Employee versus Independent Contractor Distinction

Attorney Ben Schwartz discusses the employee versus independent contractor distinction.

Employee versus Independent Contractor Distinction

Hi, I’m Attorney Ben Schwartz,

Today we are going to answer a question from Karen in Dover, Delaware. Karen wrote in and she said she was injured on the job, made a claim for workers’ compensation benefits, but she was denied. The employer and the Workers’ Compensation Insurance company is claiming she is not an employee and is that legal? The direct answer is, we would need to know more about the case. Please come in for a free consultation and we will see if we can make a determination if that is right or not, but I like the question and it is a good springboard to generally talk about the employee versus independent contractor distinction.

The employee versus independent contractor distinction comes into play very commonly in the law. It comes into play in situations like this, where someone is injured on the job, goes to make a claim for workers’ compensation benefits to get their medical expenses paid, and the insurance company says we are not paying for anything; you are not an employee and you are not covered under workers’ comp. It also comes into play in other types of personal injury cases.

For example, let’s say that a woman is stopped at a red light and she is rear-ended by a van. The van is driven by Joe the carpet installer and the van says right down the side, XYZ Carpet and Home. Obviously the carpet installer is installing carpet and the carpet was sold by XYZ, but the question that comes up is, is the carpet installer an employee of XYZ, or is he an independent contractor? If he is an independent contractor then XYZ is not legally responsible for the injuries caused to the lady, but if he is the employee then XYZ is also responsible. He is responsible and XYZ is responsible for paying for compensation for the ladies injuries.

The question in a lot of these cases is, is the at-fault party an employee or an independent contractor? It depends. Every single case is going to be different. There are factors that we look at to determine the extent of direction and control. How much direction and control is the employer asserting over the employee, or over the independent contractor? I will give you an example just to try and give you a little further context. Let’s say that you hire me as your attorney and we are going to go to court on Tuesday of next week. On the way to court, from my office to the courthouse, we drive separately and I cause an accident. I run a red light and I run into somebody and I injure them. They are going to sue me. Can they sue you? You employed me as the attorney and I was acting for you as I was driving to court. You are going to say that Schwartz was an independent contractor, he is not my employee, therefore I am not responsible to pay for his negligence because he is a bad driver.

The person that I hit may say no, Schwartz is your employee and you directed and controlled him. You sent him to court that day and he was acting on your behalf and so this is the context in which this question comes up. Of course, if you hire a professional like an attorney to do one particular case, to go to court for you in one particular matter, that is probably going to be an independent contractor relationship. If you own a law firm and you hire me as one of the attorneys in your law firm and you pay me a salary and give me a place to work and you provide me with a car to drive back-and-forth to court, then chances are you, as the law firm owner, you are going to be responsible for my negligence when I run a red light and smashed into somebody, because you are my employer and you are directing and controlling the work.

That is the difference between the employee and independent contractor distinction and it can be a very important question. It is a good question. I am glad we got the chance to discuss this. It is an aspect of the law I think many people are very unfamiliar with unless it comes up in their case. Often times, when it comes up in their case, it hits them over the head like a ton of bricks because it can be the difference between recovering compensation or not recovering compensation. Karen, I appreciate you asking the question, come on in for a free legal consultation. We will sit down and review all of the things that you look at to determine if you are an employee or  independent contractor and see if we can help you. If you are watching this video and you have questions for me about the law or your legal rights, send me an e-mail below. Thanks for watching.

Employee versus Independent Contractor Distinction

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