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Contractor or Employee? What Claims Are Available When Injured?


by Claudine A. Cloutier

As noted in previous entries, who was at fault and how severely someone is injured are not always what determines the remedies that are available to an injured worker.  Frequently, the employment status of the worker will be the determinative factor.

In many industries such as construction trades, designers, sales, domestic services, it is common for workers to work for themselves on some projects and for others on other projects.  In such instances, it may be difficult to determine employment status.

To illustrate the point: the painter you hire to paint your house is probably an independent contractor – but what about the buddy he brings along to help?  Is that person his employee or another independent contractor?  May either of them be considered your employees?  What if you also own a painting company, the painter uses  your equipment, you pay him by the hour, and he works only for you?  Is he your employee or an independent contractor?  Issuing a 1099 instead of a W2 may not make a difference.

As Attorney DeMello recently noted, employee leasing arrangements may pose thorny issues regarding liability and coverage.  Similarly, whether a worker is considered an employee or independent contractor may change the landscape of potential remedies.

An employer must provide workers’ compensation insurance to its employees, but is then immune from a negligence lawsuit by an injured employee.  The workers’ compensation scheme provides limited remedies, but fault is irrelevant.  On the other hand, an independent contractor is not covered by workers’ compensation, but may file a negligence claim against the hiring entity where larger recoveries for damages are possible.

In determining whether one is an employee or an independent contractor, one must weigh all the circumstances in the contract of hire.  Massachusetts courts have usually looked to the right of control, which encompasses such issues as:

the method and manner of payments;

whether the worker used the employer’s equipment;

whether there was an absolute right to terminate the relationship;

whether fringe benefits were being paid;

whether the individual performed services exclusively for one company; and

whether the work was part of the employer’s regular business.

If a worker is injured or killed on the job and the employment relationship may be construed as one of employer – employee, the employee is entitled to workers’ compensation benefits.  If the employer has failed to purchase insurance coverage, the Workers’ Compensation Trust Fund will pay benefits to the injured worker and / or his dependents.

If an employer has failed to provide workers compensation coverage, the employee may also file a lawsuit, in which the employer will be held strictly liable for the employee’s tort damages.  Moreover, a corporate officer responsible for obtaining workers compensation coverage who negligently fails to do so, may be held liable for the amount which the employee would have collected through such coverage.  Usually, the most challenging aspect of such claims is translating a judgment into a net monetary recovery for the injured worker.

All options should be considered and discussed between client and attorney.  Keches Law Group is well-suited to pursue the best means of recovery for injured workers.



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