The beauty of outsourcing work to independent contractors is that you get the benefit of the services and no responsibilities
, except for timely payment, right? While you might need workers’ compensation insurance in case your employees are injured on the job, you have no such responsibility toward your independent contractors, right? If the independent contractor sustains in an injury while on your premises doing work for you, well that’s their problem, isn’t it? Isn’t that why you’re using independent contractors? Well, if you believe that, I am sorry to be the bearer of bad news. In fact, you may still have responsibilities, and you can still be liable, if you’re not careful. Want to know why–and how you can be careful? Read on after the jump…
(Image from aramcan.ca)
So, first let’s just review what happens when your employees are injured while working for you. If you’re doing what you’re supposed to be doing, you have workers’ compensation insurance and you follow all the workers’ compensation statutes in the state(s) where you employ people. Your employee files a workers’ comp claim, and s/he receives medical coverage and coverage for any lost wages through the workers comp claim. If your employee disagrees with your insurance carrier’s determination s/he can bring a claim in workers’ comp court. In most cases, that is your employee’s sole remedy–unless s/he or your insurance carrier can prove that the injury was due to an intentional act or omission on your part.
What happens when the worker you have hired, that you believe is an independent contractor is injured? The short answer: It depends… Do you love that answer as much as I do? Seriously though, the answer depends on some specifics.
If you have correctly classified the worker as an independent contractor, you do not have to worry about workers’ compensation issues, but you still aren’t off the hook. You may actually have more troubles. Why? With very few and rare exceptions, an employee’s sole remedy for work-related injuries is the workers’ comp. The employee cannot bring a third-party lawsuit, so you’re most likely not facing exorbitant legal fees and five, six or even seven-figure judgments or settlements. An independent contractor has no such impediment. So an injured independent contractor who can show: a) a causal connection between that your actions or omissions and the injury; and b) that your actions and omissions amounted to negligence might result in you havaing to defend a lawsuit. Now, of course, the employee might not have much of a case. However, you are still expending signficant resources defending the case, even if you ultimately get the claim dismissed.
Suppose you have mis-classified your worker, who should have been classified as an employee all along and you have no workers’ comp coverage at all? Now, you’ve likely bought yourself a different kind of lawsuit. The worker can sue on the basis of the misclassification. That claim may raise the lack of workers’ compensation as one issue but also carries the possibilities of unpaid overtime and other benefits.
Now, just in case I haven’t given you a big enough headache, let’s add one more wrinkle. Suppose you hire a company to do some work for your business. That company is an independent contractor, and it brings its own employees onto your premises. Suppose one of those employees gets injured while doing work on your premises. On the one hand, that worker’s sole recourse against the independent contractor– his/her employer– is a workers’ comp claim. But s/he may have a viable third-party lawsuit against you, if s/he can connect your negligent or wilful misconduct to the injury in question–unless you and the independent contractor are a joint employer of that employee. When might that happen? One common example would be when the independent contractor is a staffing company and the worker in question is a temporary employee provided by the staffing company. This is one reason why some businesses actually want to be joint employers.
So, right about now you might be feeling, once again, that you are caught between a rock and a hard place, no matter what you do. Actually, you can do something. See what I did there, giving you this gloom and doom, then swooping in to offer hope and encouragement? Seriously though, if I didn’t warn you of these possibilities, you wouldn’t see the need to do anything–until it’s too late, so I wouldn’t be doing you any favors there, would I? OK, I’m back. No more rambling. How might you avoid these scenarios? You can start with the following:
- Review classifications of all your workers. You saw that one coming, right?
- Have written contracts with all your properly classified independent contractors and require them to carry general liability, workers compensation and any other relevant insurance;
- Require your independent contractors provide you with a certificate of insurance, and consider requiring that you be named as an additional insured.
- Make sure you are carrying workers compensation insurance — even if you have or believe you have– no actual employees. Many insurance companies will charge fairly low premiums under this scenario, and at least you can’t get in trouble for not carrying workers’ comp coverage in the event you are held to have misclassified one or more workers.
- And, of course, consult with in-house counsel or competent employment counsel. No post is complete without this one is it?
Let’s end here for now. Since I can’t decide yet which of the many topics I want to cover in next week’s post, let’s leave a little mystery. See you then!
Disclaimer: This post and all its contents are for educational/informational purposes only, are not intended as legal advice, do not create an attorney-client relationship, and are not intended to replace consultation with competent employment counsel in the state(s) in which you employ people.
Do you run pre-employment criminal background checks? Make sure you’re on the right side of federal and state laws: Click here to register for my upcoming live webinar on Wed., January 27 at 2:30 pm. EST–and get HRCI credits!
Are you getting tangled in the complex employee leave web under FMLA, ADA, and workers comp? Click here and register to download the recording for my webinar “Life Science or Non-Life Science – Oh My! FMLA, ADA and Workers’ Comp Guidance for All Employers”.
Click here to sign up for your complementary, no-strings-attached 30-minute consultation with The EmpLAWyerolgist Firm.
If you want to really be up to date on hot-button employment law topics, with a monthly EmpLAWyerology Alert subscription and learn about upcoming webinars, email janette@theemplawyerologist.com or click here.
Watch The EmpLAWyerologist Firm’s video clip.
If an independent contractor works part time and has no employees and has signed a document that he is an independent contractor and is responsible for his own insurance coverage, would a property owner still be liable if the independent contractor is injured working on your property?
If a worker is doing work for a property owner on the owner’s property, s/he may in reality be an employee if s/he meets the applicable state and/or federal criteria. The fact that s/he signed an agreement stating s/he is an independent contractor is irrelevant if s/he meets applicable criteria. Generally the more control the property owner exercises over the worker, the work in question and working conditions, the more likely it’s an employer-employee relationship, in which case the property owner had better have workers’ comp coverage. If it is not an employer-employee relationship, then the worker might still be able to sue for his/her injuries even if s/he is supposed to have his/her own workers’ comp coverage. The answer will depend in part on the laws of the state in which s/he is working.
if an independent contractor is involved in an accident in which the company he works for rents the truck he drives. who’s liable if party involved wants to sue
Hi Sheila,
The answer is probably “It depends”. That said, the injured party or parties would probably name the driver and the company and maybe even the company from whom the truck was rented (along with their respective insurance carriers) as defendants, and then those defendants would fight it out with each other as to who is or is not liable, how much, etc. I do urge you to speak with local counsel about any specifics, however.
When hiring independent contractor in Texas we use Texas Labor Code 406.121 in our contract
can you provide the equivalent code for Louisiana PLEASE.
Thanks
Hi,
Thanks for writing in. I am not really supposed to give specific legal advice on laws in States where I am not licensed to practice. You might want to reach out to someone admitted there. Many attorneys do not charge for initial consultations. Good luck!
If I’m a llc and I hired someone for cash/1099 and they get hurt am I responsible
Hi Justin,
It depends on the specific circumstances under which the contractor gets hurt. S/he can sue for his/her injuries and then, if the matter goes to trial, a jury would decide, based on the evidence, whether you are liable. If a worker is your employee and s/he is injured on the job, then in all but very exceptional circumstances, s/he will only be entitled to workers’ comp benefits, which generally include medical care and lost wages as a result of the work-related injury.
Hi,
I am taking a job under an independent contractor during my trial period. They are having me sign a paper absolving them of any responsibility for injury. It is a chef position and if I do get hurt…..knock on wood!!! Does that mean that they are not liable at all? Now if equipment failure is a factor, they must be held to some kind of responsibility?
Hi Rebecca,
Thanks for writing in. First, you may be misclassified. Just because you signed an agreement that says you’re an independent contractor doesn’t mean you are one. If they are otherwise treating you like an employee, you may in fact really be an employee, in which case they can get into trouble for not having workers’ comp coverage for you. Generally if you are not an employee and you are injured you can sue. Whether or not you can waive that should depend at least in part on the laws in the state where you are working. I would therefore urge you to speak with local counsel. Many of them will give a complementary consultation.
So I own a sole proprietor painting business. I only use 1099 subcontractors and require they have Workers Comp. But on Labor Day weekend, an owner of a car dealership I do a lot of work for, called me Friday night to meet him at the dealership Saturday afternoon. He wanted me to do a rush job on painting some light fixtures. Have them done by Tuesday. My normal 1099 subs had both left town on Friday, and weren’t coming back to work until Tuesday. So, I called some past 1099 subs and found 2 people to help me. The rush job took four days to do. On the 4th day, one of the fill in 1099 subs ( he did sign a 1099 , his pay was over $600 ) got injured–but didn’t have Workers Comp. He is saying I and both the dealership are liable for his medical expenses. Who is liable ? BTW–his injury was caused by him not being careful on a set we had with a pick and ladders. I worked on the same setup for 30 minutes , had no issues. but , I was careful. Thanks for your time !
Assuming that the worker is properly classified as an independent contractor, he may still be able to bring a lawsuit against you and the dealership. If he is covered by workers’ comp then he cannot sue his employer, but would have to file a workers’ comp claim. If he is self-employed, then it means he cannot sue himself or his company, but would be limited to workers comp benefits through his company. Even so if there are other parties involved and those parties are not that person’s employer then the worker can file suit against the other non-employer parties. If his own negligence contributed to his own injury then you can raise that as a defense in a lawsuit. The bigger question may be whether you have in fact properly classified him. If he is doing work that is integral to your business, the fact that he signed a 1099 and has his own workers’ comp by itself does not automatically make him an independent contractor. The state(s) in which you are doing business (and in which these people are working) may have additional laws on this particular issue. I do recommend you speak with an employment attorney in the state(s) where you are hiring people to make sure you have properly classified them as independent contractors. If they are misclassified you can run into a host of problems with the US Department of Labor, the IRS and their state counterparts.
Hello,
If I worked for a contractor who is not Llc, and I got injured. Who is responsible for my injuries? I got paid cash daily and fell off a roof and broke my heel bone and injured my back from the fall. This contractor has no workers comp. What can I do?
Hi Andree,
If you were injured on the job, and if you are an employee of the contractor, then yes, the contractor is liable and you are probably eligible for workers’ comp coverage. Some states require employers with only one employee to get workers’ comp coverage, and some require that the employer have at least 3 or 5 or some other minimum number of employees. If the contractor does not have workers’ comp you would still have a claim. In most situations you can then file a lawsuit. I would recommend you see a workers’ comp and/or personal injury attorney near you. Hope this helps. Good luck!
Love you site! If you make an independent contractor sign a contract which says if they don’t give you an occ/acc certificate you will provide the insurance for them, deducting it from their payment, what would happen if by mistake you failed to buy the policy and they had an injury? Would that be a breach of contract on my part? My staff took the deductions but did not secure the policy. What exposure could we realistically face? Thank You for your time!
Hi Thomas,
You may have an issue with breach of contract and also liability for the contractor’s injury, but I hesitate to give advice through this forum, especially since I do not know what state you are in, or the specifics. For this type of issue, you really need to consult with local counsel and have him/her review your contract and probably also whatever insurance policies you already have. Good luck!
IDK if there will be anything to it but the guy has filed both a workers comp claim and a breach of contract against us. I thought a person could only do workers comp alone. Anyhow, the guy’s lawyer says the issue is separate. Says the breach happened when we didn’t get the policy. Says the injury only exposed the breach and the injury is a work comp thing. My staff screwed-up! Is this a real threat or just a lawyer looking to scare me into a settlement? Thanks!
If the worker is an independent contractor, then workers’ comp will not be available and will not protect you. The worker can then file a lawsuit against your company, because the workers’ comp bar will not apply. Again, please consult with local counsel if you have not done so already. I cannot really give specific advice through this forum.
Thank you so much for your replies. This is in North Carolina and they have some really odd WC laws I have been told. Something about a test the state courts use. I have left a message for a business attorney to call me back. I’m worried because if they are able to separate the two issues I could face the breach and the WC. Take Care
Unfortunately I cannot begin to advise on North Carolina WC laws. I wish you the best of luck, however.
Got hurt on the job no insurance my boss as no insurance, said I’m contractors but I get a hourly wages. Got a time clock told my hours and got a Forman. Employee or contractor what am I.
Hi Roy,
There are some indicators that seem to point to you being a misclassified employee. I would suggest however that you speak with local counsel and go over all the relevant facts. I can’t really make that assessment in an appropriate way through this particular forum.
What happens if a sub-contractor’s employee gets injured at the contractors jobsite ,sub-contractor does not report injury to contractor or OSHA .Sub-contractor fires injured employee to avoid …..lets say,higher premiun/or maybe sub-is uninsured/or illegally insured with workers compensation insurance,and sub- fires injured worker to avoid dealing with the consequences of the scenarios i mentioned above. Injured worker files incident at workers compensation and sub denies having any injurie report on record of the date when injured worker ssustained industrial accident ,injured worker appeals sub’s denial of liability,and at a mandatory settlement hearing before a WCAB Judge ,injured worker gives Judge evidence in form of documents/signed statements of witnesses to his industrial accident ,WCAB accepts injured worker injury claim.Now the question is ,When sub-contractor is not insured or denies paying injured worker lost wages,can injured worker recover lost wages from general contractor that resulted directly from industrial injury that took place at general contractors jobsite?
The general contractor and the sub-contractor may be joint employers. If they are then you may have recourse against the general contractor. If they are claiming you are not an employee then you could file a personal injury lawsuit for your injuries. The best thing to do would be to consult with counsel in your area. Workers’ comp law is state-specific. There may be other state-specific laws that will come into play as well.
If you are hired to work for an individual that has always worked by himself until now; his business is growing and he needs more labor help. I am an hourly paid employee of his. Who pays for my workmans compensation;
Hi Jason,
Thank you for your question. If you are truly an employee of that business then it should have workers’ comp coverage for you. They may be classifying you as an independent contractor. If so that classification may be incorrect. You may want to speak with local counsel to get some advice on whether you are properly classified and your options in either scenario. Good luck!
I am employed as a 1099 contractor as an a nurse with a staffing company. My contract includes my 1099 salary and vacation time. The company that I contract with provides services to many health care facilities. I am assigned specific facilities to provide services. If I should get injured while providing care to a patient in one of these facilities am I in any way covered for my injurys by either the facility where I am providing my services or by the company that I am contracted with?
Hi Andrea,
If you work for a staffing company, you may really be a misclassified employee. I recommend you speak with local employment counsel to see if that may be the case. If so, then the staffing company has to have workers’ comp coverage for you if you are injured while on the job. If in fact you are an independent contractor, you can sue for your injuries. Hope this helps
Is there any specific kind of business liability insurance that someone who hires independent contractors can buy to protect themselvs against personal injury lawsuits? Would general liability cover typically cover that?
I really would advise you to speak with an insurance agent or broker. They have far more expertise in this area than I can claim to have.
I was hired as an independent contractor in July of 2009, I was misclassified by my employer, as I had no contract, was required to follow his schedule, couldn’t hire any employees, and he dictated how I was to do the work. Basically, I was called an independent contractor, had to provide my own tools, hold a mechanics liability policy, but was treated like an employee. In June of 2011 I fell off of a ladder and broke the calcanus of my right foot. Was admitted to the hospital for 2 days, but the orthopedic surgeon said it didn’t need surgery. I was splinted, then casted, and returned to work 2 weeks later to find that I was now a regular employee, with workers compensation, paid vacation, and taxes taken out of my check. He refused to pay my medical bills, and I had to make up the time I was off work. I just got the bill again, and it is ruining my credit. Can I sue him after so much time has elapsed?
If you have not done so, I urge you to speak with local employment counsel and see what if any recourse you might have.
A tree removal contractor I wish to use has liability insurance but no workman’s comp. Is that acceptable or should I look elsewhere?
That depends at least in part on the workers comp laws in your state, but you may want to err on the side of caution and look elsewhere.
I am a general contractor who cover a sub contractor permit in two apartment in the same building. The sub contractor perform a renovation job in all the hallways at the same building without my involvement. (He made a contract directly with the building board and management).
His employees was working in the building hallway and fell from the ladder.
Now I am being sued since my permit upper on the building wall. (Again my permit cover the two apartments and not the hallway).
Dose he have a case against me even though the I have no contract for the hallway and not getting paid for this job?
I appreciate your response.
Thanks
You may have an argument that you do not have employer liability toward the injured worker. I would strongly recommend you speak with an employment attorney in the state where the injury occurred.