PRACTICE AREAS

UNINSURED EMPLOYERS

Peter M. Cordovano, P.C. has a significant track record of mitigating or eliminating compensation due, and the civil and criminal penalties to which an uninsured employer is exposed.

FAQ: “Can I sue my employer instead of filing a Workers Compensation claim?” If your employer is insured, the answer is “NO”. If an employer is uninsured, the answer is "YES”.

Most employers are required by law to provide Workers Compensation insurance for the benefit of their employees. In exchange for providing that insurance, employers are protected from being sued.

When an employer is uninsured, an injured employee may file a Workers Compensation claim and may also commence litigation against the employer seeking money damages (WCL §50). However, the employee may recover under only one of these remedies under the theory of Election of Remedies.

If a civil action is commenced, the employee must plead and prove the employer's negligence, and that the employer "failed to secure payment of compensation benefits". The employer may not plead the defenses of assumption of risk, nor contributory negligence (WCL §11) (see Personal Injury Section).

Uninsured Employers Fund

If you are hurt and your employer does not have Workers Compensation in effect and you file a Workers Compensation claim, your employer will be liable for the actual cost of medical care and compensation payments to you.

The NYS Workers Compensation Board's Bureau of Compliance oversees uninsured claims. The Uninsured Employers Fund (UEF) is the funding mechanism for compensation and medical payments to injured employees whose employer was not properly insured at the time of the accident. These claims are processed by UEF, which collect all evidence, prepare the claim for hearings and administer the payment of all compensation and medical benefits. The Bureau also has a team of lawyers to represent the UEF at Workers Compensation Board hearings.

The law requires employers operating in NYS to have Workers Compensation coverage for their employees, with limited exceptions. Employers are required to obtain and keep in effect Workers Compensation coverage for all employees, even part-time employees and family members that are employed by the company.

Accountability

The sole proprietor, partners or the president, secretary and treasurer of a corporation are personally liable for a business' failure to secure Workers Compensation insurance.

If a corporation has failed to secure Workers Compensation coverage, the president, secretary and treasurer of a corporation are personally liable for such medical care, compensation payments, penalties and possible criminal prosecution.

Liability for Claims Incurred by an Uninsured Employer

WCL §26-a states that an employer is liable for a penalty of $2,000 per 10-day period of noncompliance, plus the actual award (including both compensation and medical costs), plus any other penalties the Board assesses for noncompliance. In cases involving severely injured employees, the medical costs alone could be in the hundreds of thousands of dollars per injury.

Additional Liability

An uninsured employer is responsible for obtaining and paying for any legal representation required in defending a Workers Compensation claim. (An insured employer's Workers Compensation insurance carrier provides such representation as part of the Workers Compensation insurance policy's coverage).
An uninsured employer can be directly sued by an injured employee (WCL §11). (In most cases, an employer's Workers Compensation insurance is the sole recourse for the employer's injured employees.)
An uninsured employer is responsible for all wage and medical benefits awarded to anyone ruled to be their employee. There is no cap on these benefits in New York.
WCL §52 [1] (a) makes failure to secure the payment of compensation for 5 or less employees within a 12 month period a misdemeanor (a crime), punishable by a fine of not less than $1,000 or more than $5,000.

If you are an uninsured employer facing litigation or penalties, call Peter M. Cordovano, P.C.

If you have questions, or need an experienced and dedicated attorney, call Peter M. Cordovano, P.C. today for an appointment at 845-691-4200. Your case will be handled immediately, personally, confidentially and professionally.

This site and the information contained herein are not intended to be, nor should same be construed as a substitute for legal advice. For any particular issue or concern, please consult with an attorney.