How Employee Misclassification Can Affect Your Workers’ Compensation Claim

Workers’ compensation is intended to make it easier for an injured employee to get the compensation they need most–medical care and replacement income. An employee seeking workers’ compensation doesn’t have to prove that the employer, or anyone else, was negligent. That makes compensation available to more workers and potentially reduces conflict between the employee and employer.

However, workers’ compensation benefits are only available to employees. That makes sense when workers are properly classified. Unfortunately, many are not. Misclassifying an employee as a contractor creates a lot of problems, ranging from loss of income for the worker to the employer not paying into Social Security to the worker not being eligible for unemployment compensation. One of the most serious is obstacles to collecting workers’ compensation.

An Experienced Workers’ Compensation Lawyer Can Help

If your employer has misclassified you as an independent contractor, you won’t be eligible for workers’ compensation on paper. But misclassifying employees is illegal under both state and federal law. If you’ve been injured at work and you believe or have been told you can’t file a workers’ comp claim because you are a contractor, you owe it to yourself to check with an experienced local workman’s comp attorney. If your workers’ comp lawyer can prove that you were misclassified, you may still be able to collect workers’ comp benefits. You may also be entitled to other compensation.

What is Employee Misclassification?

Employee misclassification happens when an employer treats a worker who is legally considered an employee as an independent contractor. As a contractor, the worker isn’t entitled to employee benefits and doesn’t get the benefit of protections mandated by law, such as workers’ compensation and unemployment insurance. The company doesn’t pay payroll taxes, meaning that there is typically no withholding and also that the full burden of FICA taxes falls on the worker. 

Misclassification costs the average full-time worker thousands of dollars each year. In some industries, the average loss is more than $10,000 annually.

How Common is Worker Misclassification?

Millions of U.S. workers are believed to be misclassified, with much higher rates within certain industries. For example, one study concluded that more than two million construction workers in the U.S. were misclassified. Another determined that more than 15% of construction workers in the state of Florida were wrongly classified as independent contractors. That’s especially problematic because the construction industry has a high rate of on-the-job injuries, and those injuries can often be severe and long-lasting.

Some other types of workers who are commonly misclassified in Florida include: 

• Truck drivers
• Landscapers
• Customer service representatives
• Retail sales associates
• Security guards
• Janitors and housekeepers
• Home health aides
• Manicurists and pedicurists

Of course, this is just a partial list of some of the positions most commonly affected by misclassification. Virtually any role in any type of company may be misclassified. If you’ve been injured on the job and you are classified as an independent contractor, you should check with a workers’ compensation lawyer in Jacksonville before you take any other action. If you are misclassified, you may be entitled to workers’ compensation benefits.

Proving Misclassification for Workers’ Compensation 

If you believe you have been misclassified and you have been injured at work or while performing job duties, your Jacksonville workers’ compensation lawyer will have to prove that you are legally an employee. 

How to Prove Misclassification

The exact evidence required to show that you are a misclassified employee will depend on the specifics of your job and your relationship with the employer. The key factors considered in Florida are: 

1. The extent of control the company exerts over the worker, such as when and how the work will be performed. In a true contracting relationship, the focus is typically on the end product or result, not specific processes. 
2. Whether the worker is engaged in a business distinct from the employer’s business. For example, a bookkeeper who provides services to multiple small businesses will likely be properly classified as an independent contractor, while a housekeeper working for a housekeeping service and serving only the company’s clients likely will not.
3. Whether the work is typically performed under supervision or independently.
4. The level of skill required to perform the services. A highly-skilled expert is much more likely to be properly classified as an independent contractor than a laborer.
5. Who supplies tools and equipment. An independent contractor is typically expected to provide their own equipment and supplies, while an employee typically uses the employer’s tools and supplies. A worker who performs their job at an employer-provided workstation using an employer-provided telephone and computer is unlikely to be considered an independent contractor.
6. Duration of employment. The longer-term the relationship is, the more likely it is to be considered an employment relationship.
7. How the worker is paid. Usually, contractors are paid by the project, while employees are typically paid hourly.
8. Whether the work is part of the regular business of the company. For example, a restaurant hiring a cook as a contractor would likely be suspect, while the same restaurant might hire a web developer to create a website for the business on a contract basis.
9. Expectations of the parties. A written agreement that the arrangement is a contracting relationship will be honored if the actions and realities associated with performance of the work are consistent with that agreement, but may be disregarded if the company acts as an employer.
10. Whether the employer is a business or individual. Someone working for an individual is more likely to be properly classified as a contractor. 

Of course, no one element determines whether or not the employee is misclassified. Your workers’ compensation lawyer will need to assess all relevant factors and assemble evidence to show that you are a misclassified employee.

Talk to a Workman’s Comp Attorney Today

If you are having trouble with a workers’ compensation claim because you may be a misclassified employee or for any other reason, you should speak with an experienced workers’ compensation lawyer in Jacksonville right away. To learn more about how the injury attorneys at Harrell & Harrell can help you pursue fair compensation after a work injury, call (904) 251-1111 or fill out our contact form.