Employee? Independent Contractor? | Know the Difference

There is a difference between being an independent contractor and an employee. Of course there are more obvious differences such as whether there are any deductions taken out from a check and who negotiates contracts, but these different classifications could also significantly affect your rights if you are injured on the job. On occasion, employers attempt to classify their employees as independent contractors because they want to avoid paying workers’ compensation insurance, taxes, and being responsible under other labor laws.

In Arizona, employers are not required to provide workers’ compensation insurance for independent contractors. That said, just because an employer tells you that you are classified as an independent contractor does not necessarily mean you are an independent contractor under Arizona workers’ compensation laws. Even if your employment contract states that you that you are classified as an independent contractor, you may still be entitled to workers’ compensation benefits in Arizona. A lot of the time, workers do not know or understand the difference between being an independent contractor or an employee. Frankly, the employers often do not know either. There is no bright line rule or one test that is used to make that determination.

In Arizona, courts will look at the situation as a whole to determine whether a worker is classified as an independent contractor or an employee under the workers’ compensation act. Courts normally consider the employer’s right to control the worker. The language of the employment contract is not the only consideration either; courts consider the facts of the individual situation. Keep in mind that courts make the determination on a case-by-case basis.

Having the status of an employee, and not of an independent contractor, is important because if you are an employee, the employer is required to have workers’ compensation insurance, which would provide you with workers’ compensation benefits. This means that if you get hurt on the job, the employer may be held responsible for the economic losses associated with your injury. An employee can recover against the employer under workers’ compensation, and usually does not have any other form of relief.

If you are considered an independent contractor, you still may be entitled to some form of relief from the employer. Independent contractors may not be entitled to workers’ compensation benefits, but are able to bring a civil action against the employer. Although the employer is not required to provide workers’ compensation insurance for independent contractors, workers can cover themselves on a

Briana E. Chua, Esq.

workers’ compensation policy. Generally, self-coverage is a good alternative for independent contractors. If you are in a situation where you have to choose between being classified as an employee or an independent contractor, consider the cost of workers’ compensation coverage before deciding.

If you were hurt on the job, you may have questions regarding the classification of your employment and what steps you need to take. The experienced and knowledgeable attorney’s at Taylor and Associates, PLLC are ready to answer your questions. Contact us at info@injuredworker.com or by phone at 1-800-358-CATS (2287).

Attorney Advertising. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Harassment at Work & Filing a Claim: Should I or Shouldn’t I?

Workers' Comp in AZ | Returning to Work | Harassment Upon Returning to Work

It is completely understandable for someone to be hesitant when thinking about filing a workers' compensation claim. Many times the first thoughts in our head when we are injured at work can be: Will I lose my job? Can they fire me? Can my boss afford to pay a workers’ compensation claim? What about my upcoming retirement date (or promotion)?

You have every right to file a workers’ compensation claim after you sustain a job-related injury. If your employer refuses your claim for benefits, your employer should follow the AZ workers’ compensation rules for review. Harassing or retaliating against you is not a legal option. In fact, your employer may be held accountable for such acts under:

•        Arizona Title 23 labor laws 
•        Civil Rights Act
•        Americans with Disabilities Act (ADA)
•        Family and Medical Leave Act (FMLA)
•        Etc.

These state and federal regulations prohibit your employer from making employment decisions based upon your decision to file a workers’ compensation claim or upon your resulting disability. For example, your employer may be held liable for:

•         Firing you
•         Cutting your wages or hours
•         Re-assigning you to a less desirable shift or project
•         Passing you over for a promotion
•         Denying health insurance and other benefits
•         Tolerating harassment by your coworkers

My Coworkers Are Harassing Me!!!

Your colleagues may not have the authority to fire you, but they can make your workday miserable. Because disability harassment is unlawful, your employer may be exposed to liability for failing to stop the offending conduct.

An isolated minor incident or a one-time offhand comment is not likely to meet the threshold for harassment. However, frequent episodes or a serious event can rise to the level of harassment, as can:

•         Making cruel remarks to you about your disability
•         Cracking jokes or calling you names
•         Posting photos, drawings or other offensive depictions of your disability
•         Playing pranks based on your disability
•         Purposely interfering with your ability to perform work
•         Starting rumors that you faked your work place injury or illness

If you are the victim of workers’ compensation or disability harassment, take steps to protect yourself. Make sure you document the dates, times and details of the harassing behavior. Many times the saying “it’s not what you know, but what can you prove” (Denzel Washington as Alonso Harris in the movie Training Day) is true. Valuable evidence is crucial to prove your case in an administrative proceeding or a civil lawsuit.

Discuss your options with an attorney in good standing with the state bar, many times having an attorney at your side early in the game can make all the difference.

At Taylor & Associates, PLLC, our workers’ compensation and disability lawyers evaluate your case to determine the most appropriate course of action. We may advise you to file a complaint against your employer to the:

•         Equal Employment Opportunity Commission (EEOC)
•         Arizona Civil Rights Division (ACRD)
•         Industrial Commission of Arizona (ICA)
•         Civil court

Meet Bruce Rosenberg, Esq.

Bruce practices exclusively in the areas of Workers’ Compensation and Personal Injury. He is also a trained mediator, serving as a volunteer for the Mediation Center of Yavapai County and the Prescott Justice Court, mediating disputes of all kinds. He is a Prescott resident, serving Taylor and Associates clients across the state of Arizona. Bruce received his Bachelors degree in broadcasting from Arizona State University, before going on to receive his J.D. from the Arizona State University College of Law. Bruce is an adjunct faculty member at Yavapai College in Prescott. Bruce is a past President of the Yavapai County Bar Association and currently serves on the Board of Directors of Habitat for Humanity.

Contact Mr. Rosenberg on the web at www.InjuredWorker.com or by phone at 1-888-650-4798 for your free consultation.

Attorney Advertising. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Professional Athletes and Workers’ Compensation

 Did you know that professional athletes and even some retired professional athletes may be eligible for worker’s compensation benefits?

Workers compensation is a "no fault' system of insurance that provides you with certain benefits in the event you have a job-related injury or illness. If you work as an athlete for a team, and you are injured while playing for that team, you were most likely injured at work. “No fault” means that even if you or a co-worker was negligent in causing your injury (A 300lb. 6’5’’ Linemen Tackled me), you're still covered. Depending on your circumstances, you may be eligible for:

·         Compensation for your medical expenses,

·         Temporary or permanent compensation for lost wages, and/or

·          Job retraining

Arizona workers’ compensation laws consider the following to be job related:

·         Injuries or illnesses that result in the immediate onset of symptoms,

·          Injuries or illnesses that result in delayed symptoms that may not appear for days, weeks or months after the incident,

·          Medical conditions that developed "gradually" over a period of days, months or years as a result of work-related activity,

·          Preexisting medical conditions aggravated by a specific accident at work or a "gradual" aggravation caused by work-related activities over a period of days, months or years[i]

 

THE GAME HAS CHANGED: Arizona Cardinals Fullback Must Play Out Workers’ Comp Claim On His Home Field

Workers’ compensation benefits are available in each state, but the process and potential benefits usually differ. Some states, like California, are known to have more liberal workers’ compensation laws that allow for more claims by including more categories of covered injuries and illnesses. But, because of recent decisions such as the case of McKinley v. Arizona Cardinals and California AB 1309[ii] things have changed. ^[iii]

In Arizona, it is mandatory for an employer to carry workers compensation insurance. A resident of Arizona who works for an Arizona business would file their workers’ compensation claim in Arizona. However, this has not always been the case for professional athletes.

NFL, MLB and NBA players have often sought to file workers’ compensation claims in California “including Earl Campbell, Deion Sanders and Tony Dorsett,” even when they did not live or play there.  You see, “California is one of only a handful of states to recognize cumulative trauma, a category of injuries that are incurred over time.”



Sports and Workers' Compensation

The case of the former Cardinals fullback

Dennis McKinley is a former running back with the Arizona Cardinals who played a few seasons for the team after being drafted in 1999. He filed a workers’ compensation claim in California relating to injuries he sustained while playing for the Cardinals. He was one of many NFL players to argue that the few games or practices he had in California entitled him to file his claim for wear-and-tear injuries. The Courts disagreed, citing McKinley’s contract which required his workers’ compensation claims to be brought in Arizona.[iv] At about the same time the California Supreme Court refused to hear the appeal of the McKinley case, California itself passed a new law that prevented professional athletes from other states from filing claims in California.

Workers’ compensation claims in professional sports

It appears baseball players with the Diamondbacks and football players with the Cardinals will have to bring workers’ compensation claims in Arizona or in other states where they played for the home team. Due to the physical nature of professional sports, there is no shortage of work-related injury claims made each year, and the benefits paid can be very high when you consider they are based on the player’s salary. However, there are often disputes as to whether the particular injury fits into the workers’ compensation schedule, so as to be covered. Professional sports injuries include:

·         Debilitating injuries that get worse over time and may shorten a career

·         Concussions and other neurological damage 

·         Physical injuries that force the player to miss significant playing time and also impact their future ability to perform, such as torn ligaments in the knee or a rotator cuff injury to a shoulder

If you were hurt on the job, you may have many questions regarding what steps you need to take next. The experienced and knowledgeable Arizona Workers’ Compensation attorneys with Taylor and Associates, PLLC are ready to answer your questions. Contact us at info@injuredworker.com or by phone at 1-800-358-CATS (2287)

 


Dennis Kurth practices in the area of Workers’ Compensation and is a Certified Specialist by the State bar of Arizona. He graduated from Washington University School of Law in St. Louis. Dennis co-authored the 'Exclusivity and Third Party Liability' chapter of the Arizona Worker's Compensation Handbook (1992). He was a member of the Workers' Compensation Advisory Commission to the Arizona Board of Legal Specialization and was Chairman of the Advisory Commission from 1987 to 1994. Dennis has been recognized in Best Lawyers in America. In his spare time Dennis’ favorite pursuits are adventure travel, rafting, biking and hiking.

 

 












Attorney Advertising. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

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[i] http://www.injuredworker.com/aop/arizona-workers-compensation

[ii] http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1309

[iii] http://www.latimes.com/business/money/la-fi-mo-governor-athlete-workers-comp-20131008,0,7152629.story#axzz2wFB573Tr

[iv] “Mr. McKinley had a limited connection to California, and a forum selection and choice of law clause in the parties' employment contract.”

DENNIS MCKINLEY, PETITIONER, THE WORKERS' COMPENSATION APPEALS BOARD OF THE STATE OF CALIFORNIA, ARIZONA CARDINALS AND TRAVELERS INDEMNITY FOR GULF INSURANCE, RESPONDENTS., Case No. ADJ 7460656, 2013 WL 4442066 (A.F.B.R. Feb. 27, 2013)

 

Sometimes, Waiting is the Hardest Part: Social Security Disability Insurance

Sometimes, Waiting is The Hardest Part

“Lost time is never found again.” — Benjamin Franklin

Each paycheck you earn is reduced by deductions for Social Security taxes. These taxes are used to fund Social Security Retirement and Disability Insurance (SSDI) so that workers will still have steady incomes if they are disabled because of an illness or injury. The problem is that applicants in Arizona and across the country often wait so long until they finally are approved for SSDI that the bills pile up and other negative consequences occur — and the benefits of SSDI are too little, too late.

The wait time for SSDI in Arizona

The number of people applying for SSDI has increased in recent years, with about 8.9 million people currently receiving federal disability benefits. However, as reported by USA Today, there is a long backlog, with an average wait time in Arizona of more than 10 months. That leaves about 8,900 Arizona applicants waiting for their SSDI hearing, out of about 750,000 nationwide. There are many reasons for the long wait times, including:

·         Most SSDI applicants are initially denied by the local Disability Determination Services, leading to a lengthy appeals process including hearings before a judge.

·         There are many older “baby boomer” workers who are more likely to become disabled.

·         Many workers with illness that were fortunate to have work accommodations were unable to find work with accommodations after  economic recession  lay offs.

While the long wait and grueling process can take its toll, the Social Security Administration has been making strides to lessen the wait by adding staff and allowing for more electronic verification. Having a qualified Arizona Social Security attorney with you from the start is still the best option for receiving the benefits you deserve — when you need them.

Mary Kay Fowler is a Social Security disability attorney at Taylor and Associates, PLLC with more than 25 years of experience as a Registered Nurse in a variety of healthcare environments including medical-surgical, cardiovascular, and intensive care. She states, “I went to law school so I could advocate for my patients healthcare needs. Taylor and Associates allows me to do that as a Social Security Disability attorney.”



The caring and skilled Social Security disability attorneys at Taylor and Associates, PLLC work tirelessly to help clients document the medical evidence and prove you have a qualifying disability, from the initial application to appeals and hearings, if necessary.




Attorney Advertising. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
     
 

Phoenix’s largest workers’ compensation law firm volunteers their services to the families of the Yarnell Hill forest fire

Taylor and Associates, PLLC: Phoenix’s largest workers’ compensation law firm volunteers their services to the families of the 19 members of the Granite Mountain Interagency Hotshot Crew of the Yarnell Hill forest fires for help on any issues for the workers’ compensation claims.

                                 
However, on December 4^th, 2013 the Arizona Division of Occupational Safety and Health (“ADOSH”) fined the Arizona Forestry Division $559,000.00 for violating workplace safety regulations which also includes $25,000.00 for each of the families of those 19 members lost that day.

In an investigation conducted by the Wildland Fire Associates, a non-profit organization, it has been concluded that (as reported in part):

·         FIRE BEHAVIOR WAS EXTREME AND EXACERBATED BY THE OUTFLOW BOUNDARY ASSOCIATED WITH THE THUNDERSTORM (which caused the fire). THE YARNELL HILL FIRE CONTINUALLY EXCEEDED THE EXPECTATIONS OF FIRE AND INCIDENT MANAGERS, AS WELL AS THE FIREFIGHTERS.

·         ARIZONA STATE FORESTRY DIVISION FAILED TO IMPLEMENT THEIR OWN EXTENDED ATTACK GUIDELINES AND PROCEDURES…

·         THE INCIDENT MANAGEMENT DECISION PROCESS FAILED TO RECOGNIZE THAT THE AVAILABLE RESOURCES AND CHOSEN ADMINISTRATIVE STRATEGY OF FULL SUPPRESSION AND ASSOCIATED OPERATIONAL TACTICS COULD NOT SUCCEED…

·         RISK MANAGEMENT WEIGHS THE RISK ASSOCIATED WITH SUCCESS AGAINST THE PROBABILITY AND SEVERITY OF FAILURE. ASFD FAILED TO ADEQUATELY UPDATE THEIR RISK ASSESSMENT …^[i]  

As a result of the investigations, the Arizona State Forestry Division (“ASFD”)has been cited for violating A.R.S 23-403 (A) “Willful Serious”, an Arizona OSHA statute

The [ASFD] did not furnish each of [the firefighters] employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to their [firefighters]…. [Furthermore], When the ASFD knew that suppression of extremely active chaparral fuels was ineffective and that wind would push active fire towards non-defensible structures, firefighters working downwind were not promptly removed from exposure to smoke inhalation, burns, and death.^[ii]

 And, A.R.S. 23-418.01 the“[a]dditional penalty for willful or repeated violation causing employee permanent disability or death covered by workers' compensation….” The additional penalty spoken of is $25,000.00 which is to be given to the dependents of the fallen firefighters or the estate of those that died, who did not have dependents.

For the full press release click here.

Arizona firefighters are a vital part of our community. They risk their lives day in and day out to protect our homes, our families, and us. Serving Arizona’s injured workers since 1975, Taylor and Associates, P.L.L.C. currently works closely with many fire departments and individual firefighters and is offering free representation for those families affected by the Yarnell fire on any worker compensation claims. 

Our attorney Weston Montrose, a certified workers’ compensation specialist by the State Bar of Arizona, was previously a staff attorney for the Arizona Industrial Commission and has prosecuted O.S.H.A violations for Arizona Division of Occupational Safety and Health (“ADOSH”).

Procedure= settlement possibility, hearing before Industrial Commission of Arizona (“ICA”) Administrative Law Judge (“ALJ”), appeal to OSHA review board.

                                                                                                                                                       Contact: Taylor and Associates, P.L.L.C at www.injuredworker.com or by phone at 1-800-358-2287

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[i] O'Brien, Dan, Elizabeth Anderson, Barry Hicks, Dave Larsen, and Darrell Schulte. United States, Arizona. Arizona Division of Occupational Safety and Health. Granite Mountain IHC Entrapment and Burnover Investigation: Yarnell Hill Fire - June 30, 2013. Wildland Fire Associates, 2013. Web.

[ii] Industrial Commission of AZ Division of O.S.H.A. Citation and Notification of Penalty, Inspection No. L3419-317242683, Issuance Date: 12/05/2013.

Attorney Advertising. This blog site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.