What happens if my employer inaccurately claims I’m an independent contractor?

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In Louisiana, most employers are protected by workers' compensation law. However, if you are employed as an independent contractor, you are not entitled to workers' compensation benefits.

The law does not protect independent contractors because many of them are self-employed small business owners who work for several different businesses at once. Consequently, some companies intentionally misclassify workers to avoid paying legally required benefits, and it’s become a growing problem in recent years. Misclassified as a contractor

Difference Between an Employee and an Independent Contractor

The most obvious difference between an independent contractor and an employee is that an independent contractor does not have taxes taken out of his paycheck and has no access to employer-provided benefits such as retirement plans or health insurance. However, a business can't decide on its own that you are an independent contractor. This is a legal term that has a specific definition based on the nature of your relationship.

You are likely an employee if:

  • You have a supervisor who decides when, where, and how you must perform your work.
  • You are provided with the tools and supplies necessary to do your work.
  • You are provided with training to help you perform your job in a specific way.
  • You perform tasks that are a key part of the business, such as being a cook in a restaurant.
  • You are evaluated based on how your work is performed.
  • You receive a fixed hourly rate or salary for your work.
  • Your work is performed on an ongoing basis.
  • You have an exclusive relationship with one business.

You are likely an independent contractor if:

  • You work with minimal supervision.
  • You are expected to provide your own tools and supplies.
  • Training is not provided because it is assumed that you either have the necessary skills to do your job or will independently seek out any necessary training.
  • Your tasks are not a key part of the core business mission.
  • Your performance is measured solely by the quality of your work.
  • Your payments are based on your performance, such as being paid a commission for each product sold.
  • You were hired for a particular task or project that is temporary in nature.
  • You regularly work with more than one business at a time.

Proving Misclassification

Generally, it is assumed that workers are employees unless there is evidence to suggest otherwise. If your employer is trying to inaccurately classify you as an independent contractor to deny access to workers' compensation benefits, you will need to provide any documentation you can find to establish three key elements:

  • Financial control. Your employer maintains control over how you are paid and the purchasing of resources necessary to do your job.
  • Behavioral control. Your employer controls when you work and how you do your job.
  • Nature of relationship. Your relationship is ongoing, and the work you perform is a key part of your employer's business.

Evidence relating to financial control, behavioral control, and the nature of your relationship is looked at as a whole. No one factor is considered more important than the others in determining if you are an employee or an independent contractor.

The Louisiana Workforce Commission has a task force that targets employers who misclassify workers: GAME ON. This acronym stands for Government Against Misclassified Employees Operational Network. Targeted industries include construction, health care, hospitality, personal services, and staffing companies, but all employers who willfully misclassify workers can be fined $1,000 per offense in addition to being forced to provide misclassified workers with their legally required benefits. Employers who misclassify large numbers of employees also risk imprisonment.

The Value of Legal Representation

Although contested minor work related injuries can often be handled without an experienced workers' compensation attorney, any case involving misclassification will require legal representation to protect your rights. Without someone to advocate for your needs, you may end up responsible for your own medical expenses and lost wages.

The legal team at Neblett, Beard & Arsenault is committed to maximizing the workers' comp benefits of Louisiana residents who've been hurt on the job. Contact us online or call us directly at 318.541.8188 to schedule a free, no-obligation case review. Appointments are available at one of six locations throughout the state.

 

Edward E. Roberts, III
Attorney Edward "Ted" Roberts helps victims injured at work throughout the state of Louisiana.