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What classifies workers as "employees" for workers' compensation?

There are situations at certain jobs in New York in which it is not clear that a worker is classified as an "employee" and therefore eligible for workers' compensation. Oftentimes, this is linked to people working as "contractors." Knowing what factors are used to determine whether a worker is an employee under the workers' compensation law is imperative when there is an injury and the chance to get benefits is in question.

The employer's right to control over the worker is key. If the employer controls how the work is done, it is indicative that the work is done by an employee instead of a contractor. If a worker who performs the labor is in control of the time and way it is done, it might show that the person is an independent contractor. An independent contractor will work with his or her operating permit, under contract or authority. If the character of the work being done is that same as the employer and it is consistent with work done at the job, the worker can be considered an employee. If the work is different, the worker could be viewed as an independent contractor.

The way in which the person is paid is critical. Employees are paid at a certain time with various withholdings for taxes and other benefits. The tax form is irrelevant to determine a worker's status. If the worker is paid cash, it is generally an indicator that he or she is an employee. If the payment is made for the work in total, this is evidence of an independent contractor. If the business provides equipment or materials to do the job, this shows that the worker is an employee. Finally, the right to hire and fire the person can be proof that the person is an employee. If the person is an independent contractor, that person has a certain amount of say over the work and when it will be completed. That person is not subject to dismissal based on how the work is performed. When the work does not meet the requirements in the contract, this is a different matter.

When it is in question as to whether the worker is an employee or an independent contractor, the workers' compensation judge will make the determination. When a worker is injured on the job and there is a dispute as to whether that person was an employee or an independent contractor, it is imperative to have legal assistance. It is not unusual for employers to try to avoid paying these workers benefits.

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