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I’m an independent contractor, do I still get workers’ compensation coverage

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It depends. Employees are constantly misclassified as independent contractors so their bosses can save money on payroll taxes, avoid minimum wage and hour laws, and save money on workers’ compensation expenses.

So what happens in California if you are injured while working, but was classified as an independent contractor?

Department of Labor Standards Enforcement (DLSE) will presume you are an employee unless proven otherwise. California Labor Code 3357:

Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.

It is up to the employer to prove you are not an employee. The test to determine whether you are an employee or an independent contractor is complicated, with many different factors. But the general test boils down to whether the person to whom service is rendered (the
employer or principal):

  • has control or the right to control the worker,
  • the work to be done, and
  • the manner and means in which it is performed.

So what if I really am an independent contractor, and am injured while working?

If it turns out you truly are an independent contractor, that isn’t always a bad thing for you. If you can prove your employer caused your injuries due to negligence, you can sue your employer. Now, suing your employer is not good for your business prospects but if it the injuries are serious, it may be worth it.

You see, if you are covered by workers’ compensation, you are barred from suing your employer. The workers’ compensation system replaces the traditional tort system (which is what you would use if you are in a car accident) with a no-fault, contained system.

With a few exceptions, it is the sole remedy for injured workers. They cannot bring a 3rd party lawsuit against their employer unless one of the exceptions exist. An example of an exception would be your boss intentionally injuring you.

But without an exception, you are limited to the workers’ compensation system and cannot sue your employer.

If you are not covered by workers’ compensation, then you are free to bring a lawsuit. A lawsuit makes more sense in the case of severe injuries and disabilities.

If you are an independent contractor injured at work, get your questions answered

Workers’ compensation and employee classification are two difficult subjects on their own. Together, they join to create a confusing situation. You are hurt, suffering from pain and disability. Give us a call and we will answer your questions and explain your rights.

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