Vol. 8, No. 2

May, 2001

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by Karl J. Januzzi, Esq.


The decision whether you are an "independent contractor" ( not entitled to workers' comp.) vs. an Employee (eligible for workers' comp.) is not for you or your Employer to decide, it is a matter for a workers' compensation judge. For example, if you are hired in a field where they use "independent contractors", typically construction or trucking, and you are then injured on the job, it is possible that your Employer may tell you that you are "out of luck", since you are an "independent contractor". This may or may not be true. A workers' compensation judge will look at the facts surrounding your contract for hire and weigh several factors to decide whether you are an Employee eligible for workers' compensation benefits. The key factors for the judge to consider include whether the alleged Employer has the right to do any of the following:

• Hire and fire you.
• Direct the manner in which you do your job.
• Control the work you are to complete.

What is important to the judge is not whether the Employer actually does any of these, but whether he retains the right to do any of them. So for example, an official for a high school football game is considered an independent contractor because, when he performs his duties, no one but he retains the right to control the manner in which his job is performed. However, a construction worker who is directed to do certain jobs and told where to go and how to do those jobs is more likely to be considered an Employee eligible for workers' compensation benefits.