In our last post, we mentioned a recent report by the New York Committee for Occupational Safety and Health which suggested possible criminal prosecution for private sanitation companies who contribute to a worker’s death because of indifference or willful disregard of a legal obligation. The suggestion is an interesting one, and raises the issue of what civil remedies there may be for workers harmed under such circumstances.
Generally speaking, workers’ compensation is the exclusive remedy available to workers injured on the job. The reason for this is that workers’ compensation is premised upon an exchange of promises between employer and employee that the latter will give up the right to sue in court in exchange for predictable compensation for workplace injuries. Most of the time, then, a worker may not sue an employer for damages following a workplace injury, but it is possible.
Most states recognize certain exceptions to the exclusive remedy rule, including New York. A worker may be able to sue an employer, for instance, when the employer failed to secure workers’ compensation insurance as required by state law. A worker may also be able to sue an employer in court when the employer committed an intentional tort against the worker.
Intentional torts include action like assault, battery, false imprisonment, intentional infliction of emotional distress, and other wrongdoing done with purpose. Such situations are bound to be rare in the workplace, and most injured workers are not going to qualify for compensation outside the workers’ compensation system on the basis of intentionally tortuous action. That being said, it can occur. Recognizing when an employer has committed an intentional tort is not necessarily always easy, and it is important to consult with an experienced attorney to receive guidance and advocacy.