Under Georgia law, contract employees are eligible for workers’ compensation, but some key questions need to be answered first. It all depends on the distinction between independent contractor and employee. Did the employer control the time, manner, methods, and means of the work performed by the worker?
The Georgia Court of Appeals has established a checklist of factors that can be used to determine whether or not an injured worker was an employee or an independent contractor:
- How much control did the employer exercise over the details of the work?
The more control an employer exercises over a worker, the more likely they will be considered an employee. If the alleged employer has the right to “hire and fire” workers employed by a “subcontractor”, then the courts will often find an employer/employee relationship. However, if the “subcontractor” is the entity that has exclusive rights to “hire and fire” its workers, then the Georgia courts have held this supports the finding that the “subcontractor” is indeed an independent contractor.
- Is the worker engaged in an unrelated occupation or business?
Is the worker doing the “regular” work of the business, or doing something separate and completely different? For example, a dentist’s office may hire a cleaning company to send a worker to the dentist’s office to clean it. The custodian would not be engaged in the occupation of being a dentist or a dental assistant, nor is his cleaning of the office in the dental “business.” He is engaged in a distinct business of cleaning.
- Is the work performed normally done under the supervision of the employer or by a specialist who does not need supervision?
In other words, how much control does the employer have over the worker? The greater the control exercised over the worker by the supervisor, the more likely the court will find an employer/employee relationship.
- Is there a skill or expertise required in performing the work?
Does the subcontractor have a skill or expertise which the “alleged employer” does not have? The more skills and expertise the worker has and uses, which is outside the regular occupation or business of the employer, the more likely the court will find an independent contractor relationship.
- Does the employer provide tools and/or a place for the work to be performed?
If the employer requires the worker to use the employer’s tools and materials for the job, this could be considered as a persuasive element leaning towards an employer/employee relationship.
- Is there a set time for which the person is engaged in performing the contract?
Also, does the employer control the hours in which the work is to be performed? Is there a length of time in which the worker is employed that outlined in the contract?
- How is the worker paid for the job?
A worker that is paid by the hour or is paid a set salary leans more towards an employer/employee relationship. If the worker is paid based upon a set price for a finished job or a specific amount of work, then it is more likely to be considered an independent contractor relationship.
- Is the work that is being performed a part of the regular business of the employer?
A custodian cleaning a dentist’s office is not performing work that is in the regular business of the alleged employer, especially if it is being done outside normal working hours (see factor 2). A dental hygienist that comes to work cleaning teeth would be performing work that is a regular part of the business of being a dentist.
- What was the intent of the parties? Did they intend to create an employer/employee relationship or that of an independent contractor?
This is one of the most important factors that a judge will consider when deciding if there is an employer/employee relationship. Was there a written contract of employment? If so, were the terms clear that this was to be an independent contractor relationship? Did it specify who would be responsible for securing workers’ compensation insurance and handling the taxes and social security benefits for the worker? Were these amounts withheld in the paychecks by the employer?
If the alleged worker is listed as “self-employed” on their tax returns and was also responsible for paying their own taxes, the more likely the relationship will be considered that of an independent contractor.
Workers’ Compensation Attorneys: Gary Martin Hays & Associates
No one factor can completely determine whether or not you are an employee or an independent contractor. The Administrative Law Judge will consider all of the factors and circumstances when making their decision. I highly recommend you discuss the specifics of your work situation with one of our experienced workers’ compensation lawyers to help you decide whether or not you may be eligible for workers’ compensation benefits.
How can you determine if your employer has workers’ compensation insurance?
You can verify coverage by going to the State Board of Workers’ Compensation website. Scroll down and select “Click here to conduct an Employer Insurance Coverage Search.”