Workers Compensation – Employee or an Independent Contractor?
One of the biggest dilemma’s concerning workers compensation insurance coverage is whether a given individual is an employee or an independent contractor. It applies to pretty much any industry. Recently, I had a discussion with a janitorial services business which uses a specialist to do 
floor waxing when needed. The owner told me this individual is an independent contractor. I explained to the owner that individual might be considered an employee in the eyes of an insurance carrier.
The reality is there is no definitive test to determine Employee or an Independent Contractor! It’s not a black and white issue. In many cases, it is the court of law who decides. California Workers Compensation laws are construed liberally; in other words, in favor of the claimant. There is a presumption of employment unless the employer can prove otherwise.
There are certain basic questions which might help determine the status, however. The following circumstances can help determine the relationship between and employee versus an independent contractor:
| Employee | Independent Contractor |
| Has the right to control the manner and means of accomplishing the result desired | Responsible only for the result of the work performed |
| Has a specific title and/or position | Engaged in a distinct occupation or business |
| Works under the direction of a boss | Is a specialist, does actual work without supervision |
| Uses company tools and/or equipment | Supplies their own |
| Working hours are set by the company | Has no set hours, may come and go at will |
| Is paid salary or by the hour | Paid on a per-job basis |
| The person assumes they are an employee | The person believes they are an independent contractor and usually has a certificate of insurance |
These are just a handful of circumstances. If you have additional insight to share, please comment below!
-JK
3 responses to “Workers Compensation – Employee or an Independent Contractor?”
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- - August 9, 2010
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About Me
I grew up in Fullerton, CA and graduated from Servite High School in Anaheim. I have my Bachelors degree from Loyola Marymount University in Los Angeles. I currently live in Tustin, CA.
Please contact me if you need help with any of the following lines of insurance for your business:
-Businessowners
-Property
-Commercial General Liability
-Product Liability
-Workers Compensation
-Group Medical
-Commercial Auto
-Umbrella/Excess Liability
-Errors & Omissions/ Professional Liability
-Employment Practices Liability
-Directors & Officers
-Life & Disability Insurance
Jimmy Kinmartin, CPCU 
Outstanding!!!!! This should be read by all those who think that by paying employees with a 1099, they’re off the hook.
Keep it coming Jim.
Thanks as always, Jose!