Can Independent Contractors (1099 Employees) Get Workers Comp?
Most employers will try to tell you that it’s common knowledge that Independent Contractors (1099 Employees) cannot collect Workers Comp – but that is not entirely true. The surprising answer is that under some circumstances an Independent Contractor (1099 Employee) CAN collect Workers Comp. So you see, it’s not as “black and white” as your employer may want to make it seem!
If an employee is TRULY an Independent Contractor under the legal definition, then his or her employer is not required to provide Workers Compensation insurance (and are also not liable for payments under unemployment insurance, disability insurance, or Social Security). HOWEVER, just because an employer calls you an Independent Contractor and gives you a 1099, there are some circumstances where you are still considered by the law to be an “employee” who is entitled to Workers Comp benefits.
In other words – it is not up to the employer to decide if you are an Independent Contractor! If you meet the legal definition of an actual “employee” you are entitled to Workers Compensation benefits – no matter what the employer “calls” you or what type of tax form they give you.
The Law – Not the Employer – Decides Who Is an Independent Contractor
Employers will often try to improperly classify their employees – calling then independent contractors – so that the employer does not have to pay payroll taxes, minimum wage or overtime, and/or give breaks, and/or provide workers’ compensation insurance.
However, the Employment Development Department (EDD), the Division of Labor Standards Enforcement (DLSE), the Franchise Tax Board (FTB), Division of Workers’ Compensation (DWC), and the Contractors State Licensing Board (CSLB), all have regulations or requirements concerning what constitutes an “employee” and what constitutes an “independent contractor.”
Keep in mind that since different laws may govern different situations, it is also possible that the same individual may be considered an employee for purposes of one law, and an independent contractor under another law.
In one common example, where a worker performs services that require them to be licensed, (or the worker performs services for a person who is required to obtain a license) the worker is typically considered to be an employee and not an independent contractor. The presumption is in favor of the employee, and the employer would have to rebut this (prove otherwise).
Similarly, in many cases waitresses, truck drivers, general laborers and gardeners will be told by their employer that they are Independent Contractors (1099 employees) – when in reality the Law considers the actual employees! Many restaurant workers, landscapers and truck drivers wrongly believe that they are mot eligible for Worker’s Compensation when, in fact, they are!
It is also important to understand that the existence of a written agreement stating that the employee is an independent contractor is NOT the determining factor. The courts will look behind any such agreement and “examine the facts” of the parties’ actual relationship to determine whether the worker is an employee or Independent Contractor.
An experienced Workers Compensation lawyer can researched and analyze your unique situation to determine if will be considered an employee (entitled to Workers Compensation insurance coverage) or an Independent Contractor (not entitled to Workers Compensation insurance coverage). So do not just take your employer’s word for it!
Filing a Workers Comp Claim with the UEBTF
If you were injured on the job and your employer illegally did not have insurance, you and/or your lawyer may also apply to the Uninsured Employers Benefits Trust Fund (UEBTF) for workers compensation benefits The Uninsured Employers Benefits Trust Fund (UEBTF) is a special fund that pays the claims of injured or ill employees who were injured or made ill while working for an illegally uninsured employer. However, UEBTF benefits will not be paid automatically. Filing a workers’ compensation claim with the UEBTF is a complicated process and the assistance of an experienced lawyer is highly recommended. Claims for UEBFT benefits are handled through local DWC (Division of Workers Compensation) district offices.
Our Long Beach Workers Comp Lawyers Can Help
If you feel you were wrongly classified as an Independent Contractor – and you wish to pursue Workers Compensation benefits – our experienced Workers Comp lawyers will offer you a free consultation to explore your legal options. You just may find out that you were not an Independent Contractor at all, and that you are entitled to apply for Workers Comp benefits, after all!