March 23, 2017

Workers Compensation Coverage Not Optional

who is an employee for workers compensation purposesWhat would you do if your employer asked you to accept a higher salary in exchange for “opting out” of the workers’ compensation system.  What would you say if a prospective employer offered you a job, but insisted that you classify yourself as an independent (1099) contractor so that payroll taxes would not have to be withheld and workers’ compensation insurance would not have to be provided?

Unfortunately for employers like this, workers’ compensation is not an optional coverage.  Under Georgia law, any employer who employs three or more full or part time employees must carry workers’ compensation insurance 1.

Generally, if the person or company you work for controls the time, manner and method of completing a final work product, you are considered an employee for workers’ compensation purposes.  Note that questions of employee vs. independent contractor for cases that involve the jurisdiction of the Georgia State Board of Workers’ Compensation are not the same questions asked by the IRS when considering whether you would be subject to tax withholding (although there is some overlap).

Here are factors that Georgia courts considering this question have considered:

  • The extent of control which the employer may exercise over the details of the work;
  • Whether the one employed is engaged in a distinct occupation or business;
  • Whether the work performed is normally performed under supervision of the employer or by a specialist who needs no supervision;
  • The skill or expertise required in performing the work;
  • Whether the alleged employer supplies the tools and/or place for the work to be performed;
  • The duration of time for which the person is engaged in performing the contract;
  • The method of payment for the job;
  • Whether the work to be performed is part of the regular business of the alleged employer;
  • The intent of the parties, specifically whether they intended to create an employer/employee relationship or that of an independent contractor;
  • Whether the work of the alleged employee is part of the regular business of the employer.
  • This question of “who is an employee” is one that has been litigated extensively in Georgia.

Remember, as well, that workers’ compensation was created to protect employees from the necessity of suing their employers and having to prove negligence. Workers compensation is a “no fault” system in that it does not matter if the employer was negligent or not. As such, Georgia courts generally take an expansive view of employment than not 2

As a practical matter, litigation in the “who is an employee” area often arises from cases involving part time workers (especially in the construction field), “loaned employees” or telecommuters or other situations where control of time, place and manner of work is not clear.

The bottom line, of course, is that if you are injured on the job, your main concern will be obtaining medical care and recovering lost wage benefits.  Your employer and/or its insurance company will use the uncertainty about your employment status as leverage to avoid accepting your claim as compensable, and to lower its settlement offer.

Since questions of employment vs. independent contractor status are often questions of fact, you should be very careful about how you answer questions and how you describe your duties.  If you have been injured and cannot work and you are getting the run-around from your employer or an insurance company, please call my office – we are happy to answer your questions.

  1. The State Board website offers this example: a regular part-time employee works regularly on a part time basis, such as employees who only work on weekends.
  2. Although interestingly, if you are an independent contractor and your injury arises from your employer’s negligence, you would have the right to pursue damages in tort, which include pain and suffering.
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Jodi Ginsberg

Attorney Jodi Ginsberg represents employees who are injured on the job and who need medical care and missed wage benefits available under Georgia's workers' compensation laws.

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