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It’s Back to School Time: Injuries and Employment Discrimination at School

Posted by Giovanna A. D'Orazio | Sep 04, 2018

Inspired by Back to School season, let's talk about some considerations if you have a claim against a school in New York. 

First up, personal injuries. 

Public schools in New York enjoy a layer of protection provided by the Education Law's notice of claim requirement (found at Section 3813).  If you are injured at a public school, as a prerequisite to filing a lawsuit, you have to serve a notice of claim on the school district within 90 days of the date of your accident.  This applies to students as well as to other visitors to the property.  What is a notice of claim exactly?  It's a document in which you lay out the facts of what happened and what you are seeking to resolve your claim, in order to (literally) put the school on notice of your claim. Public schools also benefit from the shorter statute of limitations applicable to tort (i.e., negligence) claims against public entities and municipalities of one year and 90 days. 

If you or your child are injured at a school, it is important to contact an attorney as soon as possible to ensure that notice of claim requirements are followed to the letter. 

What if you are an employee of the school?  Typically, employees in New York cannot sue their employers for negligence because of the Workers' Compensation law.  That means if you slip on a spill in the cafeteria that should have been cleaned up sooner, your remedy is in Workers' Comp and not in a lawsuit.  Employees who are injured at work can have recourse, however, if there is a third party responsible.  So, if a contractor is doing work at the school and you are injured because of its negligence, you can have what's called a third party claim against the contractor and still receive Workers' Compensation.  However, your recovery in a personal injury lawsuit will likely be reduced by what you have already received, i.e., the Workers' Comp lien.

Next up, employment issues.

Public schools are subject to the same state and federal anti-discrimination laws as any other employer, as well as the Family and Medical Leave Act.  However, when it comes to state law claims, they continue to enjoy the protection of the notice of claim requirement.  (We say “protection”, because it's a relatively short deadline and, if you miss it, you may lose your claim).   Federal claims are not affected by the notice of claim requirement. 

Complying with notice of claim requirements may be important, even if you have federal claims, because state law can be better for employees and you want to have some backup if your federal claim is dismissed.  For example, as a general matter, we would describe the case law on disability discrimination to be more favorable under state law.  Additionally, state law explicitly protects certain categories of employees where federal law either does not or the law is iffy or in flux.  For example, state law is more protective of LGBTQ employees and pregnant employees than federal law. 

In public schools, employees also enjoy some, albeit limited, First Amendment protection when they speak on matters of public concern.

Employment in public schools in New York also implicates protections offered by the Education Law, the Taylor Law (applicable to public employee unions) and the Civil Service Law…but those issues are outside the scope of this post.  The take away is that if you are having an issue or action has been taken against you, you should contact an attorney sooner rather than later given the various shorter time deadlines that may be applicable.

If you have been injured on school property, or are an employee who has been discriminated or retaliated against, give us a call.  We're happy to see if we can help.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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