Am I an Employee or an Independent Contractor?

I get calls from people who have been injured on the job who are confused about their situation because, after their injury, their employers tell them that they are not covered by workers’ compensation insurance because they are considered to be an independent contractor. Sadly, many of them are caught off guard by this statement and assume that they have no options other than to deal with this injury on their own.  Mis-classification of employees as independent contractors is a major problem in the workers’ compensation system. This is usually done by employers who want to save money on insurance premiums.

In determining whether an individual is an employ or an independent contractor, the Virginia Workers’ Compensation Commission looks at several factors, including: selection and engagement of the employee, payment of wages, power of dismissal, and the power of control over the employee’s actions. The most important factor, however, is the power to control the individual’s actions. Moreover, the right of control includes not only the power to specify the result to be attained but the power to control the means and methods by which the result is to be accomplished. An employer/employee relationship exists if the party for whom the work is to be done has the power to direct the means and methods by which the other does the work. If the latter is free to adopt such means and methods as he chooses to accomplish the result, he is not an employee but and independent contractor.

So what’s the big deal? The big deal is, if you are an employee, in most scenarios you SHOULD be covered by workers’ compensation insurance BUT if you are an independent contractor, you will NOT be covered by the company that hired you to do the project and would only be able to get workers’ compensation benefits if you have taken out your own workers’ compensation insurance policy on yourself.

If you would like more information on the Virginia workers’ compensation system order my book, “The Ultimate Guide to Workers’ Compensation in Virginia,” or call our office today (804) 755-7755.

~Author

Michele Lewane, Esq.