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Am I an employee or independent contractor?

You may be in pain and feeling financial strain over medical bills or even stress about returning to work after sustaining a work injury. However, the process can complicate further if your employer and their insurer claim you are not an employee when you thought you were.

From an insurance perspective, an employee usually falls under day labor, leased employees, borrowed employees, part-time employees, unpaid volunteers (which includes family) and most subcontractors (some exclusions apply). Employers that are a for-profit business must cover employees for injuries under their workers' compensation insurance. 

What makes me an employee?

A workers' compensation judge will determine if you are an employee for workers' compensation insurance purposes at a hearing in the event your employer's insurance company has denied you benefits. However, in general, the following are factors that are considered when determining if someone, like you, is an employee:

1. Right to control: Typically, a company will consider you an employee if they control how and when you work. This includes setting specific working hours for you.

2. Character of work: If you perform work that is consistent with the business' primary focus, you are likely an employee. For example, if you hang drywall for a New York drywall company, the work you do for them would classify you as their employee. However, if the company is a retailer who hires you to do plumbing work, you would be an independent contractor to that business.

3. Method of payment: You are an employee if the company you work for pays you wages on a regular basis, withholds taxes and provides other benefits such as health insurance or retirement plans.

4. Furnishing equipment: A company will also classify you as an employee if they provide the equipment or materials for you to perform your job.

5. Right to hire or fire: When you perform work for a company who supplies you with the equipment or materials to complete the job you are generally their employee.

While you do not need to meet all five factors above, a company would need to prove all three of the following to prove you are an independent contractor:

  • You are not under the company's control or direction to perform the work.
  • You are not performing work that is consistent with the company's usual course of business.
  • You are working as an independent business.

What happens if the insurer denies my claim?

Employees are entitled to receive workers' compensation benefits when they suffer a work injury. Workers' compensation insurers can complicate matters when construction work is involved because there are a variety of employees and contractors performing work.

If the insurance company denies your claim, speak to a qualified New York attorney experienced with workers' compensation claims. An attorney will be able to provide you with detailed information and guide you through the process so you receive the maximum benefits you are entitled to.

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