Non-Subscriber Case FAQ: Employee or Independent Contractor?

By Michael GrossmanAugust 10, 2015Reading Time: 3 minutes

I can't tell you how many times I've gotten calls from injured workers (whose employers are non-subscriber to workers' comp) who tell me that their bosses are denying any compensation because they're "independent contractors." In this blogpost, I'm going to break down exactly what an independent contractor actually is in the eyes of the law, how it benefits an employer to miscategorize an employee as a contractor, and what the legal implications are.

What's the difference between an independent contractor and an employee?

Let's say that I am a real estate investor who owns an apartment complex, and I hire someone to work for the complex as a full-time painter. I direct that person, tell them what to paint and what color paint to use. I supply all of their materials, tell them when to show up and more or less how to do their job. That person is my employee. Now, let's say that I didn't want to go through all that trouble, so I hire a painting company to come in and paint apartments on a one-time basis. They have their own workers, they buy all of their own materials and set their own schedule. Yes, they work for me, but they're handling just about everything else on their own as their own, independent company, so they'd be categorized as an independent contractor.

What's the difference here? Control. Contractors more or less operate on their own, while employees are told what to do. The difference between the two seems to be pretty clear cut, but can often be confusing. Sometimes, employers will take advantage of this for their own gain.

Employers will sometimes call an employee an independent contractor after you've been injured.
To your employer, you're an employee. UNTIL you've been injured, that is.

How does it benefit an employer to miscategorize an employee?

If you work as an employee of a company, why would that company want to miscategorize you as an independent contractor? Well, the short answer is that the more control someone exercises over you, the greater their responsibilities are to ensure your safety. The level of responsibility a company owes an independent contractor is less than the responsibility it has to its own employees. Think of it like this: Your child and one of their friends are playing in your backyard. Obviously, you are responsible for what happens to both children that are under your supervision. But you're not responsible for making sure the other child has clean clothes at home, has had all their vaccinations, is getting a good Christian upbringing etc. That's not your job with respect to that other child. It is your responsibility with respect to your own kid, though. The point is, you still owe the other child a certain duty of care, but it's not as high as what you owe your own child. An employer's relationship to an employee as opposed to an independent contractor is similar in that they must go above and beyond to keep an employee safe, but they really only have to do the bare minimum to create a safe environment for independent contractors.

When looked at like this, it's in the company's best interest to say that you're not their employee.

What are the legal implications?

If you're an employee who suffered an injury because of negligence on the part of your employer, you have a pretty good case. However, if you're an independent contractor who was hurt on the job, your case is much weaker. Why is that? Well, again, it all goes back to control and the responsibilities they owe you as it relates to that control. As a contractor, you're really being left to your own devices, and aren't being directly supervised by the employer. They might argue that, had you been an employee and had they been there to supervise you, the accident wouldn't have happened in the first place. But because they weren't given that degree of control, they shouldn't be held responsible for the accident.

The problem is that many workers are definitely employees, yet, once they're injured, their employers suddenly backpedal and say, "You're a contractor. Not my problem."

The way a work injury lawyer deals with this is use evidence pertaining to your relationship with your employer to establish definitely that you are in fact an employee. What kind of evidence? Really, it's anything that proves that they were in control of you and treated you like an employee. By furnishing such evidence, your attorney will hope to establish what is called the "employer-employee relationship." With that status firmly cemented, your employer will be on the hook for all the compensation they should have paid you for from the beginning.

This may all seem very technical, but our firm deals with these matters on a daily basis. Just call us today at 1-855-326-0000 and we'll be happy to listen to your story and devise a plan to ensure that you get fair compensation.