The Simple Answer First
Labor Law 240(1) does not mention union membership. It does not distinguish between workers covered by collective bargaining agreements and those who are not. Both have identical statutory rights to bring a strict liability claim against the property owner and general contractor for gravity-related construction injuries.
Union status is not a prerequisite for protection under the Scaffold Law. Non-union workers — whether they are underpaid, misclassified, paid cash, or employed on prevailing wage projects without prevailing wage payments — have the same rights as IBEW journeymen and ironworker foremen when they fall from a scaffold.
That said, union membership and non-union status create meaningful practical differences in construction accident cases — in how workers' comp interacts with the civil claim, in how wages are calculated for economic loss, and in what benefit structures exist to support injured workers during the lengthy litigation process.
Workers' Compensation: Union vs. Non-Union
Union workers on major construction projects typically receive workers' compensation through their union benefit fund or through the general contractor's insurance program, depending on the project structure. These programs may have higher benefit caps, more cooperative claim administration, or better access to medical providers than individual employer policies.
Non-union workers are covered by whatever workers' compensation insurance their direct employer carries. Small non-union subcontractors sometimes carry minimal comp coverage, operate with gaps in coverage, or in some cases improperly treat workers as independent contractors to avoid the comp requirement entirely. Non-union workers injured on sites where their employer carried inadequate or no comp coverage face a more complicated initial path to medical care and wage replacement.
Under New York Workers' Compensation Law, if an employer fails to carry required coverage, the Uninsured Employers' Fund (UEF) provides benefits to injured workers. The UEF is a backstop — not a first-choice claims processor — and dealing with it involves additional procedural complexity.
Wage Calculations: Why Union Rates Create Higher Economic Loss
The economic loss component of a construction accident damages calculation is based on what the worker actually earned (and would have earned) but for the injury. For union workers, this calculation has several components that non-union workers may lack.
Union wage scales under collective bargaining agreements establish base wage rates that are typically significantly higher than non-union rates in the same trade. In New York City, union electricians (IBEW Local 3) earn upward of $90 per hour in wages and benefits. Non-union electricians may earn $25 to $50 per hour.
Fringe benefits — pension contributions, health insurance, annuity fund contributions — are paid on behalf of union workers in addition to wages. For a journeyman carpenter (NYCCDC Local), fringe benefit rates may add $30 to $45 per hour on top of base wages. These benefits represent real economic value that is lost when a union worker can no longer work in the trade, and they are included in economic loss calculations.
Pension loss — the actuarial value of lost future pension accruals — is a separate damages component available in union worker cases. If a 45-year-old ironworker who would have retired with a fully vested pension can no longer work in the trade, the lost pension value (projected, discounted to present value) is a real economic loss.
The practical result: union construction worker economic loss calculations are typically higher than equivalent non-union calculations, because the base rate, fringe benefits, and pension components are all higher.
Prevailing Wage: A Middle Ground
Non-union workers on public works projects — government construction, municipal projects, school construction — are entitled to prevailing wage under New York Labor Law § 220. Prevailing wage rates are set by the New York State Department of Labor and typically approximate union wage rates for the relevant trade and location.
For economic loss calculations in cases involving non-union workers on prevailing wage projects, the damages expert uses the prevailing wage rate — not the non-union market rate — as the wage basis, since that is what the worker was legally entitled to be paid. This can significantly increase the economic loss calculation for non-union workers on these projects.
Union Contract Grievance Procedures vs. Legal Claims
Union workers sometimes have access to grievance and arbitration procedures under their collective bargaining agreements for workplace disputes. Some workers ask whether their injury claim should go through the union grievance process rather than through a lawsuit.
Union grievance procedures do not cover personal injury claims for Labor Law 240 violations. They address labor relations disputes — disciplinary matters, classification disputes, contract interpretation, wage issues. A personal injury claim arising from a fall from a scaffold is a civil lawsuit, not a labor grievance. The two systems do not overlap, and pursuing one does not affect the other.
Union members who were injured should pursue their civil Labor Law claims through a personal injury attorney, and separately address any workers' comp issues through the appropriate union benefit fund or employer insurance program. The union's legal department may be able to refer to appropriate counsel but typically does not handle the civil litigation itself.
Health Insurance During Litigation
One practical advantage that union members have over many non-union workers during the litigation period is access to union health insurance through their benefit fund. Workers who cannot return to work due to injury often lose employer-sponsored health insurance. Union benefit funds typically continue coverage for members who are unable to work due to injury, for periods that vary by fund but often extend for 12 to 24 months.
Non-union workers who lose their employer's health coverage following a serious injury face a difficult choice: COBRA continuation coverage (expensive), marketplace coverage through ACA (variable cost depending on income), or in serious cases, Medicaid eligibility based on lost income. The impact of this coverage gap on medical treatment — and on the medical documentation that drives case value — is real. Workers who cannot afford specialist care after a serious injury may have inadequate records of the full extent of their harm.
Frequently Asked Questions
Q: I'm a non-union construction worker and fell from a scaffold. Do I have a Labor Law 240 claim?
Yes. Labor Law 240(1) applies equally to union and non-union workers. Your union status is entirely irrelevant to your right to bring a strict liability claim against the property owner and general contractor for a gravity-related construction injury. The statute protects all persons employed in covered construction activities, without any reference to collective bargaining status.
Q: I was paid off the books — no taxes, no comp. Can I still sue the property owner?
Yes. Workers who are paid off the books retain full rights under Labor Law 240. The property owner and general contractor's non-delegable duty runs to all workers performing covered construction activities on their site, regardless of how those workers are compensated. Your off-the-books arrangement is between you and your direct employer. It does not affect your rights against the site owner and GC. Workers' compensation may require additional effort to access if your employer failed to carry proper coverage, but the civil Labor Law claim proceeds independently.
Q: My union says I should file a grievance after my injury. Does filing a grievance affect my civil lawsuit?
No. A union grievance is a labor relations procedure. A Labor Law 240 civil lawsuit is a personal injury proceeding in civil court. They operate in entirely separate systems, cover different subject matter, and are not in conflict. Filing a grievance does not start a limitations clock on your civil claim, and filing a civil lawsuit does not constitute a waiver of any union rights. You can pursue both simultaneously if both are appropriate for your situation — though most serious injury cases involve the civil claim as the primary financial remedy.
Q: I'm a union member and my union's safety representative said the accident was the sub's fault, not the GC's. Should I believe that?
The union's safety representative is assessing the situation from a labor relations perspective, not a legal one. The determination of liability in a Labor Law 240 case is a legal question that depends on who was the owner and general contractor, whether proper safety equipment was provided, and whether the failure caused the injury. Who the union safety rep believes was "at fault" is not the legal standard. A construction accident attorney evaluates these questions through the strict liability framework — and the analysis may well result in claims against both the sub's employer (if the sub is a third party) and the GC. Consult with a personal injury attorney for a legal assessment of your claim.
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