Posted on Friday, March 24th, 2017 at 2:00 pm
One of the most complex parts of any workers’ compensation case is determining whether the employee is eligible for workers’ compensation benefits. In both North Carolina and Virginia, one key test is whether the worker was an employee or an independent contractor. Generally, workers who are employees can receive workers’ compensation benefits Generally, independent contractors are not eligible for state workers’ compensation benefits.
Workers should understand that the determination of employee status is not one that the employer makes. The decision is made by the Deputy Commissioner of the Workers Compensation Commission or Industrial Commission.
Many employers try to classify their workers as sub-contractors vs. employees to avoid having to provide work injury insurance for them, paying payroll taxes, and/or to avoid having to purchase health insurance under Obamacare for their employees. This is called “misclassification” by the employer is actually a crime.
If you were injured while working, you should definitely consult with an experienced work injury lawyer like Joe Miller Esq. He will review many different factors which affect your real job status. In the right case, he can persuade the Deputy Commissioner that you were really an employee and should get full workers compensation injury benefits. We have been successful in several of these kinds of cases.
Some employers will also settle these kinds of cases to avoid a hearing in order to avoid their “business model” of misclassifying employees as subcontractors from being exposed in a public forum, which might subject them to IRS scrutiny.
Some of the important workplace factors the determine if a worker is an employee or an independent contractor are:
Because the construction industry contains so many trades that are brought in to complete jobs, we often see the most contentious battles of this employee vs. subcontractor issue take place when there is a work injury on a construction site.
Workers can be considered employees even if they are day laborers, borrowed employees, or part-time workers.
Any reverse situation (the worker doesn’t get benefits, and doesn’t have pay deductions) may tend to indicate the worker is an independent contractor. But again, this is certainly not determinative. Some employers pay in cash and the folks who work for them can be employees. The key factor is control over the means and methods of the work.
Many employers try to use the payment method to try and convince workers that they are independent contractors – because the employer then doesn’t have to pay for the benefits, pays less taxes, and has less administrative work.
As mentioned previously, though, many times, the employer position is just self-serving, as a means to operate the business on the cheap.
Some employers will even go so far as to have their employees sign “contracts” where the employee declares an understanding that he or she is an independent contractor and not an employee.
You should know that such agreements are usually not worth the paper they are written on.
The Virginia Workers Compensation Commission and the NC Industrial Commission will ignore such documents IF there are “facts on the ground” that indicate that the worker is treated as an employee.
For instance, are there rules and procedures that are enforced about how, when and where the job is to be performed? Does the employer demand strict adherence to those rules on pain of the “termination of the contract”? If so, that is indicative of an employer/employee relationship and not a subcontractor relationship.
The other listed factors can flip the employer’s decision so that the worker is formally considered an employee.
A typical example of an independent contractor is a painter who has all his own ladders, paint and equipment, and is hired by a contractor on a house to come in and paint. The painter comes when he wants and leaves when he wants. The contractor provides zero equipment or supplies. The scope of the painter’s work and the price is determined by a contract drawn up by the painter and signed by the owner or general contractor. The painter controls when he begins the work and is finished when the job is complete.
Training. Generally, employers train their employees but they don’t train or educate independent contractors. Just because a worker does his/her job away from the office doesn’t mean the worker is an independent contractor. For example, many employees are allowed to telecommute.
The bottom line for the state workers’ compensation Deputy Commissioner is to look at the entire work relationship, not one specific factor.
Attorney Joe Miller has been fighting for injured workers for over 25 years. He has helped thousands of workers get strong recoveries. For advice on your work-relation status and all other work injury issues please make an appointment with Joe Miller Esq. by phoning him at (888) 694-1671 or using his contact form.