Gilbert Fisher: Employer-and-employee relationships can take a variety of forms. And although probably the most common is a simple hourly arrangement, where an employee works for an hourly wage, oftentimes, and for a variety of reasons, an employer and employee might enter into an arrangement where the employee is called an independent contractor.
Now, in those cases, usually the motivation is something like, "Well, we'll pay you cash. We won't deduct your taxes, and you're responsible for your own taxes." And it might be, or at least on the surface, seem like it's an easier arrangement for those people who are involved, but it's not that simple. Just because your employer calls you an independent contractor, doesn't mean you are. And the law has some specific criteria that must be met, or you are not an independent contractor.
So in other words, even though your employer says, "You know what? You're an independent contractor. You're not covered for work comp," but you're injured on the job, that doesn't mean that's the end of it. And in workers' compensation, we look at the substance of that relationship, that employment relationship, more than what is on the surface. So in other words, just because they call it an employer/an employee/an independent contract relationship, doesn't mean it is.
In court, they're going to look a lot closer at the substance of that relationship. If, for example, your employer bases your compensation on an hourly rate and then pays you based on the hours you work, that may not be an independent contractor relationship, even though the employer has said that's what you are.
Generally, the more control the employer has over you, the more likely you're going to be deemed a regular employee and, therefore, entitled to workers' compensation benefits.
So a true independent contractor is someone, for example, who strikes an agreement to perform a service for the employer. And really, the only terms of that agreement are how much they're going to be paid, and what they're going to do for that person, okay? And the control over that, the hours they work, how they go about it, is pretty much under the control of the independent contractor.
Now, in situations where the employer exercises more control over that, you may have actually crossed the line back into an employer/employee relationship, even though they're calling it an independent contractor relationship.
For example, if your compensation is based on the hours that you work versus the whole project, you're probably an employee versus an independent contractor, regardless of what you're calling it.
For example, if the employer is involved in the specific decisions that are made in how you carry out a job, you're probably an employee.
So even though you may have been denied workers' compensation benefits because the employer is claiming you're an independent contractor, and even though they're paying you with a 1099, you would probably be very well-advised to talk to an attorney, if you're injured in that situation, and have them go over the specifics of your relationship with your employer. And you may find out that, in fact, you're an employee for the purposes of workers' comp, and you are entitled to workers' compensation benefits.
Narrator: If you, or a loved one, need help with a workers' compensation issue, call our office today.