You Might Be An Employee And Eligible For Worker's Compensation (Even If Your Boss Says You Aren't)

If you're an independent contractor, you're not covered by worker's compensation - which means that if you're injured on the job you don't have those benefits to help you get medical care or financially survive while you recover. However, the line between "independent contractor" and "employee" can sometimes be blurry. That means that you may actually be entitled to benefits, even if your employer doesn't think so. This is what you should know. 

Status Isn't Just Determined By The Tax Forms Your Receive

Sometimes employers will try purposefully misclassify an employee as an independent contractor so that they don't have to pay worker's compensation benefits in the event of an injury. Some employers simply have a poor understanding of the difference between an employee and an independent contractor because the court has to look at the total circumstances of the job - not just whether or not the employee receives a W-2 form or 1099.

The Amount Of Control Over Your Work Is Important

Independent contractors exercise a great deal of control over how they do their job and when. An employee doesn't. For example, if you're hired to entertain diners at a club, the management will generally give you a great deal of discretion over how you accomplish that goal. You wouldn't be required to use a specific comedy routine or magic act. You would also likely be responsible for providing your own stage props or equipment.

However, if you're hired to entertain children at a restaurant while wearing a "character costume" and you have a specific routine that you're supposed to run through each time you appear on the floor, it would be hard for management to say that you aren't an employee. The employer is not only providing you with your props, he or she is also exerting a great deal of authority over exactly how you do your job.

Other factors that the court will consider are:

  • The Right To Fire. Are there any contractual obligations between you and the company if the company decides it no longer wants your services? Could you be fired in the middle of your work or would the company have to pay out a contract?
  • The Method Of Payment. Are you paid hourly or by the job? Are you paid through tips? Do you have the right to negotiate your own tips or does management set the payment? 
  • The Exclusivity Of Employment. Most independent contractors can (and do) hire their services out to more than one entity at a time. An entertainer, for example, might perform on stage at a theater one night, and work at a club on weekends. Employees usually only work for a specific employer.
  • The Ongoing Nature Of Employment. When there is an expectation that you'll provide your services on an open-ended basis, that could indicate an employee relationship. Independent contractors are usually hired on a job-by-job basis only.

If you've been injured on the job, don't assume that you can't receive worker's compensation for your injuries just because your employer says that you are an independent contractor - especially if you feel more like an employee. Talk to an attorney, like Malone & Atchison, who specializes in worker's compensation claims instead.