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Atkinson Gerber Law Office
Injured? Take Action Now!

Are you an employee or independent contractor? Why it matters after an injury

On Behalf of | Jun 9, 2023 | Workers' Compensation |

On a typical suburban Twin Cities construction site, it can be very tough to tell who is a direct-hire employee of their contractor or subcontractor and who is an independent contractor. The difference often doesn’t mean much — until a worker gets so seriously injured in a construction accident that they need surgery to save their limb, ability to walk, or even their life. Then the worker’s classification can mean the difference between their operation being covered by their employer’s workers’ compensation insurance or possibly having to pay their surgical bills and other injury-related expenses out of pocket.

In Minnesota, construction companies must carry workers’ comp insurance for their employees. If an employee gets hurt on the job, they can apply for workers’ comp, and if approved, get their injury-related surgical bills paid for and most of their lost income replaced until they are well enough to go back to work. But contractors don’t enjoy the same right, though employers can choose to insure their contractors if they want.

Minnesota’s ‘Are you an independent contractor?’ test

State law lays out a nine-factor test when an injured construction worker and their employer dispute whether the worker is an employee eligible for workers’ comp benefits. The statute presumes that a worker is an employee entitled to workers’ comp benefits unless all of the following nine things are true.

  1. The worker maintains a separate business with their own office, materials, equipment, and other facilities.
  2. The worker either has a federal employer identification number, has applied for one, or has filed business or self-employment income tax returns with the IRS for any services rendered in the past year.
  3. The worker operates under contract to perform specific services for the employer for specific amounts of money and under which the individual controls the means of performing the service.
  4. Incurs the main expenses related to the services performed under the contract.
  5. The worker is responsible for the satisfactory completion of the services agreed upon and is liable for failure to perform.
  6. The worker gets compensated on a commission, per-job, or competitive bid basis (i.e., not paid a regular wage).
  7. The worker may realize a profit or suffer a loss under the contract.
  8. The worker has continuing or recurring business liabilities or obligations.
  9. The success or failure of the worker’s business depends on the relationship of business receipts to expenditures.

These disputes can get technical and require legal assistance. After major surgery, you likely don’t have the strength or energy to deal with this by yourself. A workers’ compensation attorney can help you fight for the benefits you deserve, whether in negotiations or in court.



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