New Case on the “Going and Coming” Rule in New York Good for Employers and Carriers

In Matter of Rodriguez v New York City Tr. Auth., decided May 31, 2018, the Appellate Division found that the injuries sustained by a subway conductor were not compensable even though the employee was on the employer’s property at the time of loss, was wearing the uniform provided by the employer, and was using a “free pass” provided by the employer to travel to the final work location. The Appellate Panel found that the claimant’s injuries were the result of a normal commute and therefore were not compensable, even though she was attacked after refusing to allow a turnstile jumper access to the station she was traveling through.

We will be presenting a live webinar today, June 18th at 12PM EST and 3PM EST discussing the facts of this case and the impact of the decision on the defense of your off-premises cases in New York as well as answering questions LIVE about specific fact scenarios like this one. Please feel free to join me for one of the sessions or to invite a member of your team at {{company_name}} to jump in. Here’s the link to register for either session: http://loisllc.com/webinars/register-for-webinars/

What is the “Going and Coming Rule”?

Employees are not deemed to be in the course of their employment when they are traveling to- and from-work. This rule of thumb is referred to as the “going-and-coming rule” or the “portal-to-portal” rule. Basically, there is no door-to-door coverage: the risk of travel to and from work is not distinctly related to any specific employment, and so is generally considered not arising out of and in the course of any particular employment.

​Exceptions to the Going-and-Coming Rule

Of course, there are exceptions. For example:

  • Outside workers – like traveling salesmen – who do not work at a fixed location and are required to travel between work locations. (See Bennett v. Marine Works, 273 N.Y. 429 [1937]).
  • Special errands – being sent by the employer to do something specific (and work-related). (See Neacosia v. New York Power Auth., 85 N.Y.2d 471 [1995]).
  • Paid travel expenses – where an employee is paid to use their own car for work-related travel, an injury occurring during that travel may be found to be compensable.
  • Some home office situations – the WCB recognizes that it is not unusual for management and professional workers to have home office with links to the employer’s office, making injuries in those locations compensable.
  • Entering or leaving the employer’s premises – in particular, injuries sustained while the employee is entering the worksite have been held compensable where the entrance to the worksite posed a special hazard. (See Bigley v. J & R Music Elec., 702 N.Y.S.2d 474 [3d Dep’t 2000].)

Apply the rules: Carpool Case.

In a recent case the WCB denied a claim for dependency benefits to the widow and two children of a worker who died in a car accident while traveling in a carpool arranged by his employer to a job site. Davis v. Labor Ready, 891 N.Y.S.2d 759 (App. Div. 2010).

The claimant was an employee of “Labor Ready” which provides temporary workers. Labor Ready did not provide the employee with a ride to his work location, or pay for his travel time or travel expenses. Instead, the employer encouraged employees to carpool to remote locations.

In that case, the claimant was killed in a car accident on the 26-mile return trip. A Workers’ Compensation Law Judge awarded benefits to the decedent’s widow and two minor children.

The employer argued that the claimant was not in the course of his employment at the time of the accident. Labor Ready argued that the claimant was not paid an hourly wage while he traveled to the work site. It was undisputed that Labor Ready did not provide the transportation, and that the claimant was actually paying his co-employee $2 in gas money for the ride to the work site. The driver, a Labor Ready employee, was not paid for driving the co-workers to-and-from the worksite.

The Appellate Division upheld the denial of benefits, stating “we cannot conclude that Labor Ready had ‘exclusive control of the conveyance’ that was used to provide transportation.”

Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com