Independent Contractor vs. Employee: How It Affects Construction Injury Claims

Key Takeaways

• Learn how your job classification affects your legal rights
• Understand who may be liable after a construction site injury
• Find out what to do if you think you were misclassified

As long as you bring home pay for a day’s work, you might not think about whether you’re an employee or an independent contractor until you’re seriously injured on a construction site. Your status directly impacts your rights. But if you’re misclassified, a lawyer can help get you on the path to a full exploration of your legal options.

Why Your Job Classification Matters After a Construction Site Injury

Employees and independent contractors have different legal options after a construction site accident. Your job classification determines whether you file for workers’ compensation or start an independent contractor injury claim. It sets everything in motion for your legal claim: the support you can get, who pays, and who’s responsible.

Employees can sometimes sue for damages, but usually they have to start with workers’ compensation. Legal options depend on what happened and the applicable state laws. Third‑party construction injury claims are complex, so consider contacting a construction site accident attorney right away to help protect your legal rights.

Here’s how classification makes a difference:

• Where to go for compensation: Workers’ compensation or the personal injury claims process
• Your options for appeal: State-mandated workers’ compensation appeals boards or the courts
• Your potential for compensation: Medical expenses and lost wages only, or “pain and suffering” and other damages as well

Contractor misclassification can happen in the construction industry. One situation is when a worker is classified as an independent contractor even though they might meet the legal test for employment. The reverse can also be true: an employer may assume an employment relationship when the worker is actually an independent contractor.

How Contractor Misclassification Happens

Misclassification occurs for many reasons, but none of them excuses it. In all cases, the law can examine the details of the relationship between the worker and the company to confirm the correct status. Some common reasons are:

• Mistake: An employer might sincerely believe the worker is a contractor and not an employee.
• Tax avoidance: An employer might want the contractor classification to avoid paying payroll taxes. Similarly, the worker might want contractor status to avoid payroll tax deductions.
• Independence: An employer or worker might want an “arms-length” relationship in which the worker has the freedom to carry out duties independently. However, simply calling someone an “independent contractor” isn’t enough to avoid employee classification.

If you were injured in a workplace accident, talk to a construction injury lawyer about your legal rights. Even if you agreed to a classification “on paper,” the law might see things differently. This can directly impact what you can receive and the legal steps you should take to pursue a legal remedy.

What Is the Difference Between an Employee and an Independent Contractor?

When you call someone “boss,” you might think you’re an employee, even if on paper you’re an independent contractor. Sometimes the difference is hard to see. But when you’ve suffered a workplace injury on a construction site, that difference directly impacts your legal rights.

An employee works at the direction of the company, while an independent contractor is in business for themselves. But even if your “boss” says you’re an independent contractor, you might still be an employee under the law. If you’re an employee, your legal rights in a construction accident claim are very different.

Some states have legal tests to determine worker classification. But aside from these state laws, no single test can prove whether a construction worker is an employee or an independent contractor. Consider these factors:

• Who decides how and what work is performed
• Who decides how the worker is paid and how much
• Who supplies tools and equipment
• Are expenses reimbursed
• Are benefit plans, such as pensions or health care, paid for by the company

These are some of the factors the Internal Revenue Service (IRS) looks at when deciding who’s an employer or contractor for the purposes of taxation. These are common-law principles rooted in accepted practices in legal cases over the centuries. They evaluate how much control the boss has over the worker on a daily basis.

But other tests exist, such as the economic reality test under the federal Fair Labor Standards Act (FLSA). The test under the FLSA determines whether the worker is economically dependent on the company or is running an independent business. If there is an employment relationship under the FLSA, the employee is protected by that law, including minimum wage and overtime protections.

State Laws Determining Employee vs. Independent Contractor

In New York, the Construction Industry Fair Play Act presumes that anyone working for a contractor in the construction industry is an employee when they are injured. Only if specific criteria are met is the worker classified as an independent contractor.

Other states also have clear rules regarding employee vs. independent contractor liability and injury claims. In Wisconsin, for example, a person is an employee for workers’ compensation purposes if they are under a contract for hire. A “contract for hire” is anytime a worker is compensated for their services.

How Worker Status Impacts Your Injury Claim

Your classification determines the legal “basket” your injury claim falls into. But your assumed worker status is just a starting point. Usually, an employee falls under workers’ compensation, but consider Texas law: employees of the state of Texas can elect to opt out of workers’ compensation and keep the right to sue. Also, in Texas, employers can face a lawsuit if an employee suffers a fatal injury due to the employer’s negligence.

A construction injury attorney can review the details of your working relationship and, if appropriate, argue for the correct classification. An attorney can help make sure you have access to the legal options available to you, given your correct status.

Who Can Be Held Liable for a Construction Site Accident?

Liability for a construction site accident depends on the process. Workers’ compensation is usually a “no-fault” scenario where a person gets reimbursement for medical expenses, lost wages, and other specific types of damages. Employees can sometimes sue if a construction-site injury results from particularly reckless or negligent conduct.

If you file a lawsuit, as an independent contractor or employee who has the legal right to sue, there are several possible defendants in a construction site accident claim. Potential defendants include:

• The employer for failure to provide a safe working environment or follow guidelines found in OSHA construction safety resources.
• A coworker or other individual on the worksite who contributed to, or caused, the accident or injury
• The subcontractor providing services on the construction site, even if not directly under the control of the employer
• The equipment manufacturer, if the accident or injury was the result of faulty equipment

By sharing your story with a construction injury attorney, you can gain a better understanding of your legal options. That includes identifying how your accident happened and who might be on the other side of your legal action.

What To Do After a Construction Injury

The steps you take after a construction injury should support your physical and emotional wellness. You can also take action to protect your legal rights.

• Seek medical attention. Besides on-site first aid, also get medical attention from a doctor at an emergency department or clinic. Keep records of these medical appointments.
• Report the injury. Tell your immediate supervisor or on-site manager. File incident report paperwork with the company and subcontractor if necessary.
• File a workers’ compensation claim. Even if you don’t know your worker status, file workers’ compensation paperwork right away. By meeting reporting deadlines, you can preserve your right to legal action.
• Record the names of any witnesses. Jot down the names of coworkers and others who saw the accident or any relevant evidence. Ask a loved one to help you gather this information if necessary.
• Recount events as you remember them into a diary or video journal. Take notes of what happened as soon as possible while your memory is still fresh. If you are in shock after the injury, wait until you are physically and emotionally able to think about what happened.

As soon as possible, contact a construction site accident attorney to talk about the next steps. You can review your options and decide on the course of action that’s right for you to support your recovery.

How Kanner & Pintaluga Helps Injured Workers

Kanner & Pintaluga has worked since 2003 on behalf of injured construction workers, helping them secure fair settlements after serious accidents. The role of an attorney is to stand by you throughout all stages of your workers’ compensation or personal injury claim. Our firm:

• Helps you understand and assess your legal options
• Negotiates on your behalf with insurance companies and personal injury defendants
• Launches an appeal in the wake of a claim denial or unfair offer

We represent injured workers in 18 states who are facing life after serious accidents. In the wake of such devastating circumstances, we fight for your rights to fairness.

Talk to a Construction Injury Lawyer About Your Rights

Contact us today for a consultation. You don’t have to go it alone. Let Kanner & Pintaluga guide you through your options and fight on your side during recovery.