Declaration of Independent(ce)? Are your really an Employee?

Have you ever heard this one?

The Boss: "Okay. You're hired. But I'm only hiring you as an independent contractor. I'll pay your gross wages and your are responsible for paying the taxes."

The Employee: "Okay. Thanks. I really appreciate the opportunity."

So…now you are an independent contractor, right? You not only have to pay your taxes, but because you are not an "employee" you are not covered under workers compensation should you get injured, right? Not necessarily!

Unfortunately, this is a method used by some less-than-scrupulous employers in an attempt to deflect responsibility for social security contributions and workers compensation. They believe (and make their employees believe) that by calling someone an "independent contractor" that they are now clear of their responsibilities. The problem is that many employees, who would otherwise be eligible for workers compensation benefits, believe this to be the case and walk away from compensable claims. Thankfully, the courts in Kansas and Missouri require more than a "designation" for someone to be an independent contractor.

The courts have actually determined a number of factors that we consider to determine whether someone is an employee or independent contractor. An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer except as to the result of his work. However, the right-of-control test is not an exclusive test to determine the relationship. The courts have noted that an independent contractor represents the will of his employer only in the result of his work, not how it is done. The question is not whether the employer exercises control but whether that right has been reserved in the first place.

The right to hire or discharge the worker also can be an important element in this test. Generally if an independent contractor does not perform a job he was contracted to do in a satisfactory manner, the legal recourse is to sue the person for breach of contract due to faulty workmanship or incomplete services. Usually an independent contractor cannot be discharged at the whim of the person contracting the work. An employee, however, can be subject to this type of termination.

Other factors that are considered are whether the worker has any control over his or her schedule, whether the tools of the trade are provided by the employer or the employee, whether the worker can have other jobs with other employers simultaneously, and, of course, who pays the taxes. Rarely do all of these criteria apply or not apply to a given situation. This leaves a tremendous amount of gray area for the judge to determine the totality of the circumstances.

Before you consider yourself an independent contractor and simply walk away from your claim, call a workers compensation lawyer at Haight Stang LLC to find out what your rights are.

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