You were hired by one company. Your checks came from another. The vehicle or the equipment belonged to a third. You get hurt, and every one of them tells the Workers’ Compensation Board that somebody else was your employer.
This is more common than it sounds — staffing and temp agencies, affiliated companies under shared ownership, subcontracted crews, medical transport and car service bases, companies that were bought and renamed. It is also a fight that happens over your head, while your claim sits.
General employer, special employer
New York law does not force the Board to pick one company and let the other walk. It recognizes that a worker can have two employers at once.
The general employer is generally the one you belong to — the business that hired you, carries you on its books, and lends you out. The special employer is the one that takes over the direction of your work while you are doing the job.
Whether a general employee of one company is also a special employee of another “is a factual issue for the Board to resolve and its determination must be upheld if supported by substantial evidence” (Matter of Victor v Steel Style, Inc., 56 AD3d 1099 [2008]).
What the Board weighs
The factors are “the right to control, the method of payment, the furnishing of equipment, the right to discharge and the relative nature of the work” (Matter of Shoemaker v Manpower, Inc., 223 AD2d 787 [1996]).
No single one of them settles it, but the Court of Appeals has identified the element that carries the most weight: “who controls and directs the manner, details and ultimate result of the employee’s work” (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 558 [1991]).
The presumption that protects you
Here is the part worth knowing, because it keeps the companies from pointing at each other indefinitely.
“In the absence of a clear demonstration of surrender of control by the general employer and assumption of control by the special employer, the general employment is presumed to continue” (Matter of Oppedisano v Randall Elec., 285 AD2d 759, 760 [2001]).
In plain terms: the company that hired you stays on the hook unless someone actually proves it handed control over and another company took it up. Silence, confusion, or a bare assertion does not shift the responsibility. The default runs in the injured worker’s favor.
Why this is usually good news
When a claimant hears that two insurance companies are arguing about who covers him, it sounds like a disaster. Generally it is not.
A finding that you were the general employee of one company and the special employee of another means you had an employer — which is the thing the carriers were trying to establish you did not have. Two candidates for the role is a much better position than none. The Board can sort out which carrier pays; the question that decides your benefits is whether you were an employee at all.
It also matters that this is separate from the independent contractor question. A carrier that cannot win on “he worked for the other company” will often fall back on “he was in business for himself,” which is a different argument answered by different facts — covered on our page about being handed a 1099 instead of a W-2.
What to do
- Name every company you can. On the C-3, and at the hearing. The one that hired you, the one on your checks, the one whose name was on the vehicle or the job site, the one whose supervisor gave you orders.
- Ask that each one be put on notice. An entity that is not in the case cannot be found liable. Getting them all in front of the Board early prevents months of delay later.
- Keep whatever shows the chain. Pay records and which name was on them, and when that changed. Vehicle registrations and markings. Dispatch or scheduling messages. Who you reported the accident to.
- Be able to name your supervisor. Who told you what to do, and which company that person worked for, is often the single most useful fact in the case.
- Expect it to take time. These claims involve multiple hearings while the relationships get developed. That is the process working, not your claim failing.
If none of the companies turns out to have had coverage, the claim is not over — see what happens when your employer has no workers’ comp insurance.
Talk to a New York workers’ compensation attorney
If two or more companies are each telling you that you worked for the other one, do not wait for them to sort it out. They have no reason to hurry, and you are the one without a check.
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. Employment status is decided by the Board on the evidence in the record, and every case turns on its own facts.