Employee

An employee as defined under workers' compensation laws is generally any person who is providing services for a for-profit business. If a worker is deemed an employee and is injured while performing their normal job duties, they generally are covered by the employer for workers' compensation insurance.

An employee can include day laborers, leased employees, borrowed employees, unpaid volunteers, most subcontractors, and part-time employees. Those who may be excluded and not considered employees include independent contractors and those whose services are considered exempted as employment under Workers' Compensation law.

Independent contractor vs. Employee

Often in a workers' compensation claim there is debate as to whether a claimant is actually an employee or whether they are an independent contractor. If a judge is asked to make the determination they will review several factors.

First, the judge will review the amount of control and direction the injured worker had to complete their work. If the employer was able to determine how, when, and where the individual's work was to be done, it is likely the court will rule the worker was an employee. Independent contractors generally control how they work, when they work, and where they work.

Next, the judge will consider whether the work done by the injured worker was the primary work of the employer. For instance, if the injured worker was fixing a leak at a department store they probably would be considered an independent contractor. If they were selling suits, however, the court would probably consider them an employee.

Next, the court will consider the method of payment made to the injured worker. If they were paid hourly, daily or weekly and the company is withholding payment for unemployment insurance, health insurance, pensions, and FICA taxes, they are generally considered an employee. If they receive compensation one time for one task, they are generally considered an independent contractor.

Finally, the judge may consider the injured worker was an employee if the company was providing all of the worker's equipment and materials needed to complete the job or had the right to fire the worker if they did not approve of the method used to complete the job. An independent contractor retains the right to complete the job as they see fit and is fired only if the contractual requirements for the job are not met.