Off The Record – Workers’ Comp – Employee or Independent Contractor

Video Transcript

Hi, my name is Craig Rosasco, Senior Partner at the law firm of Turley Redmon & Rosasco. Today we’re gonna be discussing the classification of employees and whether or not the law looks at you as an employee, or an independent contractor. Big difference, so grab a pen and listen up.

So what we typically see in court is normally 90% of our clients are employees, and what makes them employees, what’s called your W-2, meaning that your employer directs and controls your work. To go back to Latin in seventh grade, my mother would be so proud, the Latin concept of respondeat superior, otherwise known as let the master answer. So your employer answers, are you an employee? Are you an independent contractor? There’s a lot of employers out there that wanna make it an independent contractor. Why do they do that? Because they don’t have to pay FICA taxes to the federal government. They just shuffle you a 1099. They don’t become tax liable for you. And they tell everybody, “He’s not an employee,” then you get hurt on the job. And they go, “Wait a minute, he’s not an employee he’s an independent contractor.” And independent contractors are not covered under the law.

Who do we typically see as independent contractors? Real Estate Agents. See it all the time. They work for themselves, they work out of their cars, they expense all their expenses through their tax returns, by filing as an individual, corporation or something like that. So we then get to court, and it’s the court’s job to determine is this person an employee? Or is this person an independent contractor?

Once again, a lot of employers out there playing the game where, “Oh, no, they’re independent contractors.” I know better. What determines whether or not you’re an employee or an independent contractor? It doesn’t matter if you’re paid cash or check. That is irrelevant. What they’re gonna look at is, who got the work? Who directed the work? Did you work hourly? At the end of the day, in order to be an independent contractor, did you use your own tools? Did you get the job? Did the employer come to you and say, “Hey, Mike, here’s a job for you. I’ll give you $600 to do the job. Do it when you get a minute, and then get back to me and I’ll pay for it.”

That person went out with their own tools on their own time schedule and performed the work. That’s probably an independent contractor. But 90% of the time these people are employees. The employer gets the work. They say, “Hey, Mike, show up at 9:00 on Monday morning, go to this job site with your tools that came out of my truck, and do this job and then come back. I’ll pay you hourly.” At the end of the day, the employer gets cute. And they say, “All right, listen, I won’t take taxes out of your check. We’ll make you a 1099.” That doesn’t mean that they escape the wrath of the workers’ compensation law.

If you’ve encountered a situation like that, where you’ve been hurt on the job, and your employer has said, “You’re not eligible for workers compensation because you’re “an independent contractor,” contact an attorney immediately. Get the right answers. It’s all factual. And we’ll get to the bottom of it as to whether or not you’re entitled to workers’ compensation benefits underneath the workers’ compensation law. Look to hear from you soon. Take care.