When starting a new job, benefits may not be available immediately. Health insurance may take months, retirement benefits may take years to vest, and unemployment may not be accessible right away. But what about workers’ compensation? When does an employee become eligible for support if they’re injured on the job, and who even qualifies as an “employee”?
Who Qualifies for Workers’ Compensation?
New York Workers’ Compensation Law §2 defines “employee,” but the full definition is over 3,000 words long. While that might sound intimidating, eligibility for workers’ compensation is actually quite broad.
Essentially, anyone working for pay is an employee from the first moment they work to the last. Virtually all employees are eligible for workers’ compensation. This includes part-time, per-diem, and temporary workers. Temporary employees may be considered employees of either a temporary employment agency or the business where they are placed, depending on multiple factors, but either way, they are entitled to the same benefits.
Workers’ Compensation for Contractors
Employers sometimes try to classify (or mis-classify) employees as “contractors” to avoid paying workers’ compensation and other costs. However, New York law says that whether a person is eligible for workers’ compensation benefits is not based on an employer’s paperwork designation of their relationship. In workers’ compensation, there is no such thing as a “1099 employee.” If an employer controls the schedule, duties, and routine of a person performing work on their behalf, that person is likely an employee and eligible for workers’ compensation benefits.
Workers’ Compensation for Trainees and Tryouts
Modern employers require more and more training and “tryouts” from potential employees. If these “trainees” or even “interviewees” are injured, they may be eligible for workers’ compensation. These situations occur during the time an applicant is likely to be offered a position, so long as they complete particular tasks or tests. The New York State Workers’ Compensation Board says whether a person injured while undergoing a “tryout” for a job is eligible for benefits rests on two main factors:
- Employer benefit: Did the task provide a benefit to the employer?
- Control and risk: Was the worker put in harm’s way under the employer’s control?
Two similar situations illustrate how these factors are applied:
- A person interviews to be a bartender for a restaurant. The restaurant owner says, “We like you, but we want to make sure you can mix our drinks before we can offer you a job.” Since the restaurant is open, the owner and interviewee go behind the bar, and the interviewee starts taking orders from customers and mixing drinks. On the fourth order, a bottle slips and severely cuts the interviewee’s arm.
- At the close of an interview for a bartender position, the restaurant owner says, “We want all of our bartenders to be trained by ABC Bartending School. It’s a one-day class we pay for. Once you complete that class, you can start working for us.” The interviewee signs up for the class, which is held off-site from the restaurant. The interviewee slips on a wet floor during the class and sprains their knee.
In these two examples, the person in the first case is likely to be an “employee” and eligible for workers’ compensation benefits. The person in the second case is not. This is because the first person was performing a task that provided benefits to the employer (serving drinks to customers), and the broken bottle was the employer’s property. The second person was doing similar tasks, but the employer could not benefit from them. The injury was caused by a wet floor at the center owned by the training company, not the employer.
If a person is injured in a role they believe makes them an “employee,” they should notify the employer in writing immediately, and file a C-3 “Employee Claim” form with the New York State Workers’ Compensation Board.
When to Contact a Workers’ Compensation Attorney
Should a person injured as a part-time, temporary, per-diem, or contract worker, or a person injured while in a “tryout” for a job, hire an attorney? If the employer or their insurance carrier questions the employer-employee relationship, the Board will schedule hearings to resolve the issue. Testimony will be taken, and no payments for lost time from work or medical bills will be made until the issue is resolved. The employer and insurance carrier will be represented by attorneys working on their behalf. In those cases, the injured worker should strongly consider hiring an attorney to fight for their rights.
The attorneys at Lewis & Lewis, P.C., have represented injured workers for decades. We are frequently faced with cases in which we need to prove our client is an “employee” to be eligible for workers’ compensation benefits. We never charge a fee for our services unless we win money on your behalf. Contact our offices today to schedule an appointment.
