One of the biggest trends in Illinois workers’ compensation law over the last ten years or so has been employers trying to outsmart the system. They don’t want to pay for workers’ compensation insurance so they call all of their workers “independent contractors.” It’s also a way for them to cheat the Government because they avoid payroll taxes when they do this. It works out great for them unless they get caught.
In most cases, workers aren’t running to the IRS and telling them that their employer is committing a felony. But when those workers get hurt on the job, they are seeking out assistance and usually gaining access to work comp benefits.
Just because your boss calls you an independent contractor and pays you as a 1099 employee, doesn’t mean you are one. They don’t get to make the rules. Even if they get you to sign something that says you are a 1099, that doesn’t mean you are one. Instead, we look at the facts.
In determining whether you really are or aren’t an employee, the most important factor is control. The more control they have over you, the more clear it is that you are an employee. The recent Illinois Workers Compensation Commission claim of a laborer shows what I’m talking about.
In that case, a marketing company got jobs for contractors in exchange for a commission. They entered into an agreement that labeled the contractor a 1099. He was hired to clean gutters and on his third day of work, he fell off a ladder and sustained multiple injuries. He tried to make a work comp claim and was denied.
He got a lawyer who took the case to Arbitration and won all the benefits he was owed. The court noted that despite what the contract said, it was clear that the workers were serving as employees. The supervisor directed the worker and other laborers to meet up at a certain time and loaded them into a company truck. They all rode together to a job site and once there, the supervisor directed them where to start, who was assigned to certain duties, and what buildings to work in. The supervisor remained on the job site to oversee the work. They also provided all of the equipment that was needed.
So common sense tells you that the company had control. This wasn’t a handyman who was hired and brought his own tools. This wasn’t a painting company that sent out their workers. The employer was trying to game the system and did so in a shamefully obvious way.
The good news is that this worker was smart enough to not get pushed around and seems to have easily won their case. The key to winning was his credibility as a witness and the facts of control that were in his favor. Note that they don’t have to control everything, but the more the employer does control, the more likely it is that you are an employee no matter what they say or had you sign.
