
Can You Be Liable for an Independent Contractor’s Injuries?
Use careful consideration before classifying workers

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Download TemplateWhat happens when the worker you have hired, that you believe is an independent contractor is injured? The short answer: It depends… Do you love that answer as much as I do? Seriously though, the answer depends on some specifics.
Suppose you have mis-classified your worker, who should have been classified as an employee all along and you have no workers’ comp coverage at all? Now, you’ve likely bought yourself a different kind of lawsuit. The worker can sue on the basis of the misclassification. That claim may raise the lack of workers’ compensation as one issue but also carries the possibilities of unpaid overtime and other benefits.
Now, just in case I haven’t given you a big enough headache, let’s add one more wrinkle. Suppose you hire a company to do some work for your business. That company is an independent contractor, and it brings its own employees onto your premises. Suppose one of those employees gets injured while doing work on your premises. On the one hand, that worker’s sole recourse against the independent contractor– his/her employer– is a workers’ comp claim. But s/he may have a viable third-party lawsuit against you, if s/he can connect your negligent or wilful misconduct to the injury in question–unless you and the independent contractor are a joint employer of that employee. When might that happen? One common example would be when the independent contractor is a staffing company and the worker in question is a temporary employee provided by the staffing company. This is one reason why some businesses actually want to be joint employers.
So, right about now you might be feeling, once again, that you are caught between a rock and a hard place, no matter what you do. Actually, you can do something. See what I did there, giving you this gloom and doom, then swooping in to offer hope and encouragement? Seriously though, if I didn’t warn you of these possibilities, you wouldn’t see the need to do anything–until it’s too late, so I wouldn’t be doing you any favors there, would I? OK, I’m back. No more rambling. How might you avoid these scenarios? You can start with the following:
- Review classifications of all your workers. You saw that one coming, right?
- Have written contracts with all your properly classified independent contractors and require them to carry general liability, workers compensation and any other relevant insurance;
- Require your independent contractors provide you with a certificate of insurance, and consider requiring that you be named as an additional insured.
- Make sure you are carrying workers compensation insurance — even if you have or believe you have– no actual employees. Many insurance companies will charge fairly low premiums under this scenario, and at least you can’t get in trouble for not carrying workers’ comp coverage in the event you are held to have misclassified one or more workers.
- And, of course, consult with in-house counsel or competent employment counsel. No post is complete without this one is it?