“We don’t have workers’ comp.”
It is said with total confidence, usually within a day of the injury, and it ends a great many claims that should never have ended. New York built the system precisely so that an employer’s failure to carry insurance does not become the injured worker’s problem.
In fact, if your employer really had no coverage, you may have two routes rather than one — and the second is not widely known.
First, check it yourself
You do not have to take anyone’s word for this. The Workers’ Compensation Board runs a public coverage search, and it holds workers’ compensation policy and coverage information from 1 January 2002 to date.
Two practical notes. It matches on the beginning of an employer’s name, so the exact legal name matters — the name on your pay stub or on the sign outside may not be the entity that holds the policy. And for employers operating before 2002 you have to call the Board rather than search.
Plenty of workers are told there is no coverage and find a live policy in about ninety seconds.
If there genuinely is none: the Uninsured Employers Fund
Your claim still goes forward. New York maintains the Uninsured Employers Fund, described by the Board as the special fund used to pay uninsured claims, and financed out of the penalties collected from employers who failed to carry coverage.
The employer does not walk away from it either. An uninsured employer is responsible for all wage and medical benefits awarded to the injured employee, the cost of legal representation in defending the claim, and assessments and penalties on top.
So the practical answer to “we don’t have comp” is that the system already anticipated this. The gap gets filled, and the bill lands where it belongs.
The choice most injured workers never hear about
Here is the part that changes cases.
Ordinarily workers’ compensation is your exclusive remedy against your employer — you cannot sue them. That protection is the employer’s reward for carrying insurance. An employer who did not carry it does not get to keep it.
Workers’ Compensation Law § 11, headed Alternative remedy, provides that where the employer failed to secure the payment of compensation, an injured employee — or their legal representative where the injury caused death — may, at their option, elect to claim compensation under the chapter, or to maintain an action in the courts for damages on account of the injury.
And that court action is stacked differently from an ordinary negligence case. In it:
- It is not necessary to plead or prove freedom from contributory negligence.
- The employer may not plead that the injury was caused by the negligence of a fellow servant.
- The employer may not plead assumption of risk.
- The employer may not plead that the injury was due to your own contributory negligence.
The classic defenses are simply gone.
Why that is a real decision and not an obvious one
A lawsuit can recover things compensation never pays — pain and suffering above all. That is the appeal, and it is genuine.
But read the situation honestly. The defendant is, by definition, a business that was not carrying required insurance. A judgment against a company with no insurance and no assets is a piece of paper. The Fund, by contrast, actually pays.
The statute calls it an election, and the right answer depends on who the employer actually is, what they have, and what happened to you. This is not a decision to make from a web page, and it is not one to make in the first week on the strength of a phone call from your boss.
What the employer is facing
Worth knowing, because it explains why these cases often resolve once someone files.
| Exposure | Amount |
|---|---|
| Civil penalty | Up to $2,000 for every 10-day period without coverage, or two times the cost of compensation |
| Criminal — 5 or fewer employees | Misdemeanor, $1,000 to $5,000 |
| Criminal — more than 5 employees | Felony, $5,000 to $50,000 |
| Repeat offense | Felony, $10,000 to $50,000 |
| Stop-work order | Business operations cease |
| Public works debarment | One year (misdemeanor) or five years (felony) |
Penalties collected go into the Fund that pays uninsured claims — including, potentially, yours.
Reporting an uninsured employer
Where coverage cannot be found or you suspect a business is operating uninsured, the Board takes reports on Form CE-150-RF, the employer whistleblower form. It can be submitted online, mailed, or made by phone to the Board’s compliance line.
Separately, if you are worried about being punished for any of this, that is its own protected territory — see being fired for filing a workers’ comp claim.
What to do this week
- Get the employer’s exact legal name — off a pay stub, a check, a contract, the certificate in the break room. It is what every search depends on.
- Preserve proof you worked there. If you were paid in cash this is the whole ballgame, and it is covered on our page about an employer who denies you ever worked there.
- Do not take a cash payment in exchange for letting it go. It will not cover the surgery, and it is often offered precisely because somebody knows what the exposure is.
- Do not sign anything describing the accident as happening somewhere other than at work.
- File anyway. “There is no insurance” is not a reason to skip the claim. It is a reason to make it properly.
Before the claim goes to the Uninsured Employers Fund, it is worth testing whether you were an employee of the business after all — see being handed a 1099 instead of a W-2 and general and special employers.
Talk to a New York workers’ compensation attorney
If you have been told there is no coverage, that is a reason to call sooner rather than later — partly because you may have a choice to make, and choices have a way of closing quietly.
Call (718) 701-2776. The consultation costs nothing, and you will speak with me.
We handle workers’ compensation claims for injured workers throughout the five boroughs and across New York State. If we don’t recover money for you, we don’t get paid.
Nothing on this page is legal advice about your own claim. Whether an employer was in fact uninsured, and which remedy is right in a particular case, depend on the facts and are decided on the record.