Am I an Independent Contractor or an Employee? Why is it important? How do I know?

To be eligible to receive Workers’ Compensation benefits, you must be viewed or designated by law to be considered as an Employee.  If you are found to be an Independent Contractor, you will not be entitled to receive Workers’ Compensation benefits.

However, just because your employer calls you an Independent Contractor, it that does not necessarily mean that you are one under the law!  Despite their representation, you still may be able to collect Workers’ Compensation benefits!

In some circumstances, you may be found an Employee even if you have even signed an Independent Contractor agreement with that Employer.  The signing of such a document does not necessarily preclude you from seeking Workers’ Compensation benefits.  In sum, if you have sustained a work injury and believe that your employer may consider you an Independent Contractor, it is important that you immediately seek out legal advice.  An attorney will analyze your situation and weigh out your situation. Sometimes, it is not always clear cut as to whether you are an Employee versus an Independent Contractor.  Ultimately, the Workers’ Compensation Appeals Board will make a finding as to whether you are an employee.

When seeking legal advice, it is important that you gather up any evidence that you have that may be such pay stubs, checks, written agreements, and any writings you may have been provided by your Employer.  Also, any supplies or materials would be helpful as well. If you were provided clothing which has the Employer’s name on it, this would be important evidence to win your case.

One of the most important cases in this matter is the Supreme Court Case of S.G. Borello & Sons, Inc. vs. Department of Industrial Relations (1989) 48 Cal.3d 341. The Supreme Court dealt with developing a test to determine whether there is an employee/employer relationship.

As the Court indicated-

“[t]he principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.  “The existence of such right of control, and not the extent of its exercise, gives rise to the employer-employee relationship.   Numerous secondary factors, derived largely from the Restatement Second of Agency “(1) whether or not the worker is engaged in a distinct occupation or an independently established business; (2) whether the worker or the principal supplies the tools or instrumentalities used in the work, other than tools and instrumentalities customarily supplied by employees; (3) the method of payment, whether by time or by the job; (4) whether the work is part of the regular business of the principal; (5) whether the worker has a substantial investment in the business other than personal services; (6) whether the worker hires employees to assist him. [Citations.]”   Additional factors  are (a) whether the parties believe they are creating the relationship of employer-employee; and (b) the degree of permanence of the working relationship.

on objective tests.”

In sum, just because your employer considers you an Independent Contractor, their statement does not necessarily preclude you from claiming and obtaining workers’ compensation benefits.  It is important that you immediately seek legal advice to analyze your particular situation.  Each Independent Contractor analysis is unique.  Ultimately, the Workers’ Compensation Appeals Board has the power to find an Employer-Employee relationship and allow you to obtain workers’ compensation benefits.

Law Offices of Edward J. Singer

At the Law Offices of Edward J. Singer, we specialize in helping our clients with their workers’ compensation claims. With more than 20 years of expertise in defending workers’ rights, we are here to assist with any questions a person in Southern or Central California who receives workers’ compensation may have. We welcome anyone who needs assistance to contact us today concerning any workers’ comp questions or issues.


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