“Independent Contractors” Often Are Actually “Employees” in PA Workers’ Comp

A recent post on Workers’ Comp Insider, a blog devoted to workers’ compensation cost control, explores the problems being faced by FedEx and its workers. FedEx has managed to avoid having its workers join a union, by classifying them instead as “independent contractors” rather than “employees.” The blog entry points out that this arrangement may be on the way out, given the potential impact of a Democrat-controlled congress. Note was also made that State Courts have frequently found the FedEx drivers, who wear FedEx uniforms and drive FedEx trucks, to be “employees,” regardless of how they are described by FedEx.

This points out an important fact, one that may not be known by every injured worker – just because an employer terms its workers “independent contractors” does not make it so. In fact, for Pennsylvania workers’ compensation purposes, a Workers’ Compensation Judge (WCJ) will examine many elements of the relationship between the injured worker and the employer. How that relationship is described, and whether they are called “employee” or not, is only a minor factor.

The most important factor in determining whether an injured worker is truly an “employee” in PA is the degree of direction and control held by the employer. For example, is the employee told what to do and how to do it, or does the employee make these decisions on his or her own. Even if this control is not actually exercised by the employer, Pennsylvania Courts have found its mere existence proof enough.

Other factors include terms of agreement between the parties, the nature of the work or occupation, skill required for the performance of the work, whether one is engaged in the regular business of the employer, whether payment is by the time or by the job and also whether employer has the right to terminate the employment at any time.

Though this issue may be most common in the setting of a delivery driver, it is hardly limited to that situation. We have seen this issue arise in the construction industry, in nursing and healthcare, in auto-service positions and in teaching and coaching. These complicated elements in a Pennsylvania workers’ compensation case once again highlight the importance of having a lawyer who is experienced in PA workers’ comp matters.