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Are Independent Contractors Able to File Workers’ Compensation Claims?

clipboard with agreement for independent contractorAll California employers must purchase workers’ compensation coverage for their employees. Independent contractors do not qualify for benefits, no matter how severe the injury.

However, it is possible your employer misclassified you as an independent contractor. Employers often do this to avoid having to pay for workers’ compensation and other benefits afforded to their employees.

Below, learn more about how employees could be misclassified as independent contractors. If you were injured on the job and your employer said you were not eligible for benefits because of your employment status, contact one of our licensed Bakersfield workers’ compensation lawyers for a free consultation.

What is the Difference Between an Independent Contractor and an Employee?

An employee is someone who works for someone else under an oral or written contract. The employer directs the employee’s work, sets the schedule and provides materials the employee needs to complete his or her work.

An independent contractor is someone who performs a specific task for an agreed-upon fee. The employer is not in control of how the work is performed. That means the contractor is in control of the safety of the work. That is part of the reason independent contractors are not covered by workers’ compensation.

There are many factors our attorneys may consider regarding your status as an independent contractor, such as:

  • Whether your work requires a special skill
  • The length of time you are providing your services to the employer
  • Whether your work is part of the employer’s regular business
  • Whether you and/or the employer believe an employer-employee relationship is being created
  • If the job you are doing is regularly done by employees or independent contractors
  • How you are being paid

ABC Test for Workers and Independent Contractors

In September 2019, California’s governor signed a bill into law on the employment status of workers who employers claim are independent contractors. According to the test created by this law, a worker can be considered an independent contractor if the following things are all true:

  • You are free from control and direction of the employer, both in the contract and during the course of your work. Generally, if your employer has the same type of control over you as other employees, you are likely an employee.
  • You perform work out of the usual course of your employer’s business. For example, if a store hires an electrician or plumber, those people are independent contractors. If a manufacturing company hires someone on a regular basis to work on something at home, that person is likely considered an independent contractor.
  • You are often engaged in an independently established trade, occupation or business that is of the same nature as the work being performed. If your work relies on just one employer, you may not be an independent contractor.

California also has something called the Borello test, which is used in certain situations to determine when certain workers are employees or independent contractors. The Borello test examines multiple factors, such as:

  • Whether the worker or employer supplies instruments, tools and a place for the worker to do the job
  • Whether the work being done is usually done under the direction of the employer or some type of specialist without being supervised
  • Whether the employer has a right to fire the person at will

Need Help with Your Workers’ Comp Claim? Call Today

It can be very difficult to determine if you may have been misclassified as an independent contractor on your own. The licensed attorneys at Berry, Smith & Bartell have extensive knowledge about California’s workers’ compensation system and when workers should be classified as employees.

We offer a free consultation to discuss your situation. You are under no obligation to hire us if we find you have a case. There is no risk to you in meeting with us to discuss your work and your employer’s control of your on-the-job activities.

The lawyers at our firm have more than 130 years of combined experience helping work injury victims obtain compensation.    

For a free case evaluation with Berry, Smith & Bartell, a Professional Law Corporation call 1-800-848-6288 today!

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