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Many working men and women, particularly those in construction and demolition, and who work with scaffolds--and many employers, contractors and subcontractors, are often confused about the difference between an employee and an independent contractor.

The most important thing to remember is that an employer and his employee cannot on their own designate the employee an independent contractor and rely on that definition to be legally enforceable.

Independent contactor is a legal determination--only a judge at the Workers' Compensation Board can decide with a worker is, legally speaking, an independent contractor or not. Generally, New York frowns on designating workers as independent contractors, and in the construction industry, The Construction Industry Fair Play Act, which governs the relationship between construction and demolition workers, general contractors, and subcontractors, makes it that much harder to support an argument that a worker is, in fact, an independent contractor.

In making its determination, the Workers' Compensation Board looks at a number of different factors involving the employment. The central issue is whether the worker's job allowed him to operate as a sort of highly-qualified specialist in his field, who was permitted to do his work free from supervision.

An employer who contracts with a true independent contractor does not have to carry a workers' compensation policy for  that worker, and an independent contractor is not entitled to collect workers' compensation from that employer. However, if the Board determines that a worker was not an independent contractor, he is entitled to collect benefits--and a contractor/employer who has misclassified the employee may be liable for all benefits awarded to him--and also substantial penalties.

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