When “Room and Board” is used to calculate wages in New York

Awards for wage replacement are equal to 66.6% of the employee’s average weekly wage, subject to maximums (currently $ 870.61) and minimums (currently $150 per week). Workers’ Compensation Law § 2(9) defines wages as “the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including the reasonable value of board, rent, housing, lodging or similar advantage received from the employer.” In addition to monetary wages, some employee are paid other consideration for performing work, such as tips, bonuses, and housing allowances or “room and board.”

In these cases, the reasonable monetary value of the room and board is to be established an included in the employee’s wages. Smith v. St. Mary’s Hospital, 259 N.Y.S.2d 373 (3d Dept. 1965). While the employee may seek to inflate the value of this consideration, and the employer may seek to deflate the value, the ultimate determination of the valuation of room and board is up to the Board. The Board does not have to accept the figures offered by either the claimant or the defense, but can set its own value for the room and board. O’Neil v. William Randolph Dairy Farm, 410 N.Y.S.2d 695 (3d Dept. 1978).

Practically speaking, where an employer is offering to include room and board in the wage calculation, the employer should use a best estimation where no fixed price is available. The claimant is free to argue that the room and board is undervalued, and ultimately a Law judge will make the determination.

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 2016-2019 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com