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Workers' compensation -- who is an employee?

The workers' compensation law can be a boon for New York workers with an on-the-job injury. But only for those who are employees. Who qualifies?

Generally, workers' compensation insurance views the following as employees -- unpaid volunteers, part-time employees, borrowed employees, leased employees, day laborers and even most subcontractors -- though some exceptions apply.

In deciding whether a worker is, in fact, an employee, many factors are used. If a business meets any of the criteria discussed below and the person is neither an independent contractor nor a provider of services not covered by workers' compensation insurance, then the worker is covered.

One criteria is whether the business has the right to control the worker. And, more specifically, to what extent the business can control the worker's activities. The tighter the control, the more likely the worker is an employee.

A second criteria is how consistent the work is with the type of work the business does. If the work the worker does matches the type of work the business does, then it is more likely the worker is an employee. Take a roofer, for example. If the roofer is hired by a roofing company to install shingles, the roofer has a strong case for being an employee. But if the roofer is instead hired by computer company to patch its roof, the roofer is much less likely to be an employee.

A third criteria is the type of payment. If the worker gets paid wages to provide a service, the payments indicate the worker is an employee. But if the workers get paid to complete a task, the payment indicates the worker is not an employee.

Workers' compensation is important. But it is not always easy to navigate. To make the most of it, New Yorkers with a work-related injury may benefit from speaking with an experienced workers'-compensation attorney.

Source: New York State Workers Compensation Board, "Who Is An Employee Under the Workers' Compensation Law?" Accessed March 24, 2015

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