Recent news tells us the State of New Jersey is charging Uber $242 million in back taxes and has ruled that they have misclassified their contractors as employees. Once again, the question of who is or isn’t an employee is on the minds of many workers’ compensation attorneys, as well as many who have been classified as independent contractors in the past.
This gives us a timely opportunity to explore other people who perform labor outside of the traditional confines of a regular full or part-time job with benefits.
At first blush it might seem obvious that volunteers should receive protections for their unpaid labor on behalf of the community. Many volunteers certainly do not stop to wonder whether they’re covered by workers compensation. Human nature ensures most of us don’t think about the worst until it happens. It also ensures a sense of trust, a vague idea that if one gets hurt while volunteering they’ll get taken care of because they are doing good.
In reality, the laws surrounding workers compensation and volunteerism are complex, and leave holes an organization could use to avoid responsibility for injuries taken while performing volunteer labor.
In New Jersey, the question that comes up when attempting to classify someone as an employee is whether they receive and expect “consideration” in return for their work.
Consideration does not have to be money. Precedent has established that room and board can serve as consideration, as can education and training. For example, in the 1948 …Read More
The Portable Benefits Act is a proposed piece of legislation which would make it less profitable for companies to misclassify employees. Employers who use 50 or more contractors in twelve consecutive months must contribute funds to a Qualified Benefit Provider. This would be the lesser of $0.25 for every dollar of consumer sales, or $6 per hour worked by each worker, prorated by minute.
Thus, it may be cheaper to go ahead and hire whoever they want to use full time. Or, depending on the number of independent contractors used, it may be less expensive to classify them correctly than it would be to inflate the numbers.
Portable benefits could also open up new protections for the over 127,000 temporary workers in New Jersey. Temp workers are already entitled to worker’s compensation under New Jersey law—the temporary agency is supposed to take care of it. That doesn’t mean they always receive benefits, and often need to look to a law office like this one to protect their rights.
The bill may also open up new opportunities for workers to form unions. Half the makeup of the people overseeing the QBP must be representatives of the workers, according to the bill.
The bill would help gig economy workers carry benefits over from contract to contract; in other words, workers own their benefits. Gig employees would be able to choose one of the qualified providers.
These plans aren’t unheard of. Construction workers often …Read More
When you’re in the middle of a worker’s compensation case it’s vital to know how to navigate your medical care. Certain missteps can cause you to take on medical bills worker’s compensation insurance would have paid.
In a New Jersey worker’s compensation case, your employer and your insurance company can dictate your medical care, including which doctor you see. If you wanted to use your own doctor, or a doctor from a different insurance network, then you’d have to seek prior authorization from the insurance company. Failing to do so can make you responsible for those bills.
The only exception is the ER doctor you receive when you take the initial injury. That doctor can be from any network or hospital and worker’s compensation would still generally be required to pick up that bill.
Thus, you should not see your own doctor for any procedures or tests related to your injury unless you seek prior authorization.
Of course, this may all strike you as a horrible conflict of interest. It often can be. Consider the story of AmCare, the on-site health provider for Amazon.com warehouses. They handle the worker’s on-site injuries, which should all be covered as worker’s compensation insurance. Instead, reports allege AmCare workers repeatedly put people back on the floor who should not have been there. Going to an AmCare clinic did not “count” as reporting an on-the-job industry according to the Amazon/AmCare set-up. AmCare mostly seemed to be engaged in limiting company costs.
Some of the …Read More
If you read “Does Fault Matter in a NJ Worker’s Comp Case,” then you know worker’s compensation generally will not be awarded in cases where an employee gets injured by violating company policy. This usually includes workplace altercations.
However, there are always some exceptions. One exception came up in a case that was decided by the court of appeals earlier this year: Arvind Bhut vs. Aluminum Shapes.
The case was an unusual one. Two employees got into a tense confrontation where, according to the courts, each felt the need to defend themselves from the other. In the course of the conflict, Arvin Bhut injured his shoulder.
The court ruled as follows:
“The judge of compensation found as fact that neither petitioner nor Stevens intended to hurt the other when they encountered each other outside of the locker room. Stevens’s and petitioner’s actions were merely self-protective. Petitioner swung his arm toward Stevens because he believed Stevens was pushing the pizza box into him, and Stevens grabbed petitioner’s arm because he believed petitioner intended to hurt him. As the judge succinctly stated, “[t]he reactions of both Mr. Stevens and the petitioner were in response to what each felt was aggressive behavior.” Because petitioner was injured as a result of an accident that arose out of and in the course of his employment, his injury is compensable under the Workers’ Compensation Act. See N.J.S.A. 34:15-1.”
This case demonstrates that the court can make exceptions for injuries sustained in acts of self-defense. …Read More
In some states, employers and employees can get into protracted battles over whose negligence caused a workplace injury. Not so in New Jersey, which is a no fault state.
This means that in New Jersey, it simply doesn’t matter whether you made an honest mistake which contributed to your injury. You are still entitled to worker’s compensation benefits.
The “no fault” provision benefits employers, too. Employees in New Jersey are barred from bringing a personal injury or negligence suit against their employers. They rely on worker’s compensation instead.
Thus, even if your employer decides to dispute your claim the issues of fact will usually be whether you have a permanent disability, to what degree you’re disabled, and whether you could return to work. In some cases the employer will be disputing where and how you took the injury, claiming it did not happen at work or represents a pre-existing condition they shouldn’t have to cover.
There are a few exceptions.
Employers can deny your claim if they can prove you were injured as a result of willful misconduct, which is different from fault. Willful misconduct covers violations of company policy or “horseplay.”
Safety and Health Magazine offers a good explanation of what might be considered horseplay: rough or rowdy play or pranks, which could involve physical contact, playing around, racing, grabbing, foolish vehicle operation, social pressure to participate in unsafe acts, harassment and unauthorized contests.
Basically, if you were injured while goofing off on the job or blatantly while blatantly …Read More
On August 6 of this year, the governor signed off on the new Wage Theft Law. While this law doesn’t mention worker’s compensation directly, it does draw attention to the fact that employers in New Jersey regularly misclassify workers.
The Department of Labor estimates that over 12,000 employees have been misclassified across the state, and that up to 30% of New Jersey employers engage in some form of employee misclassification.
They do this by claiming employees as independent contractors.
In addition to helping them skirt wage and overtime laws, misclassification makes it easier for employers to skip out on paying worker’s compensation insurance for those employees.
And while New Jersey does have an Office of Special Compensation Funds to help employees who weren’t covered by employers, you may find yourself in the position of having to prove you were misclassified if you wait until you need that money. It may be better to address issues of misclassification now, closing both worker’s compensation loopholes and loopholes which impact your pay.
To discover if you’ve been misclassified, you can use New Jersey’s ABC test.
Under the ABC test, you must meet three criteria to be considered an independent contractor.
- You must be free from the control and direction of the hiring entity. The entity might be able to express preferences from a list of service offerings, but independent contractors work when, where, and how they want. They aren’t penalized if they don’t show up according to an employer’s schedule, nor are they
Often, when people start talking about worker’s comp fraud all the focus is on employees who fake injuries, who fail to disclose pre-existing conditions, or who exaggerate the severity of injuries so they can live off workers comp funds without going back to work.
But employers commit fraud as well. And it’s important to realize that filing a claim against your employer can be to your benefit when genuine fraud exists.
They’ve failed to obtain insurance at all.
This form of fraud exposes your employer to criminal penalties. According to New Jersey Law, they can be sent to jail for up to 18 months and assessed a $10,000 fine.
In the meantime, a fund exists to pay benefits if you are a victim of this kind of fraud, through the Office of Special Compensation Funds.
They’ve classified you incorrectly.
In New Jersey employers must obtain worker’s compensation insurance for part time and short-term employees. They don’t have to obtain it for contractors, though, which inspires many employers to misclassify their employees.
But if your employer is your sole source of income, takes up 40 hours of your time, and controls how you do your work then you are not a contractor and should not be working off a 1099. Get an attorney’s help so you can compel the employer to list you as a full-time, W2 employee. If you’ve already been injured, an attorney can also help show why their policy should be covering you.
They make false or misleading…Read More
Third parties are involved in New Jersey worker’s compensation cases more often than you might think. In fact, one of the jobs your New Jersey worker’s compensation lawyer should be doing is identifying any other third parties who might be involved.
For example, if you were driving for work and got into an accident than the third party would be the other driver. If you were using equipment or products on the job and these items injured you because they were defective, the manufacturer of those products is a responsible third party. If a subcontractor failed to follow a safety process and injured you, then the subcontractor becomes the third party. And if you were injured on someone else’s property while working a job for your employer, then the property owner becomes a responsible third party.
This is actually good news, though it can make your case a little more complicated.
You have the right to sue the third party and you never have to choose.
First, let’s talk about what worker’s compensation does.
It is meant to do three things:
- Get you the medical care you need.
- Provide limited financial support for you and your family members while you’re injured.
- Provide very, very limited compensation for your injuries.
It also protects your employer from lawsuits. You usually can’t sue your employer over workplace injuries, even if your employer was grossly negligent and directly contributed to that injury in some way.
But you always have the right to sue the …Read More
One of the most frustrating things about dealing with worker’s compensation is dealing with the insurer itself. It’s not uncommon for your doctor to recommend a treatment, only to have the insurance company deny coverage for it.
It seems intensely unfair. How can an insurance adjuster, who never went to medical school, look at you and your doctor and tell you that your procedure isn’t “medically necessary?“
Or, how can they say the procedure that’s been proposed has nothing to do with the injury you took on the job, when it’s so clear and obvious that it has everything to do with it?
The problem is, insurers stay in business by looking for every reason to deny coverage they can find. They aren’t really concerned with straightforward common sense or fairness. They’re concerned with making a case that allows them to avoid payment.
They may agree to cover a lesser or less effective treatment, or they may deny coverage altogether. Fortunately you have some recourse. You can appeal this decision, and there are ways for you to get treatment in the meantime.
Step 1 – Gather Documentation
Go back to your doctor and have him or her provide full documentation as to why he or she believes this procedure is medically necessary. You’ll need this to refute the insurer’s claim.
Step 2 – Bring the Matter to Your Lawyer
Your lawyer can make a claim on your …Read More
Workman’s compensation fraud is serious. It is a crime, and it carries steep penalties.
And this form of fraud does, in fact, happen. So does a form of fraud perpetrated by employers, who fail to obtain or maintain adequate workman’s comp coverage. But there are simple mistakes that good, honest workers make when they are dealing with workman’s comp that can get them accused of fraud, even if all their actions were innocent.
#1) Failing to report changes in employment status.
“Misrepresenting your job status while collecting disability benefits” is one of the first definitions of workman’s comp fraud in the statute as written. Any change in work status must be reported both to your employer and to the insurance company.
This could mean taking on a new position with your old employer, doing some light duty “gig” work while you’re recovering, or taking on a new job. Do not assume either party knows you’ve made a change.
You may be reluctant to do so, fearing the loss of benefits which are keeping you afloat. The new job or job status change may not cover all your bills. Just remember some coverage may still be available to you after you start any form of work again. You won’t be afloat if you get charged with fraud, either, so …Read More