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09/7/2022
The Daily Record
YOUR COUNSEL - Important Deadlines
Steven V. Modica, Esq. & Anne Modica Eich, Esq.

Lawyers tend to limit their practice to a few areas. Nonetheless, people come to us with a myriad of problems—many of which fall outside our expertise.

Through this column, we provide practical information to help you assist those who have employment, disability benefit, Workers’ Compensation, and related issues. This information also helps lawyers understand their rights and responsibilities as employers.

As much as we hate to be tied to the clock or to our calendars, good lawyering requires doing things in a timely manner. This means we must return emails without unreasonable delay, get to court appearances on time, and, often most importantly, be aware of numerous deadlines and statutes of limitations.

As you know, a statute of limitations sets the maximum time that parties must initiate legal proceedings from the date of an alleged offense. They exist for civil and criminal causes of action and begin to run from the date of the injury or date the injury was or should have been discovered.

The law also provides for various other deadlines, waiting periods, and timeframes that are helpful to have in the back of your mind. This article summarizes important deadlines and timeframes relevant to labor and employment, Social Security Disability, and Workers’ Compensation cases.

Labor & Employment

Under the Family Medical Leave Act (“FMLA”), eligible employees can take 12 weeks of unpaid, job-protected leave for specified family and medical reasons. FMLA applies to those who work for an employer with at least 50 employees.

Most employees who work for private employers in New York State are eligible to take Paid Family Leave. Employees can take up to 12 weeks of Paid Family Leave.

Under the New York Civil Service Law, public employers must hold an employee’s job for one year if that employee has a physical or mental disability that prevents him or her from performing their job duties.

Employers cannot take an adverse employment action against an employee that is motivated by the employee’s membership in a protected class. If an employee believes he or she has been subjected to unlawful discrimination, they can file a claim with the New York State Division of Human Rights or the United States Equal Employment Opportunity Commission. Most charges of unlawful discrimination must be filed within 300 days from the date of the adverse employment action.

As of August 2020, the deadline to file a sexual harassment complaint with the New York State Division of Human Rights was extended from one year to three years. This means a claim must be filed within three years of the last act of harassment.

If an employee opts to file an employment discrimination lawsuit under the New York Human Rights Law in state court instead of filing with the New York State Division of Human Rights, he or she must do this within three years of the adverse employment action.

As of October 2021, the statute of limitations to sue for unlawful retaliation under New York’s whistleblower protection statute (N.Y. Labor Law § 740) was extended from one year to two years.

Under the New York Legal Activities Law (N.Y. Labor Law § 201-d), an aggrieved employee may commence a lawsuit for equitable relief and damages within three years from the date of the alleged violation. This law protects employees who engage in various legal activities including, but not limited to, the recreational use of cannabis.

Under the federal False Claims Act, someone who has evidence of fraud against the federal government can blow the whistle though a qui tam action (a lawsuit brought by a private individual on behalf of the government).

The statute of limitations for qui tam actions under federal law is the longer of (a) six years from the time the fraud was committed; or (b) three years from the time the government official with responsibility for investigating the fraud knew or reasonably should have known of the facts relating to the fraud; but (c) no more than 10 years after the fraud was committed. The statute of limitations for whistleblower retaliation under the False Claims Act is three years from the time of the retaliation.

Under the New York False Claims Act, someone who has evidence of fraud against the state and/or a local government can blow the whistle though a qui tam action (a lawsuit brought by a private individual on behalf of the government).

The statute of limitations for qui tam actions under state law is 10 years from when the fraud was committed or 10 years from when the employer retaliates against an employee for reporting the fraud.

Social Security Disability

No one is paid for the first five full months they are disabled because it is a waiting period for Social Security Disability (“SSD”) benefits. Additionally, no one can collect SSD earlier than one year from when they applied.

Thus, to maximize the number of months of potential benefits a person can collect, they should apply for SSD within 17 months of when they became disabled (or stopped working).

Most unfavorable decisions from the Social Security Administration must be appealed within 60 days. Because these decisions are sent by mail and the agency assumes you received it within five days of the date on the notice, you calculate this deadline by adding 65 days to the date of the adverse decision.

SSD cases are sometimes related to alleged medical malpractice. An injured patient has 2.5 years from the date of the malpractice or from the end of continuous treatment to file a lawsuit. If the malpractice is not discovered until later (like in the case of a surgical object left behind during an operation), New York’s “discovery” rule allows for legal action within one year of the discovery date.

Workers’ Compensation

An employee has 30 days to notify an employer of a work-related injury. He or she has 90 days to serve a Notice of Claim for a work injury on a public project to preserve their right to sue someone other than their employer.

Injured workers must get medical treatment every 90 days to preserve their opportunity to collect Workers’ Compensation lost income benefits.

An injured worker has two years from the date of the work accident or when he or she knew or should have known that their illness or injury was work-related to file a claim with the Workers’ Compensation Board.

A worker must file a claim for occupational hearing loss within two years of the date of disablement. The date of disablement under this circumstance is usually the last day of the three-month period after a worker leaves the employment where they were exposed to harmful noise.

Workers’ Compensation claims and personal injury lawsuits often go hand in hand. An individual generally has three years to file a personal injury lawsuit; however, this deadline varies depending on the defendant. If the defendant is the State of New York, you have two years from the date of the accident to file a claim if you previously filed a Notice of Intention to File a Claim. If the defendant is a municipal entity (a city, town, or village), the deadline to file a lawsuit is one year and 90 days.

Practical Advice

When you are working on a case with important deadlines, be sure to use your case management software to track those deadlines with advance reminders. Inform your clients of pertinent deadlines and timeframes so they have a better idea of what to expect and so they avoid giving up any rights or benefits to which they may be entitled.

Steven V. Modica, Esq. founded Modica Law Firm in 1995. His daughter, Anne Modica Eich, Esq., joined the firm in January 2020 and was elevated to partner in April 2022. Modica Law Firm handles labor and employment, disability benefit, Workers’ Compensation, and personal injury cases. Steve Modica is also an experienced mediator and arbitrator.

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