MY EMPLOYER DENIED WORKERS’ COMPENSATION BENEFITS BECAUSE I’M AN "INDEPENDENT CONTRACTOR," NOW WHAT?

By Leandro Alhambra

Under the Illinois Workers’ Compensation Act, employees who sustain injuries that arise out of and in the course of their employment are eligible for workers’ compensation benefits. If the injury results in lost time from work, the Act requires the employer to pay lost wages as Total Temporary Disability (TTD) benefits, equal to two-thirds of employee’s average weekly wage. Employers are also required to pay all the medical bills for treatment for a work injury. The employee may also be entitled to an award/settlement for any permanent problems or symptoms from the injury. However, to be eligible for these benefits you must first show you are an “employee.”

A frequent assumption by many injured workers is that they do not qualify for workers’ compensation because they signed an employment agreement that labels them as an “independent contractor.” However, this is only one of many factors the courts consider in determining whether an individual is an employee or an independent contractor. What your employer labels you is not the final word on this issue. The factors Illinois courts consider in employee-independent contractor disputes are:

•· Whether the employer provided tools, materials, and equipment.

•· Whether the employer prohibits the individual from working for competitors.

•· Whether the employer provides job training/instruction.

•· Whether the employer withholds income and social security taxes from compensation.

•· How the claimant was paid (hourly or salary vs. paid per job).

•· Written agreements characterizing the claimant as an “independent contractor”.

Perhaps the most important factor that courts look to is the degree of control the employer has over the worker. The courts will consider factors such as whether the claimant was required to work a set schedule, whether the claimant reports to a supervisor and is directed by supervisor on how to perform tasks. The more control your employer asserts, the more likely you will be deemed an “employee.”

In most cases some factors will favor the determination that the worker is an “employee,” while other factors may point to the determination that the individual is an “independent contractor.” Keep in mind that there is no set formula to make this determination. The inquiry is very fact specific. The courts will make this determination based on the totality of the circumstances. Therefore, it is important that you retain an experienced litigator who can present your case in a clear and concise manner, emphasizing the facts that favor the determination that you are an “employee” under the Act.

Some employers misclassify their workers as independent contractors to avoid payroll taxes or paying for workers’ compensation insurance. Do not assume that you do not qualify for workers’ comp benefits just because your employer labels you as an “independent contractor”! If you have been injured on the job it is important that you consult with an injury attorney to evaluate your legal rights. Otherwise, you could be missing out on a significant amount of benefits provided by the Illinois Workers Compensation Act.

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MY EMPLOYER DENIED WORKERS’ COMPENSATION BENEFITS BECAUSE I’M AN "INDEPENDENT CONTRACTOR," NOW WHAT?