Got hurt on the job as an independent contractor?
Is it Possible to File a Workers Comp Claim? It’s Not as Cut and Dry as You Think…
The majority of independent contractors think that they have no rights following a workplace injury. They are simply told by their employer that they have no coverage.
But the truth is more complicated.
There are actually instances where independent contractors ARE able to file a workers comp claim. In fact, they may have even better choices.
Here’s what’s covered:
- The Difference Between Employees and Independent Contractors
- When Independent Contractors Can File a Workers Comp Claim
- The Misclassification Problem
- What to Do After a Workplace Injury
- Other Compensation Options
The Difference Between Employees and Independent Contractors
Prior to discussing workers comp, here’s a quick look at the legal definition of work status.
Employees and independent contractors are seen VERY differently under the law. This distinction determines if a worker is entitled to:
- Workers compensation insurance
- Unemployment insurance
- Overtime pay
- Health benefits
Here’s the thing:
Workers comp is closely related to employee status. If a company has treated someone as an independent contractor, they will normally not be covered under the regular workers comp system.
But classification isn’t always accurate.
Because a company mislabels an employee as an independent contractor does not mean they will be treated as one under the law. The substance of the work matters more than what is written on a pay stub. An attorney such as Tim Bartell can evaluate the situation and determine whether a worker has been misclassified or has recourse to file a workers comp claim.
Thankfully, worker’s compensation exists. The gig economy has made this harder than ever. According to recent statistics, 36% of the US workforce participates in the gig economy. Many gig workers think they have no rights… when they do have choices.
When Independent Contractors Can File a Workers Comp Claim
Now for the good stuff.
There are some instances where independent contractors are eligible to file a workers comp claim. Many aren’t aware of these circumstances, but they can mean the difference between having your medical bills covered or racking up debt.
You Were Misclassified
This is the most common scenario by far.
Companies misclassify workers as independent contractors constantly — whether accidentally or intentionally. Why would they do that? To save money. By classifying workers as contractors instead of employees, companies can lower labor costs by 40%.
A worker that has been misclassified could be eligible to file a workers comp claim even if their paystub says they can’t.
Here’s how courts typically decide if a worker is really an employee:
- Does the company control how the work is done?
- Do they set the hours?
- Do they provide tools and equipment?
- Is the work ongoing or part of the company’s main business?
If yes is the answer to most of these questions, that worker may be considered an employee for purposes of the law.
Your State Has Special Rules
Workers comp laws differ by state. Some states have extended coverage to certain independent contractors.
California mandates app-based transportation and delivery companies provide occupational accident insurance. Ride-share companies must provide workers comp coverage in Washington if drivers meet certain work-hour requirements.
You should look up your states rules…you might be amazed at what you learn.
The Company Carries Voluntary Coverage
Occasionally you will find businesses that voluntarily include their independent contractors in their workers comp policy. While it’s rare, some companies will do it — particularly if they’re trying to recruit the best contractors or work on a job site that requires all employees to have coverage.
The Misclassification Problem
A bit more about misclassification.
Misclassification is one of the largest problems that contractors face. The gig economy is only making it worse.
Misclassified workers lose out on a lot:
- Workers comp protection
- Unemployment insurance
- Overtime pay
- Health and retirement benefits
Big money is at stake. The average construction worker who is misclassified as a contractor would lose up to $19,526 yearly in wages and benefits if they were classified as employees.
But safety could be an even bigger problem. Researchers surveyed food delivery gig workers in NYC and found that 21.9% reported being injured on the job. Injured workers had to pay for medical bills and lost wages themselves.
What to Do After a Workplace Injury
Were Injured as an Independent Contractor? Here’s What to Do.
Get Medical Attention
This is the most important step. Health comes first.
Seek medical attention from a doctor or emergency room. Keep records of all medical documents, receipts, and notes on how the injury occurred.
Report the Injury
Tell the company about the injury, even if workers comp doesn’t seem to apply.
Get it in writing and keep a copy. Email is preferable as it automatically provides a paper trail.
Don’t Sign Anything Yet
This is huge.
Often, insurance companies will want injured workers to sign away their rights immediately following the accident. Don’t sign anything. They may try to “buy you off” with a small amount of money.
Wait until after talking to a lawyer before signing anything.
Talk to a Workers Comp Attorney
Contact a competent workers comp lawyer to assess your situation. They can tell you definitively if you have a case. They will consider the nature of the work arrangement, applicable state laws, proper classification of the worker and any other sources of compensation.
Most attorneys offer free consultations, so it’s worth picking up the phone.
Other Compensation Options
Even if you can’t file a workers comp claim, there may be other sources of compensation available to you:
Personal injury lawsuit: The worker can sue the negligent party who caused the injury. Generally much more money is paid out in personal injury lawsuits than through workers comp.
Claims against third parties: If someone else (for example, the manufacturer of defective equipment) was at least partially responsible for your injury you may have a claim against that party.
Disability insurance: Private disability insurance could cover lost wages during recovery.
Occupational accident insurance: Some app-based companies provide this in certain states.
The Bottom Line
You can file for workers comp as an independent contractor — it’s not impossible. It’s just that the system is designed to benefit regular, old fashioned employees.
If you’ve been injured while working as an independent contractor:
- Check whether you were correctly classified
- Look into your state’s rules
- Document everything related to the injury
- Speak with a qualified workers comp attorney
Speed is essential. Don’t delay, there are deadlines for filing a workers comp claim and your ability to recover fair compensation may be forever destroyed if you wait too long.
