Yearly Archives: 2015

My boss just said I’m an independent contractor. Can I still get workers’ comp?

Workers' Compensation

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.

I just started working here last month. How do they figure my average weekly wage?

Workers' Compensation

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.

Why is my employer having me come to work and just sit there?

Workers' Compensation

Short answer: because they can.

Long answer: many employers and insurance adjusters are obsessed with the idea that injured workers are slackers who want to sit home and watch daytime television. We’ve met about three such workers and thousands who just wanted to get better and back to work they could safely do without further injuring themselves or their co-workers.

Prior to 2011 an injured worker could only be required to perform a real job – one which could be offered to anyone – while they were recovering from an injury. With a little lobbying from the big business and insurance companies, Gov. Pat McCrory initiated a massive overhaul of the workers compensation system, which, among other things, required that injured workers remain on their company’s premises if so requested.

Honestly we have a hard time seeing the point of this… if you’re employer is paying workers’ compensation insurance premiums in order to compensate you while you cannot do your job why should they want to bring you to the office or plant, plop you in a chair, and pay you full pay for sitting around doing nothing. Nevertheless it’s the new law.

Can I be fired while I’m on workers’ comp?

Workers' Compensation

It’s a common mistake and many people think they cannot be fired while they are on workers’ compensation. While it is illegal for your employer to fire you in retaliation for you filing a workers’ compensation claim, few employers are stupid enough to tell you that’s what they are doing. The flip side of the coin is that you don’t have immunity while you’re on workers’ compensation. So if there is a layoff when your company is downsizing you can be laid off despite your status in the workers’ compensation system. Similarly if your employer cannot accommodate your restrictions they aren’t required to hold your position indefinitely. They can replace you. Finally, if you mess up you can get fired for cause.

You should be cautious as more than one shady employer has fired an injured worker and claimed it was for cause when the facts were pretty debatable. For instance, we represented a retail employee who taught Sunday school regularly and was about as devout as they come. Following her injury she was assigned to work as a greeter. She was fired for allegedly using the “F word” to a customer. This was almost impossible to imagine happening. The proof of this? An anonymous letter to the store manager. At the hearing when asked why the store would believe such an outrageous accusation from an anonymous source, the manager defended it and said she believed the “anonymous source” because it was her own daughter. The Manager admitted to asking the daughter to write the letter and instructed her not to sign it. Yet the manager clung to the story that the underlying offense really occurred.

My human resources person said I had to use my vacation and sick time before they will pay me.

Workers' Compensation

No, that is not what the law says. North Carolina law says that you do not get paid for missing work the first week but you begin getting paid the second week. If you miss the third week – or if you get a rating to an injured body part – they have to go back and pay you for the first week.

If you do use vacation or sick time for that first week the insurance company is still obligated to pay you for the first week if you meet the eligibility for it. While they may claim that this is double dipping or a windfall to you that isn’t how the law sees it. You are using up a limited resource – your vacation time, sick time, or personal time off – and thus you didn’t get it for free. Oddly enough we see this misinformation coming from CorVel and state and local employers quite frequently.