Not all workers are eligible for Workers’ Compensation benefits in New York. With several exceptions, you must be an employee not an independent contractor. There are several factors that are considered when determining whether a worker is an employee or independent contractor.
Even if you are classified as an independent contractor you may still be covered by Workers’ Compensation. A worker may still be considered an employee even if their contract states that they are an independent contractor or receives a 1099.
The factors that are considered when determining whether a person is an employee or independent contractor are:
• Right to control: When a worker is under the control of the business, they are more likely to found to be an employee. The hours worked and manner in which work is done are two examples of how an employer controls his or her employees.
• Character of work: If the kind of work done by the worker is the same as performed by the business they are more likely to be found to be an employee. For example, a worker hired by a roofing company to install shingles is more likely to be an employee than the worker who is hired to prepare the roofing company’s taxes.
• Method of payment: Workers that are paid on an hourly, daily, monthly or yearly basis are more likely to be considered employees that workers who are paid for item of work performed.
• Furnishing equipment/materials: When the business provides the equipment necessary to perform the work the worker is more when business provides the equipment it is indicative of being employee.
• Right to hire/fire: If the business has the authority to hire and fire the worker they are more likely to be found to be an employee.
Sole proprietors or worker partners in partnerships are not considered employees under workers’ compensation. However, these individuals can obtain a Workers’ Compensation policy if they want to be covered under Workers’ Compensation.
The New York State Legislature has provided special coverage for certain groups employees. The New York Jockey Injury Compensation Fund provides coverage for horse racing jockeys. Hereford Insurance provides coverage for yellow medallion taxicabs. The New York Black Car Operators Injury Compensation Fund provides coverage for many “black car” non-medallion taxicabs while other independent livery drivers are considered independent contractors and not covered by Workers’ Compensation. Whether or not your base is covered can be found on the New York State Workers’ Compensation Board’s website.
Certain real estate agents, insurance agents and brokers, and media sales reps may also be considered independent contractors if stated in their contract.
Other workers who are employees are also not covered by New York State Workers’ Compensation are:
• Federal, Railroad, New York City Police, Fire, and Sanitation workers are covered by separate compensation systems. Police Officers and Firefighters of other municipalities may also be covered by other provisions
• Volunteers at non-profit corporations
• Clergy members in performance of their religious duties
• Some members of amateur athletic organizations
• Workers engaged in non-manual work for non-profit organizations
• Individuals receiving aid from charitable organizations who perform work in exchange for that aid
• Some employees of foreign governments and Native American Nations
• Family members of performing farm work who are not under contract
• Workers doing casual yard work or chores in a single family, owner occupied home or non-profit organization
If you have additional questions about whether or not you are eligible for Workers’ Compensation benefits our attorneys and paralegals are happy to assist you.