployment insurance, and payroll taxes. The worker receives a 1099 instead of a W-2. The employer calls them a contractor. But in New York, the label does not determine the relationship. The facts do.
The Workers’ Compensation Board looks at several factors when determining whether a worker is an employee or an independent contractor. The most important factor is the degree of control the employer exercises over how the work is performed. Does the employer set the schedule? Does the employer provide the tools, equipment, and materials? Does the employer determine the method of payment? Does the employer have the right to hire and fire? Does the employer supervise or direct the work? The more control the employer exercises, the more likely it is that the worker is an employee regardless of what the paperwork says.
Other factors the Board considers include whether the worker performs services exclusively for one company, whether the worker has their own business and serves multiple clients, whether the worker sets their own rates, and whether the worker provides their own liability insurance. No single factor is dispositive. The Board examines the totality of the relationship.
Do not assume that because you received a 1099, you have no claim. If you were injured on the job and you believe your employer exercised significant control over your work, the classification may be wrong. This is exactly the kind of dispute that benefits from legal evaluation.
Special rules in the construction industry
The construction industry in New York has long been a source of misclassification disputes. Workers on construction sites are frequently classified as independent contractors when they should be classified as employees. New York law addresses this directly. Under Workers’ Compensation Law Section 56, any person performing work in the construction industry is presumed to be an employee unless the hiring party can demonstrate that the worker meets specific criteria for independent contractor status.
This presumption shifts the burden of proof. In most industries, the injured worker has to argue that they should be classified as an employee. In construction, the employer has to prove the worker is not an employee. This is a meaningful legal distinction, particularly for day laborers, subcontractors without their own insurance, and workers hired through informal arrangements on job sites across New York City and Long Island.
Workers covered by federal systems instead of state workers’ compensation
Certain categories of workers are not covered by New York’s state workers’ compensation system because they are covered by separate federal programs. Federal government employees are covered under the Federal Employees’ Compensation Act, or FECA. Dockworkers, longshoremen, and harbor workers are covered under the Longshore and Harbor Workers’ Compensation Act. Merchant seamen are covered under the Jones Act and general maritime law. Interstate railroad workers are covered under the Federal Employers’ Liability Act, or FELA.
These federal programs have their own rules, their own filing requirements, and their own benefit structures. A longshoreman injured at a port facility on Long Island, for example, would file under the Longshore Act rather than through the New York Workers’ Compensation Board. The benefits, the process, and the deadlines are different.
New York City municipal employees
Teachers, police officers, firefighters, and sanitation workers employed by the City of New York are generally covered by other benefit plans rather than the state workers’ compensation system. These workers may have access to disability benefits through their union contracts, through the New York City Employees’ Retirement System, or through line-of-duty injury benefits specific to their agency.
The rules for these workers can be complex, and the deadlines for filing claims may differ from those in the general workers’ compensation system. If you are a municipal employee injured on the job, consult with an attorney who understands the specific benefit structures that apply to your position.
Other exceptions to mandatory coverage
Clergy and members of religious orders represent the primary exception to New York’s mandatory workers’ compensation coverage requirement. These individuals are not considered employees under the Workers’ Compensation Law unless their religious organization voluntarily elects to provide coverage.
Certain executive officers of closely held corporations may also elect to exclude themselves from coverage. And sole proprietors and partners are not automatically covered but may purchase coverage voluntarily.
Outside of these narrow exceptions, coverage in New York is mandatory and broad. If you performed work for an employer and were injured in connection with that work, the presumption is that you are covered.
What to do if your eligibility is disputed
Eligibility disputes are among the most consequential in workers’ compensation. If the insurance carrier or employer denies your claim on the grounds that you are not an employee, your medical bills will not be paid and your wage replacement benefits will not begin until the dispute is resolved.
The dispute will be heard by a Workers’ Compensation Law Judge. Evidence matters. Anything that documents the nature of the working relationship — text messages, emails, photographs of you at the work site, testimony from co-workers, pay records, equipment provided by the employer — can support your case. Do not discard anything related to the job.
If your employer tells you that you are not covered, do not take that at face value. File your C-3 Employee’s Claim Form with the Workers’ Compensation Board. File it promptly. The Board will determine eligibility, not your employer. And if you believe your employer has misclassified your employment status, that determination may have implications beyond your workers’ compensation claim.
How Schwartzapfel Holbrook evaluates eligibility questions
At Schwartzapfel Holbrook, we evaluate every workers’ compensation case with close attention to the employment relationship. When eligibility is in question — whether because of an independent contractor classification, off-the-books employment, or an employer’s failure to carry insurance — we examine the facts of the working relationship, gather evidence of employer control, and prepare to present that evidence at a hearing before a Workers’ Compensation Law Judge.
We handle cases involving construction site injuries where misclassification is common, cases where workers were paid in cash without documentation, and cases where employers have denied coverage outright. If the facts support the claim, the absence of a W-2 or the presence of a 1099 does not end the analysis.
Schwartzapfel Holbrook / Fighting For You