Construction is one of the most dangerous trades in New York. On Staten Island, that means roofers and framers on South Shore houses, laborers and operators on road and sewer jobs, and union carpenters, ironworkers and electricians who ride the bridge every morning to job sites in Manhattan, Brooklyn and New Jersey. When a construction worker gets hurt, there are often two separate claims in play, and how the first one is handled affects the second.
The short answer
- Workers’ comp covers you whether you are union or non-union, full-time or a day laborer, paid on the books or in cash, and regardless of immigration status.
- Comp is no-fault. You do not have to prove anyone did anything wrong to get medical treatment and lost wage benefits.
- If your employer has no insurance, the general contractor on the job can be responsible for your comp benefits.
- A fall, a falling object or an unsafe site may also give you a separate lawsuit against the owner or general contractor under New York’s Labor Law. That case runs alongside your comp claim.
Who your employer is on a construction site
A job site can have an owner, a general contractor, a construction manager and a dozen subcontractors. For workers’ comp, your employer is the company that hired you and pays you, usually the name on your pay stub. That company’s comp insurance carrier pays your claim.
Things get more complicated when a labor broker or staffing company sends you to a site, or when one contractor lends you to another for the day. Both companies may be treated as your employer. See general and special employers for how that works.
“They said I was a 1099 contractor”
Misclassification is common in construction. Being paid on a 1099 does not decide whether you are covered. New York’s Construction Industry Fair Play Act presumes that a person doing construction work for a contractor is an employee, and it is up to the contractor to prove otherwise under a strict test. In practice, most workers labeled “independent contractors” on construction jobs are employees for workers’ comp purposes. More on this in 1099 workers and workers’ comp.
When the subcontractor has no insurance
Small subcontractors sometimes let their coverage lapse or never buy it. Under Section 56 of the Workers’ Compensation Law, a general contractor that hires an uninsured subcontractor becomes responsible for comp benefits to that subcontractor’s injured workers. If no one up the chain has coverage, the Uninsured Employers Fund can pay the claim. Either way, you are not left without benefits. See what happens when your employer has no workers’ comp insurance.
Paid in cash, or working more than one job
Your weekly benefit is based on your average weekly wage. If you were paid in cash, the carrier will often use a low number. Text messages, bank deposits, a foreman’s testimony and your own records can all prove what you really earned. Overtime counts, and if you had a second job, those wages can count too.
Common construction injuries
- Falls from ladders, scaffolds, roofs and floor openings
- Being struck by falling materials, tools or equipment
- Back, neck, shoulder and knee injuries from lifting and repetitive work
- Hand injuries and amputations from saws and power tools
- Hearing loss from years around jackhammers and heavy equipment
- Occupational diseases from silica dust, asbestos and other exposures
Occupational conditions develop over time, but they are still covered. The deadlines run from when you knew or should have known the condition was related to your work.
Workers’ comp and a Labor Law lawsuit
Workers’ comp is generally your only remedy against your own employer. But on a construction site, the property owner and the general contractor are not your employer, and New York’s Labor Law puts strict safety duties on them. Section 240, often called the Scaffold Law, covers falls from height and falling objects. Section 241(6) covers violations of the state’s construction safety rules. A worker hurt in one of these accidents may be able to sue the owner or general contractor in addition to collecting comp.
That lawsuit is a personal injury case, separate from your comp claim. Call us first: we will handle your workers’ comp claim, and if you have a Labor Law case too, we will put you in touch with a lawyer who handles those cases and coordinate the two. You can read more on our Labor Law page. The two cases have to be coordinated. The comp carrier has a lien on any recovery for what it paid, and if the lawsuit settles without the carrier’s written consent, you can lose your right to future comp benefits. See third-party cases and the comp lien.
Union members
Your union may have its own injury report, benefit funds and a list of lawyers it recommends. None of that replaces a workers’ comp claim, and you are free to choose your own comp attorney. See the union sent me to a lawyer. Do I have to use them?
What to do after a construction injury
- Report it to your foreman or employer in writing within 30 days. Tell the general contractor’s site safety manager as well.
- Get the names of your employer, the general contractor and the site address. Take photos of where it happened if you can.
- See a doctor and tell them it happened at work.
- File a C-3 with the Workers’ Compensation Board. You have two years, but filing early gets benefits moving sooner.
- Don’t sign a release or talk settlement with anyone’s insurance company before you get advice.
If you were hurt on a job in New Jersey or another state, you may still be able to claim New York benefits. See injured at work outside Staten Island.
Frequently asked questions
I’m undocumented. Can I get workers’ comp after a construction injury?
Yes. New York workers’ comp covers injured workers regardless of immigration status, and the Board does not ask about it. See undocumented workers.
Can I sue my employer for a construction accident?
Usually not. Workers’ comp is generally the only remedy against your own employer. You may be able to sue the property owner, the general contractor or another company on the site under the Labor Law.
The contractor paid me in cash and says I wasn’t an employee. Am I covered?
Very likely. Under New York’s Construction Industry Fair Play Act, construction workers are presumed to be employees. Cash pay does not change that, and you can prove your earnings with other evidence.
What if the subcontractor I worked for had no workers’ comp insurance?
The general contractor can be responsible for your benefits under Section 56 of the Workers’ Compensation Law. If no one has coverage, the Uninsured Employers Fund can pay.
Will a Labor Law lawsuit affect my comp benefits?
Yes, which is why the cases have to be coordinated. The comp carrier has a lien on the recovery, and settling the lawsuit without the carrier’s consent can cut off future comp benefits.
Talk to a New York workers’ compensation attorney
The Law Offices of Frank J. Dito, Jr. handles workers’ compensation claims for construction workers from the office on Staten Island, for injured workers throughout the five boroughs and across New York State.
Call 718.701.2776 or 800.310.5520. Consultations are free. If we don’t recover money for you, we don’t get paid.