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Can Independent Contractors Get Workers’ Comp in New York?

Workers’ compensation is for employees, but whether you are an “employee” may be unclear

In New York, workers’ compensation benefits are supposed to be available for all employees who are injured on the job, but independent contractors are not employees. If you were hurt on the job as a contractor, you may be stuck between a rock and a hard place. Can you get workers’ comp?

The short answer: it depends. While independent contractors are not eligible for workers’ compensation in New York, whether you are considered an “employee” for workers’ compensation purposes can be a contentious legal issue.

Moreover, even if you aren’t an employee, you may still be able to get other forms of compensation for an on-the-job injury. An experienced work injury attorney can listen to your story and explain your options in a free consultation.

Some “independent contractors” may actually be employees for workers’ compensation purposes

Unfortunately, many employees miss out on collecting benefits because they are wrongly classified as “independent contractors.” An employer cannot simply call you a “contractor” to get out of paying for workers’ comp and other benefits. There are specific legal criteria that must be met to classify you as an independent contractor.

Independent contractors are, in a legal sense, in business for themselves rather than under the direction and control of an employer. In general, independent contractors:

  • Are free to refuse work.
  • Are free to work for multiple businesses.
  • Set their own schedules.
  • Negotiate their own pay rates.
  • Don’t receive extensive supervision, training, or formal performance reviews.
  • Pay for their own equipment, supplies, facilities, and other expenses.
  • May choose to hire help (employees and/or subcontractors).

There are also specific state laws that apply to independent contractors and employees in certain industries, such as the Construction Industry Fair Play Act and the Commercial Goods Transportation Industry Fair Play Act. And it’s important to know that under New York law, you cannot waive your rights as an employee. If the law considers you an employee, then you can get workers’ compensation benefits, period.

In short, just because you get a 1099 rather than a W-2 at the end of the year doesn’t necessarily mean you are an independent contractor for workers’ comp purposes. New York employers do not make the final call on whether someone is their employee and, therefore, eligible for workers’ comp benefits.

If there is disagreement, the New York Workers’ Compensation Board will hold a hearing to determine if an injured worker satisfies the state's criteria for classification as an “employee.” If an employer-employee relationship exists, regardless of what the parties involved call it, then you should be eligible for workers’ compensation.

If you are an independent contractor, then you can file a personal injury claim

The tradeoff at the heart of workers’ compensation is that employees get no-fault benefits if they are hurt on the job, but they can’t sue their employers in civil court for additional damages, even if the injury was the employer’s fault. This tradeoff cuts both ways: if you are an independent contractor, you can’t get workers’ compensation, but you can sue the employer for damages in civil court.

So, if you are indeed classified as an independent contractor, you may have several options to recover compensation for your on-the-job injuries. You can file a personal injury claim against your employer if their negligence caused or contributed to your injuries (for example, if you were injured on their premises due to unsafe conditions). You can also file a claim against a negligent third party if their negligence caused or contributed to your injuries. Depending on the circumstances, there may be other options as well.

Legal assistance for New York workers injured on the job

That’s why, if your employer is trying to deny your workers’ compensation claim on the grounds that you are an independent contractor, you need to talk to an experienced work injury lawyer as soon as possible.

If you are misclassified as a contractor, then an attorney can investigate the situation and find evidence proving that you are indeed eligible for workers’ compensation. And if you are an independent contractor, an attorney can get to the bottom of what happened, determine which party or parties were responsible for your injuries, and pursue legal action on your behalf.

An experienced NYC work injury lawyer can investigate what happened and explain your legal rights and options under New York law. If you decide to hire us, we will investigate the accident and pursue legal action on your behalf to obtain the compensation you need and deserve.

For over 90 years, the lawyers at Pasternack Tilker Ziegler Walsh Stanton & Romano LLP have been helping hardworking New Yorkers get their lives back on track after a work accident. If you are a New York worker who was injured on the job, contact us for a free case evaluation to learn more about your potential options for financial compensation.

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