Independent Contractor Workers' Comp - Wilkes-Barre, Scranton Personal Injury Lawyers

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Independent Contractor Workers' Comp

In the event of a work injury involving a construction site, the issue of whether the injured party is an employee or an independent contractor often arises. The resolution of this issue can have a drastic impact on the rights of an injured worker to recover workers' compensation benefits.

Generally speaking, workers' compensation insurance is required under Pennsylvania law to cover employees injured in the course and scope of the performance of their employment. Employees is synonymous with servant and includes all natural persons who perform services for another for valuable consideration. If the manner and means of performing the work resides in a master, tools and other implements of work are supplied by the master, and taxes are withheld, the servant is an employee of the master. Workers' compensation insurance is not, however, required to cover independent contractors who sustain injury in the course of the performance of the contract.

An individual who performs services in the construction industry for remuneration is an independent contractor only if all three of the following criteria are satisfied:

  • The individual has a written contract to perform such services
  • The individual is free from control or direction over performance of such services both under the contract and in fact; and as to such services, the individual is customarily engaged in an independently established trade, occupation, profession or business

An independently established trade, occupation, profession or business is defined as someone who:

  • Possesses the essential tools, equipment and other assets necessary to perform the service
  • Can realize a profit or loss from the service
  • Performs the service through a business in which the individual has a proprietary interest
  • Maintains a separate business location
  • Has previously engaged in similar services as set forth above while free from direction and control
  • Maintains liability insurance of at least $50,000

An independent contractor is not an employee because of the absence of a master/servant relationship. The key factors in determining whether someone is an independent contractor or an employee include the terms of the agreement between the parties; the nature of the work or occupation; the skill required for performance; whether the one employed is engaged in a distinct occupation or business; which party supplies the tools; whether payment is by time or by the job; whether work is part of the regular business of the employer; and the right to terminate employment at any time. The primary factor, however, is the right to control either the work to be done or the manner in which the work is to be performed. Control in an employment relationship exists where the alleged employer has the right to select the employee, the right and power to discharge the employee, the power to direct the manner of performance, and the power to control the employee.

If you are injured in the course of a construction job, you should contact one of our experienced attorneys to determine whether you can pursue a workers' compensation claim. At ACA Law, We Fight for What's Right!

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