New York Employment Lawyer Blog

While federal government employees are not covered under the New York Workers' Compensation Law, they are covered under the Federal Employees' Compensation Act ("FECA"). FECA provides that "[t]he United States shall pay compensation ... for the disability or death of [a federal] employee resulting from personal injury sustained while in the performance of his duty ...." See Mathirampuzha v. Potter, 548 F.3d 70 (2nd Cir. 2008).

In enacting this provision, Congress adopted the principal compromise-the "quid pro quo"-commonly found in workers' compensation legislation: employees are guaranteed the right to receive immediate, fixed benefits, regardless of fault and without need for litigation, but in return they lose the right to sue the Government. Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94, 103 S.Ct. 1033, 74 L.Ed.2d 911 (1983).

In New York, an employee may not sue his or her employer for physical injuries caused by the acts of a co-worker.

This is because New York's Workers' Compensation Law provides the exclusive remedy for an employee who seeks damages for unintentional injuries which he or she incurs in the course of employment. This exclusive remedy of workers' compensation precludes an employee's claims against his or her employer for negligent hiring, training, supervision and retention of another employee who assaults and injures that employee.

The only exception would be where the assault was perpetrated at the employer's direction. However, even in those cases, the complaint must allege an intentional or deliberate act by the employer directed at causing harm to this particular employee. In order to constitute an intentional tort, the conduct must be engaged in with the desire to bring about the consequences of the act; a mere knowledge and appreciation of a risk is not the same as the intent to cause injury.

See, Pereira v. St. Joseph's Cemetery, 864 N.Y.S.2d 491 (2nd Dept. 2008); Martinez v. Canteen Vending Services Roux Fine Dining Chartwheel, 795 N.Y.S.2d 16 (1st Dept. 2005).

Under the Occupational Safety and Health Act of 1970 ("OSH Act"), employers are responsible for providing safe and healthy workplaces for their employees. Section 11(c) of the OSH Act, which is enforced by the Occupational Safety and Health Administration ("OSHA"), prohibits retaliation against employees for filing a health or safety complaint or for exercising a wide range of other rights afforded to them by the OSH Act. Basically, it protects an employee's right to file a complaint with OSHA or to bring health and safety issues to the attention of his or her employer without fear of termination or other retaliation.

On October 14, 2010, OSHA announced that it obtained a consent judgment ordering The John Galt Corp. and two of its former managers to compensate a worker who was fired for raising a health and safety issue during an asbestos removal project that the company oversaw in New York City.

In this case, the worker alleged that he had been fired after requesting additional respirator cartridges for himself and for fellow workers performing asbestos removal at the site. OSHA brought a legal action, and as a result, the defendants signed a consent judgment that orders them to pay the worker $55,000 in back wages and expunge all references to suspension or dismissal from his personnel file. The judgment also prohibits the defendants from discriminating against employees who file a complaint with OSHA, participate in an OSHA inspection or otherwise exercise their rights under Section 11(c) of the OSH Act.

On October 20, 2010, OSHA announced that it filed a lawsuit against Promesa Systems Inc., a New York City nonprofit organization providing care to individuals with developmental disabilities, for allegedly firing an employee who voiced workplace safety and health concerns and filed a complaint with OSHA. A few days after the employee advised the defendants that she would consult OSHA regarding an assignment that they had given her, the defendants suspended her during an internal investigation which included a review of her on-the-job performance. At the end of the company's investigation, the employee was fired. OSHA found evidence that the internal probe was used as a pretext to terminate the employee for her whistleblower actions.

The complaint seeks a judgment ordering all appropriate relief for the worker, including reinstatement, back pay with interest and compensatory damages, as well as prohibiting the defendants from future violations and having them post and comply with a workplace notice that they will not discriminate against employees who engage in protected safety and health activities.

It is always smart for employers to consult with a New York City employment attorney before terminating or disciplining an employee who has recently complained.

On July 7, 2010, the Occupational Safety and Health Administration (OSHA) announced the launching of a new website that provides information for employees who complain about health and safety violations in the workplace.

Under the Occupational Safety and Health Act (OSH Act), employees may file complaints with OSHA if they believe their employer has retaliated against them for raising their rights pursuant to the OSH Act. These rights include filing health or safety complaints with OSHA, seeking an OSHA inspection, participating in an OSHA inspection, participating or testifying in any proceeding related to safety or health, or reporting an injury or illness to their employer.

OSHA also enforces the whistleblowing provisions of eighteen other statutes, protecting employees who report violations related to air carrier safety, commercial motor carriers, asbestos in school, consumer products, environmental safety, corporate fraud, health care reform, nuclear energy, pipeline safety, public transportation, railroad safety, and securities laws.

A person filing a complaint of retaliation with OSHA will be required to show that he or she engaged in a protected activity, the employer knew about that activity, the employer subjected him or her to an adverse employment action, the protected activity contributed to the adverse employment action, and the adverse employment action occurred within the last 30 days (some deadlines differ depending upon the statute alleged to have been violated).

An adverse employment action is generally defined as any action that would dissuade a reasonable employee from engaging in the protected activity. According to the site, examples include:

• Firing or laying off
• Blacklisting
• Demoting
• Denying overtime or promotion
• Disciplining
• Denial of benefits
• Failure to hire or rehire
• Intimidation
• Reassignment affecting prospects for promotion
• Reducing pay or hours

Now that OSHA is making an active effort to encourage employees to complain to them about health and safety violations and unlawful retaliation, it's more important than ever for employers to make sure there are comprehensive complaint procedures in place so that disputes get resolved internally before their employees decide to file with OSHA.