Hurt in non-paid, pre-employment training.

I was at a pre-employment training at a home health aide agency. On the training I became injured because as I was practicing a procedure (how to break a fall) on the other trainee, who had to fall on me. The agency did not notify me that when she was a child she had Polio and is not able to control her muscle movements causing herself to shake and fall on top of me, causing me to fall to the ground. This happened four years ago. And yesterday was my hearing, which the judge granted nothing. My lawyer is in the process of appealing. The judge stated that since it was not a paid training I had no protection. Please advise your suggestion as now I am disabled because of this accident.

1 answer  |  asked Mar 15, 2001 8:29 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
Should be covered by employer

I can understand your frustration, but you should let who I assume is your Workers' Compensation attorney pursue the appeal, and hope for the best.

I am an employment attorney, but employment attorneys usually do not cover everything falling under the area of employment. For example, I do no work in the unemployment compensation area. To be frank, I do only one highly specialized type of Workers' Compensation case (discrimination under section 120), so that I am not familiar with a lot of the "ins & outs" of the Workers' Compensation Law. But it strikes me that you should be covered by the employer's Workers' Compensation policy even though you were in "pre-employment" training and not being paid.

Although it is too late now, I would say that the employer might have been breaking the law (the federal Fair Labor Standards Act and New York State equivalent as contained in the Labor Law) by not paying you for the training. You might have been able to go to the U.S. or N.Y.S. Department of Labor to have gotten paid. However, even if we were to assume that you should have gotten paid, you would have had only two years (three years if there is a wilfull violation) to pursue this remedy, so its too late. Even then, you would have been compensated for the unpaid wages, not your injuries.

I say you might have had a FLSA claim. However, certain types of employees are not covered by FLSA, particularly "domestics." Home Health Aides are often, but not always, considered domestics, so that you may not have been covered. It would have depended on the facts: your arrangement with the agency, how the agency placed you, etc. In any case, if we assumed the facts worked out in your favor, it is still too late.

posted by David M. Lira  |  Feb 19, 2001 2:36 PM [EST]

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