Absolutely. There are several things which go into determining who is an employee and who is an independent contractor. But the one thing the court says we can ignore is what your boss says about it. Employers in certain business fields are notorious for calling employees independent contractors. And many employees go along with it to avoid having taxes withheld. It really comes down to an issue of control. The more control your boss has over you and how, when, and where you do your work the more likely it is that you are a legally an employee, even if you have a contract saying you an independent contractor.
Certain industries are more likely than not to have this come up. Sales representatives, construction workers, and truck drivers seem to encounter this more than most other people. Occasionally we see health care facilities claim that employees working PRN are independent contractors but that’s so laughable that it doesn’t come up often.
Normally the adjuster determines how much you made in each of the 52 weeks preceding the date of injury. This includes bonuses, per diems, etc. If you missed more than a week we exclude that period of time from the calculation. If you didn’t work there a full year we look at only the period you were there. If that period is extremely short, like a few days or a couple of weeks, we look at a comparable employee. That’s always interesting. It’s amazing how often we get a new client who was hired making $15.00 an hour but when the employer sends over the pay data of the “comparable employee” it is someone who was making $13.50 and refused every opportunity for overtime. If you’re a recent hire by all means give us a call and let us talk this through with you.
On a semi-related topic, if you work a lot of overtime there’s a great likelihood that you are going to be underpaid. When the adjuster asks your employer how much you made a lot of times the employer simply gives your 40-hour work rate. It’s not that they are intentionally cheating you (although sometimes they are) but that they aren’t volunteering information. And the adjuster will not often go out of her way to find a reason to pay you more money.
