Do NY state agencies and law enforcement employers have to follow the ban on asking job applicants about their workers' comp claim history?

Subject

State agencies and municipal law enforcement entities are subject to Workers' Compensation Law § 125's ban on inquiring about applicants' claim histories

Plain-English summary

The Workers' Compensation Board was continually being asked by state agencies and municipal law enforcement entities to supply claim histories of applicants under consideration for employment. The chairperson asked the AG whether WCL § 125 (the 1991 statute prohibiting employer inquiries about applicants' workers' comp history) applied to these state and law-enforcement employers.

The AG said yes.

The statutory text supports the conclusion plainly. WCL § 125(1) makes it unlawful for "any employer" to inquire into or consider, for the purpose of assessing fitness for employment, whether a job applicant has filed for or received benefits, or to discriminate against the applicant on that basis. The remedy clause lets aggrieved individuals sue in court for damages including reasonable attorney fees.

Penalties layer on top. WCL § 125(2) makes violation a misdemeanor with a fine up to $1,000. WCL § 125(3) lets the Board chairperson, after a hearing, impose an administrative penalty up to $2,500.

The "any employer" language matters because "employer" is broadly defined in WCL § 2(3): a person, partnership, association, or corporation, plus "the state, a municipal corporation, fire district or other political subdivision of the state." That definition expressly includes the state and its subdivisions. Combined with § 125's "any employer" reach, the conclusion follows: state agencies and municipal law enforcement entities are employers and are bound by the prohibition.

The Board had requested the 1991 legislation to address its own administrative burden of constantly responding to claim-history requests from prospective employers. The Board's memorandum in support stated: "no employee should be subject to discrimination in employment related decisions based on that employees filing for or receipt of workers' compensation benefits. No reasonable inference as to a prospective employee's character or suitability for employment can reasonably be drawn from the fact that the prospective employee filed for or received benefits." Bill Jacket, L 1991, ch 308.

The legislative history is consistent with broad coverage. Neither the statutory language nor the legislative history evidences any intent to exempt the state or its political subdivisions from the prohibition. State employers and municipal law-enforcement entities are bound by the same rule that binds private employers.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why was this question even debated?

Because state agencies and law-enforcement entities sometimes assume that employment-protection laws are aimed at private-sector misconduct and do not apply to government employers. The premise is wrong in many cases (anti-discrimination laws generally apply to public and private employers alike), and it is clearly wrong here: the WCL employer definition explicitly includes the state.

Can a public employer ever consider an applicant's medical history?

Not by asking about workers' comp claims. Other inquiries about an applicant's ability to perform essential job functions, with reasonable accommodations, are governed by the Americans with Disabilities Act (federal) and the New York State Human Rights Law. Those statutes have their own rules on what may be asked and when. A blanket "have you filed for workers' comp?" question is barred regardless.

What if a law enforcement role has bona fide physical requirements?

The employer can require a medical examination of finalists once a conditional offer has been made and require the candidate to demonstrate ability to perform job functions. But asking about claim history is barred at every stage of the hiring process, even after a conditional offer.

What remedies are available to an aggrieved applicant?

Three: a private right of action for damages including reasonable attorney fees (§ 125(1)); criminal prosecution (misdemeanor with $1,000 max fine under § 125(2)); and an administrative penalty up to $2,500 imposed by the Board chairperson after hearing (§ 125(3)). The remedies are cumulative.

Does this apply to existing employees as well?

The statute's text focuses on "job applicants," so the inquiry ban is at the hiring stage. Retaliation against current employees for filing comp claims is addressed separately by other provisions of the WCL and by the Human Rights Law.

Statutory framework

Workers' Compensation Law § 125(1) makes it unlawful for any employer to inquire into or consider, for the purpose of assessing fitness or capability for employment, whether a job applicant has filed for or received benefits, or to discriminate on that basis. The aggrieved person may sue for damages including reasonable attorney fees.

WCL § 125(2) makes violation a misdemeanor punishable by up to $1,000 fine.

WCL § 125(3) lets the Board chairperson impose an administrative penalty up to $2,500 after hearing.

WCL § 2(3) defines "employer" to include private entities plus "the state, a municipal corporation, fire district or other political subdivision of the state."

The section was added by L 1991, ch 308.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/95-F5_pw.pdf

Original opinion text

WORKERS' COMPENSATION LAW § 125; L 1991, CH 308.

Workers' Compensation Law § 125 applies to State agencies and law enforcement entities. The statute makes it unlawful for employers to inquire into or consider, for the purposes of assessing fitness for employment, whether a job applicant has filed for or received workers' compensation benefits. It also prohibits discrimination against job applicants based on their claim history.

June 27, 1995

Hon. Robert Snashall
Chairperson
Workers' Compensation Board
180 Livingston Street
Brooklyn, NY 11248

Formal Opinion
No. 95-F5

Dear Mr. Snashall:

You have asked whether Workers' Compensation Law § 125 applies to State agencies and municipal law enforcement entities.[1] You note that these bodies fall within the statute's definition of "employer" and state that they frequently request the Board to supply claim histories of applicants under consideration for employment.

Workers' Compensation Law § 125 provides:

1. It shall be unlawful for any employer to inquire into, or to consider for the purpose of assessing fitness or capability for employment, whether a job applicant has filed for or received benefits under this chapter, or to discriminate against a job applicant with regard to employment on the basis of that claimant having filed for or received benefits under this chapter. An individual aggrieved under this subdivision may initiate proceedings in a court of competent jurisdiction seeking damages, including reasonable attorney fees, for violation of this subdivision.

2. An employer who violates the provisions of subdivision one of this section shall be guilty of a misdemeanor, and upon conviction shall be punished, except as in this chapter or in the penal law otherwise provided, by a fine of not more than one thousand dollars.

3. In addition to the criminal penalty set forth herein, where the chair has determined that an employer has violated the provisions of subdivision one of this section, the chair may, after a hearing, impose a penalty against such employer in an amount not exceeding twenty-five hundred dollars.

This provision was proposed by the Workers' Compensation Board because it continually was being asked to supply information to prospective employers about the claim history of job applicants. The Board's memorandum in support of the legislation states:

We believe that no employee should be subject to discrimination in employment related decisions based on that employees filing for or receipt of workers' compensation benefits. No reasonable inference as to a prospective employee's character or suitability for employment can reasonably be drawn from the fact that the prospective employee filed for or received benefits.

The Board also noted that the provision would simplify its administrative work. Bill Jacket, L 1991, ch 308.

The Workers' Compensation Law defines employer to include among other entities, a person, partnership, association or corporation and "the state, a municipal corporation, fire district or other political subdivision of the state". Workers' Compensation Law § 2(3). Section 125 expressly makes it unlawful for "any employer" to inquire whether a job applicant has applied for or received benefits. Neither the language of the statute nor its legislative history evidences an intent to exempt the State or its political subdivisions from the prohibition.

We therefore conclude that Workers' Compensation Law § 125 applies to State agencies and municipal law enforcement entities. The statute makes it unlawful for employers to inquire into or consider, for the purposes of assessing fitness for employment, whether a job applicant has filed for or received workers' compensation benefits. It also prohibits discrimination against job applicants based on their claim history.

Very truly yours,

DENNIS C. VACCO
Attorney General

[1] You have recently renewed this request, submitted by former counsel.