Q Am I an Employee or an Independent Contractor under Workers Compensation?
When an employee is injured on the job, the employer is responsible for paying the medical bills of the injured employee and perhaps other workers compensation benefits. On occasion, we have been called upon to assist a worker who was injured due an industrial accident where the employer claimed that the incurred party wasn’t an employee of the employer but rather an independent contractor in an attempt to avoid responsibility for the injured party’s medical expenses.
THE RIGHT TO CONTROL TEST
The designation of whether an injured worker is an independent contractor or an employee doesn’t just rest on the employer’s claim or classification of the injured worker. There are a number of questions that need to be answered to make the determination as to whether an injured worker really is an independent contractor over that of an employee under what is commonly referred to as the "right to control test" including, but not limited to, the following:
1) Did the injured worker set his or her own hours at work or did the employer?
2) Did the injured worker provide his or her own equipment, tools or materials for the completion of the worker’s tasks while on the job or did the employer?
3) Did the injured worker accomplish the tasks pertaining to the work according to the worker’s discretion or did the employer provide instructions on how to do the tasks at hand leading up to or at the time the worker was injured?
4) How well was the injured worker supervised by the employer?
5) Could the injured worker be dismissed or terminated off the job by the employer "at will" prior to the injury "without cause" or was the a contract in place that would have entitled the worker to sue for breach of contract for an early dismissal if terminated without cause?
6) Was the injured worker paid by the hour or by way of a salary per day, week or month for the work performed or rather a flat fee based upon the completion of the job?
7) Did the injured worker have any withholdings by the employer for Social Security, Medicare or State and Federal Taxes?
8) Did the employer render any W-2 forms to his workers or 1099 forms?
9) Did the injured worker receive any specialized training from the employer to perform any of the tasks the worker was employed to perform?
10) Did the injured worker have the independent authority to hire assistants on their own if they so chose to help accomplish the tasks at work or did the employer retain control over who was able to work on the job site and when?
11) Did the work preformed by the incurred worker have to be accomplished in a certain sequence or order set forth by the employer or did the injured worker have the ability to determine how he performed the job and in what sequence?
12) Did the injured worker perform services for more than one employer at the time or was the injured worker exclusively employed to perform services for the single employer? Did the injured worker have the ability to work for multiple employers at the time of the injury or not?
13) Was the services to be performed by the injured worker full time or party time?
14) Did the injured party have the right to control what, how and when the worker performed the services provided to the employer or did the employer have the right to control what how and when the services were to be provided?
Employers can and do maintain the right to control the time and manner in which their employees perform their work. An independent contract has the ability to set his or her own hours as to when they work and when they don’t. An Employer also typically provides the equipment, tools and materials for the job at hand whereas an independent contractor typically supplies their own. An employer also has the ability to hire and fire workers "at will" and can terminate an employee for any reason with or without cause. However, an independent contractor may have legal rights to sue an "employer" for breach of contract if the termination of the employment contract was without cause. The question of supervision on the job site is also an indication as to whether the injured worker is an employee or independent contractor.
There is no single indicator as to whether an injured party is actually an employee or an independent contractor, but the "right to control" test is typically the primary test that is employed in determining whether or not the injured party is entitled to workers compensation benefits or not in the event the worker is injured while working "on the job."
BOISE WORKERS COMPENSATION ATTORNEY ALAN MORTON HAS THE EXPERIENCE YOU NEED IN DEALING HANDLING YOUR WORKERS COMPENSATION CLAIM.
If you or a loved one are injured as the result of an industrial accident or an occupational disease, you should immediately consult with an experienced workers compensation trial attorney for an initial free consultation. Boise Workers Compensation Trial Attorney Alan Morton has over 34 years of experience in assisting injured workers preserve their legal rights and remedies for workers compensation. Mr. Morton is willing to provide you with a free initial consultation at his office or your home, workplace, hospital or any other convenient location. You can reach Mr Morton for an appointment by calling 208.344.5555 or toll free at 888.716.8021 or by via email online. There are strict notice requirements that need to be followed when handling workers compensation claims. Once incurred, you should contact an experienced workers compensation attorney immediately in order to preserve your legal rights and remedies.