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).

According to an article published yesterday in The Wall Street Journal, "an average of 497 workplace homicides occurred annually between 2003 and 2008, most (86%) within the private sector. Still, workplace homicides are rare, accounting for just 8% of total fatal work injuries in 2008, the federal agency reports."

The article, "When Violence Strikes the Workplace," also included a list of recommendations that all companies should follow. As a New York City employment attorney who is frequently asked about workplace violence, I felt compelled and obligated to reprint these important and relevant tips.

Taken directly from the article, they are as follows:

· Establish and strictly enforce a zero-tolerance policy for violent behavior or threats, including seemingly empty threats.

· Create an emergency-action plan, as is required by federal law for employers of all sizes. An employer with 10 or fewer employees may communicate the plan orally to employees, while larger firms must put it in writing.

· Keep a written record of any disciplinary action and have the employee sign it.

· Devise a termination strategy that doesn't discriminate; follow the same protocol when firing both executives and laborers.

· Conduct dismissals in a private setting and enlist a senior company leader to serve as a witness.

· Upon terminating an employee, immediately disable his or her access to the company's computer systems and confiscate keys.

· If the demeanor or behavior of a person being dismissed is questionable, consider calling law enforcement for support.