Every year, hundreds of clients come to LegalMatch.com seeking attorneys for on the job construction injuries. In the past 3 years, the following are the top ten construction jobs that complained of on-site injuries (in order of frequency):
- Heavy Equipment Operators
- Truck Drivers
- Crane Operators
In perfect world, when someone is injured at work they are compensated through workers compensation. In a perfect world they get better, come back to work and stay on their job.
As you might have guessed this is not a perfect world. An employee often can’t do the same job they did before they were injured, and the employer lets them go. Sometimes even qualifying for workers compensation is an issue.
How do construction firms get around giving their employees benefits such as workers compensation and other protections? Simple: by calling them “independent contractors.” Although it is illegal to misclassify an employee as an independent contractor, many businesses do it anyway because of the significantly lower cost of hiring them. Employers do not need to pay any benefits and owe no real obligations to independent contractors other than payment for their services.
These incentives lead many employers to falsely call their employees independent contractors. Thus when someone is injured, they are often denied workers compensation or any guarantee of a job when they recover from their injury. Although the construction industry is one area where there are many legitimate independent contractors, often these contractors will hire others and misclassify them as independent contractors themselves, when in reality there is nothing “independent” about how they are doing their jobs.
Misclassification can subject an employer to fines, extra taxes, and sometimes criminal punishment. In 2002, for instance, Fed Ex was ordered to pay over $300 million in penalties for misclassifying its drivers as independent contractors rather than employees, and over $27 million to its drivers for lost wages and benefits
There is no law defining who is and is not an independent contractor. Instead, courts will look to a variety of factors in determining what role someone plays. Employees can ask the IRS to look into their status as independent contractors, and can also file a law suit either with the state or the federal government against their employer for lost benefits or wages.
While still a Senator, Barack Obama introduced a bill allowing employees to go through an arbitration process with their employer if they felt they were misclassified as an independent contractor. Currently nothing similar exists for employees or independent contractors other than the options mentioned above. Perhaps now that he is President (and once this whole little “Depression” thing blows over) people may soon get a much needed means of determining their status.