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When it comes to workers’ compensation in Texas, employers sometimes do bad things.  For purposes of our discussion today, we will focus on how employers try to make some employees think they are independent contractors in order to get out of providing workers’ compensation benefits.  The truth is that some independent contractors get workers’ compensation benefits in Texas.

Misclassification of Employees As Independent Contractors

As Texas workers’ compensation lawyers at MLF Legal, we often see insurance companies deny workers’ comp claims because the employer labels the injured worker as an independent contractor.  Generally, independent contractors are not employees of a company, so they are not covered by their workers’ compensation insurance policy.  That fact entices many employers to try to cheat.  If they use independent contractors, they don’t have to pay payroll taxes on them or buy workers’ comp insurance for them.

Texas workers’ compensation law has caught up to these types of games that employers play.  It’s called FRAUD.  In our system, some independent contractors get workers’ compensation benefits.

What Is An Independent Contractor In Texas Workers’ Compensation Law

An independent contractor is usually somebody that comes in to perform a function that is not something the employer usually performs in the course and scope of its business.  For instance, the copy repair man that comes to our law office to service the copy machine is not our employee.  He would be an independent contractor.  A painter might hire a company to erect scaffolding on a job site.  That scaffolding contractor does not become an employee of the painter.

So, how do some independent contractors get workers’ compensation benefits in Texas?  They prove they are not really an independent contractor, but an employee.  This is easy to do when employers cheat. 

How Employers Cheat By Labeling People As Independent Contractors

Would you be surprised to learn that a home building company has workers’ compensation insurance that covers the one secretary in the office but none of the people working on the construction site?   That employer claims that everyone on the job site is an independent contractor.  They are paying insurance rates for office work rather than construction work. 

Did you know that FedEx alleges that many of its drivers are independent contractors?  They have made people buy trucks and sign independent contractor agreements to be delivery drivers.  When a delivery driver gets hurt, FedEx says they are not employees so they can get out of paying Texas workers’ comp benefits.

This kind of thing happens all the time.  If you can talk candidly to a general contractor, they will tell you that they have to do that in order to put a competitive bid in for a project.  Workers’ comp insurance and payroll taxes add to their costs, which drives up their price.

How Independent Contractors Get Workers’ Compensation Benefits

If you got injured on a job where the employer claims that you are an independent contractor and not an employee, you can still pursue benefits.  The secret is to prove that you are actually an employee, even though the paperwork says otherwise.  Independent contractors get workers’ compensation benefits in Texas when they can prove that they are really employees.

Factors Affecting Employee vs. Independent Contractor Status

There are several factors in establishing yourself as an employee.  The main one is the right of control.  Who has control over what you do?  If the company tells you what to do and how to do it, then they are exercising the right of control.  That makes you more of an employee than an independent contractor.  An independent contractor would usually be hired to accomplish something that the company can’t do on its own.  So, they expect the contractor to know what to do and how to do it.  Independent contractors are not usually told how to do their job.

Another factor is who provides the tools.  Independent contractors usually roll up in a truck with their own tools.  An employee is usually provided tools by the company. 

When a company hires someone to do the kind of work the company usually performs, they are more likely to be an employee.  When they hire someone to do work they do NOT usually perform, that person could be an independent contractor.  Putting someone in a FedEx truck, in a FedEx uniform, with FedEx forms, to deliver packages in a route developed by FedEx managers, to people who think a FedEx employee walked through their door to make the delivery is not a good way to claim a worker is an independent contractor.  FedEx controls way too much of that process for it to be independent.

Finally, an independent contractor usually has multiple clients.  A copy repairman might visit 10 different clients in a day to make repairs.  If the copy repairman came to my office every day and only worked for me, then he’s probably my employee.  A scaffold builder who spends one week erecting scaffold for one construction company and then another week at a different job site for a different construction company is likely an independent contractor.  A scaffold builder who only works for one construction company and goes from one job site to another erecting scaffold for only that one construction company, might be able to prove that he is an employee.

So, some independent contractors get workers’ compensation benefits in Texas.  It’s all about whether you are a “for real” independent contractor or you are only “labeled” an independent contractor.  These are highly complex legal questions that usually require a hearing before a judge to resolve.  As Texas workers’ compensation attorneys, that’s what we do.  If you would like a free consultation, give us a call or email us at info@mlflegal.com