I Was Assaulted at Work. Can I Sue My Employer or Co-Worker?

Workers’ Compensation as the Exclusive Remedy Against the Employer

Workers’ compensation serves as an employee’s exclusive remedy against their employer for injuries sustained in the scope of employment.

This statutory system represents a historic compromise. In exchange for guaranteed, no-fault medical coverage and partial wage replacement, the employee surrenders the right to sue the employer in civil court for common-law negligence. Because a workplace assault occurs during employment, the employer is shielded from traditional negligence claims, such as negligent hiring, retention, or supervision, under the exclusivity bar (New York Workers’ Compensation Law WCL § 11 and § 29(6)). That exclusive bar to negligence cases also extends to claims against fellow employees for negligence.

Even though you were assaulted at work during normal business hours—an intentional act, not negligence—you still have the right to file a Workers’ Compensation claim.

Exceptions to the Exclusive Remedy Rule

The exclusivity rule provides broad protection to employers, but it is not absolute. Several key exceptions allow an injured worker to pursue remedies outside the standard workers’ compensation system:

• Civil Suits Against the Individual Attacker. The exclusivity bar does not protect an individual co-worker who commits an intentional, violent act.
• Direct Employer Authorization or Intent. If an employer explicitly commands, directs, or directly participates in the assault, the employer loses its statutory shield, opening the door to an intentional tort lawsuit.
• Failure to Secure Compensation Insurance. Under WCL § 11, if an employer fails to maintain mandatory workers’ compensation coverage, the injured worker may bring a direct civil action against the employer. In such actions, the employer is barred from asserting common-law defenses like contributory negligence or assumption of risk.

Why Workers’ Compensation Should Be the Primary Claim

Attorneys generally counsel clients to apply for and accept workers’ compensation as their primary line of recovery for three core reasons:

1. Immediate, Guaranteed Financial Relief. Workers’ compensation provides prompt payment for 100% of necessary medical care and statutory indemnity benefits for lost wages without requiring the worker to prove fault or litigate a liability claim.
2. Broad Coverage for Workplace Violence. Even though a physical assault is an intentional, criminal act by the perpetrator, the law treats it as an “accidental injury” relative to the employer-employee relationship. So long as the altercation arose out of a work-related disagreement rather than purely personal animosity, the victim is fully covered under the statute (Craig v. Jefferson Auto Painting Co., 33 A.D.2d 526 (3d Dept. 1969); McGrinder v. Sullivan, 290 N.Y. 11 (1943)).
3. Preservation of Rights Against the Perpetrator. Accepting workers’ compensation benefits does not waive the injured worker’s legal right to file a separate civil lawsuit for assault and battery against the individual assailant.

Important Carrier Consent Warning: Under WCL § 29, if an injured worker pursues a third-party or co-worker civil suit and reaches a settlement, they must obtain written consent or a formal compromise order from the workers’ compensation carrier prior to settling. Settling a civil claim without carrier consent can result in the immediate forfeiture of all future workers’ compensation medical and wage benefits (Matter of Beth V. v. New York State Off. of Children & Family Servs., 98 A.D.3d 1200 (3d Dept. 2012)).

The Practical Realities of Suing a Co-Worker

While filing a civil suit against the individual assailant is legally permissible, plaintiffs face significant practical hurdles in court:

• Insurance Exclusions and Financing Challenges. Most civil injury litigation relies on liability insurance (such as homeowner’s, renter’s, or umbrella policies). However, virtually all insurance policies explicitly exclude coverage for intentional acts, assault, and battery. Because there is no insurance policy to cover the judgment, personal injury attorneys will rarely accept an assault case on a contingency fee basis, requiring the client to pay out-of-pocket hourly retainers.
• Collection and Recovery Barriers. Even if a plaintiff secures a civil judgment against an individual co-worker, collecting on that judgment is notoriously difficult. Individual defendants are frequently judgment-proof. Post-judgment collection tools are costly, slow, and often yield minimal recovery.
• Lien on Proceeds. Even if the claimant succeeds in collecting damages against the person who assaulted them, the Workers’ Compensation carrier retains a statutory lien on the proceeds of that recovery.

Summary Advice

We recommend that clients file for and accept workers’ compensation. That ensures their immediate medical care and lost wages are covered up front. It preserves their right to evaluate whether bringing a separate civil suit against the individual attacker makes economic sense.

By James Santner, Esq.

If you or someone you know was injured in an on-the-job incident, contact our firm. Compensation claimants pay no retainer. The Compensation Board awards fees only if you are successful.