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Employee or Contractor? It Matters in Workers’ Compensation


In Florida, businesses of four or more employees are required to carry workers’ compensation insurance. This is just a general rule, and there are exceptions (for example, a construction company with any employee must provide workers’ compensation insurance).

If you are in a situation where your employer claims that it does not have to provide you workers’ compensation insurance, you should know whether that is true or not.

When Workers’ Compensation Must be Provided

Construction-related businesses must provide workers’ compensation for every employee, including for contractors and employees of contractors. Workers who are part owners of 10% of the company can be excluded. Sole proprietors do not have to carry insurance.

Companies do not have to provide insurance for independent contractors, which leads many employers to abuse the law by defining employees as contractors.

Regardless of what an employee is called by a company, and regardless of what the employee’s contracts or other agreements between the worker and the company may say, Florida law defers to the IRS definitions of what a contractor is and what an employee is.

Florida and the IRS will look at a number of factors to determine whether someone is an employee or a contractor. Some of the factors include:

-General freedom – Does the worker have the ability to come and go as he or she pleases, the freedom to do work on a flexible schedule, and to take breaks as needed? Or does the worker have to work defined hours as set by the employer? If it is the latter, the worker is probably an employee.

-Exclusivity – Can the worker perform services for other companies or employers? If so, the worker may be a contractor.

-Tools and equipment – If the tools needed to perform the job are paid for, maintained, or supplied by the worker, the worker may be an independent contractor. If they are supplied by the company, the worker could be an employee

-Training – It is generally assumed that a contractor comes into a job with the needed skills or training to do a job. An employee may need training, supplied by the employer. A contractor is also freer to do a job as he or she pleases, whereas an employee is more likely to have to follow company procedures when performing job related tasks.

-Payment – Workers paid on a regular basis are more likely to be employees. Contractors tend to be paid more sporadically, or when certain tasks are completed.

-Benefits – workers who are provided benefits are more likely to be considered employees. Contractors generally don’t get benefits.

These are all common sense guidelines, but they are important for workers to know. You do not want an employer denying you workers’ compensation benefits based on a false assertion that you are an independent contractor. Don’t allow yourself to be miss-classified, and then be in a bind if you are injured on the job.

The Tampa workers’ compensation attorneys at Barbas, Nuñez, Sanders, Butler & Hovsepian can help you recover lost wages while you are recovering from a work related injury. Schedule a consultation today.

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