New York: Employee/Independent Contractor Status Must be Determined by Board

A New York appellate court recently ruled that a state trial court was beyond its powers when it determined that an injured worker was an independent contractor and not an employee. Such a determination was for the state’s Workers’ Compensation Board; the parties could not choose the state courts as the forum for resolution of such core issues. The appellate court stressed that here the defendant had brought forth an affidavit from one of its employees in which the employee stated that he trained and closely supervised the plaintiff, set the plaintiff's hours on the days the plaintiff worked, and directed the plaintiff's work. In the face of the affidavit, the trial court should have placed the case in abeyance, pending a determination of the Board.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Findlater v Catering by Michael Schick, Inc., 2018 N.Y. App. Div. LEXIS 7728 (2d Dept., Nov. 14, 2018)

See generally Larson’s Workers’ Compensation Law, § 102.06.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, See