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Am I an Employee or Independent Contractor?

You're with a crew painting a house and you fall from a ladder breaking your ankle. When you tell your boss, he responds,”But you're not my employee. You’re an independent contractor. You get a 1099 and not a W2; no workers comp.”

Is that true? Are you going to have to pay for your own medical bills? Maybe not.

An Employee by Any Other Name

Workers compensation provides medical care and a percentage of lost wages for “employees”. This is coverage every company is supposed to have. If you are an 'independent contractor” you are technically working for yourself, not for an “Employer”, and you probably don't carry your own workers compensation coverage. Even if you did, it’s unlikely to cover your own injuries.

Frequently, though, Employers try to cut costs by saying that workers are independent contractors as opposed to employees. At the end of the year, they may hand out a 1099 rather than a W2. There has been no tax withholding, and in theory, the supposed independent contractor is to file and pay his or her own taxes as a separate business on a “Schedule C”. Usually, this is a sham.

Calling workers independent contractors does not make them so.

Examples Along a Sliding Scale

Whether someone is an employee or an independent contractor depends on the facts of a particular situation. For example, if a general contractor in charge of building a home engages a separate company, like Zappo Electricians or SCUBA Plumbers, those are independent contractors. They are separately established businesses who perform their work in the manner they choose using their professional expertise. They arrive in their own business trucks with their own equipment and work within their contractual terms but not under the direct eye of the General Contractor.

On the other hand, a drywall installer whose hours are set by the Boss, whose travel to and from a job site provided by the Boss, whose work clothes say “Boss's Drywall Perfection”, and whose tools are supplied by the Boss, is an employee. This is true even if the Boss is saying you’re an independent contractor.

But these are fairly clear examples along a sliding scale test, and each case must be individually analyzed.

Your Lawyer Must Know What to Ask

In Massachusetts, there is a statutory definition of employee and independent contractor within the umbrella of the “Wage and Hour” laws. But well before that law existed, workers compensation law had developed a test for determining the true nature of the worker's status. Being paid with a 1099 is a factor, but you need to consider more than that. A salesperson at a desk from 9 to 5 is likely an employee despite a commission based income and a 1099.

The workers comp. Insurance companies will want to go along with the employer's scheme in order to deny benefits. At Marcotte Law Firm we have faced these issues countless times. We know what to look for – work schedule, degree of supervision, uniforms, provision of tools and equipment, nature of the individual's work in the context of the Payor's business – and have prevailed time and time again at securing the injured worker's benefits.

If you have been hurt and told you are not eligible for workers comp, don't believe it. Call us for a free, no obligation consultation.

Client Reviews
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Marcotte Law firm has since handled a few other things for me not accident related. My experience continues to be fantastic. Perhaps their motto could be simply "No problem. I'll take care of it" because that's exactly what they do. Marguerite Riley
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This team is of the utmost prestigious gentlemen I've come across! They handled my son's case as if it were their only. I recommend Marcottte Law Firm to anyone who is in need of an attorney. Robert Vogel
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Mr. Marcotte and his staff are courteous and respectful, I've known Mr. Marcotte for over 25 years and I recommend him and his colleagues as the best lawyers in Lowell and Massachusetts area . God Bless them all. Minerva Martinez
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Ken was very compassionate, professional and knowledgeable. He kept me informed throughout my case so I felt prepared and comfortable each time I had to appear in court. I would recommend Marcotte Law Firm without hesitation. Ronda Johnson