Loophole Decision in New York Work Comp Could Impact Holidays

 

Hope v. Warren County Board of Elections, 2011 NY Slip Op 08543, was decided this week. The decisions carries far reaching consequences to businesses employing part-time workers.

 

 

The claimant, employed a day or two a year, had an average weekly wage as a poll inspector of $3.56 per week. The claimant had another part time job which generated an average weekly wage of, roughly, $77 per week.

 

 

The New York compensation law provides that person with concurrent employments have the average weekly wage from ALL employments combined. The rate of compensation is paid by the employer on whose job the injury occurred. Prior to changes in the law in 2007, the employer would be reimbursed for payments made higher by the combined wages from the special funds. In the above case, the employer would have been ultimately liable for only $3.56 per week, using the law prior to 2007.

 

 

However, NY WCL Sect 14(6), which granted the reimbursement, was repealed in 2007. Therefore, the employer, without reimbursement, paid the full award at $80 per week. (The “two-thirds” calculation does not apply to weekly wages less than $150 per week, which have a minimum of $100 per week, unless the wages are below $100 per week, in which case the minimum rate is the average weekly wage.)

 

 

In the present case, the employer paying $80 per week will not cause much worry, but what will happen when the second job has wages which exceed (roughly) $60,000 per year? In that case, the present employer, properly liable for only $3.56 per week, could be required to pay the current maximum of over $770 per week – about 216 times the weekly wage on the job where the injury occurred.

 

 

These hypothetical scenarios are not far fetched. Many employees at higher paying jobs have occasional part time work for far less. In the case of poll inspectors, many view the day or two per year as “civic duty.” Nevertheless, injuries do occur.

 

 

What of businesses that prefer to hire workers looking for a second job part time? These businesses will have consequences which can be disastrous. Workers, depending on what other employment they may have, can cause an employer to pay many multiples of the wages for a single comp claim.

 

 

Businesses that have come to see part time workers as essential (the part time holiday season workers are the best example) may find that the x-mod calculations cannot bear the strain of this new decision. For workers, this could result in substantially fewer holiday part-time opportunities in New York. Truly a “Grinch” decision.