While the public is repeatedly being informed about Workers’ Compensation “Worker Fraud,” “Employer Fraud” may also be said to be running rampant.
More and more frequently, there is the misclassification of “employees” as “independent contractors.” This maneuver by Employers attempts to reduce Employers’ costs, including Workers’ Compensation (workers’ comp) health and other insurance premiums, and may also leave injured or ill employees without medical treatment and income replacement, which can negatively affect all workers. Common examples include under reporting payroll, not having employees on the payroll and not providing a workers’ compensation claim form upon notification of an employee’s injury for an injured worker.
The seminal case dealing with whether an individual is an independent contractor or an employee is the 1989 California Supreme Court case of S. G. Borello & Sons v. Dept. of Industrial Relations (Borello). The citation for this case is 48 Cal. 3d 341, 256 Cal. Rptr. 543.
In Borello, the employers were agricultural growers. The growers claimed that migrant harvesters were independent contractors based on a written agreement the growers had the harvesters sign which stated the harvesters were independent contractors. In finding the harvesters were employees notwithstanding the written agreement, the Supreme Court analyzed the facts surrounding the work performed by the harvesters and determined that evidence showed the growers exercised control over the harvesters and the whole operation, that the harvesters had no unique skills and that on balance all the evidence supported the conclusion the harvesters were not independent contractors.
How to determine if you are an independent contractor or an employee
Under Borello, and cases following some of the factors used by Workers’ Compensation Courts and other forums to determine whether a worker is an independent contractor as opposed to an employee are:
Control of worker by employer vs. Unique occupation of worker
Direction of tasks to worker vs. worker discretion in performing tasks
Whether unique skills are required for work
Employer supplying work material vs. worker bringing his own
Length of Employment
Method of payment (are taxes withheld, piece work, etc)
Employer providing regular work hours to worker
What should I do If my employer classified me as an independent worker?
If you are injured and advised by the person or entity that hired you that you are not qualified to receive workers’ compensation benefits, because you are an independent contractor, you should certainly consult with an attorney. This is a complicated legal question that likely will require gathering the evidence and presenting that evidence to a workers’ compensation judge at the Workers’ Compensation Appeals Board. The determination of employee status under California law is a fact specific inquiry which can at times be a close call. It is therefore extremely important not to overlook evidence which could favor the finding of employment and an award of medical and wage replacement benefits.
Workers’ Compensation Attorneys in Los Angeles
If you believe your employer may have engaged in some type of fraud or other misconduct which has resulted in injury or illness to you, or a denial of Worker’s Compensation benefits to compensate you for an injury arising from your work, please contact the Law Offices of Roland, Pennington and Trodden for a free consultation. You may contact us by email, phone or by U.S. Mail. Should you decide to consider retaining our office to represent you on your legal matter, you will be offered an appointment with one of the three attorneys at our office located on Hollywood Boulevard between La Brea and Highland in the heart of Hollywood.