Misclassification of employees as independent contractors by employers is a problem in Texas and the rest of the country. Employers do this to deprive workers of benefits, such as health insurance and paid time off, and to limit their liability for compensating workers who are hurt on the job. If you work for a non-subscriber employer who has opted out of providing workers’ compensation benefits and suffered a workplace injury, you cannot assume that you are an independent contractor just because that is what your employer calls you. You may truly be an employee who is entitled to compensation from your employer for your injuries.
Factors Considered Under Texas Law to Determine Whether an Employee Is an Independent Contractor or Employer
Under Texas law, employers have a duty to properly classify their workers. The three essential elements that define a worker as an employee are service, wages, and direction and control. In addition, Texas uses 20 factors as guidelines to determine whether a worker is an independent contractor or employee. Some of these factors include the following:
- Instruction. An employee is given instruction on when, where, and how his work is to be performed. An independent contractor does the job his own way with few instructions.
- Training. An employer will train employees and may require them to attend meetings and periodic training courses. An independent contractor receives no training from the purchaser of his services.
- Integration. An employee’s services are usually integrated into the employer’s overall operations whereas an independent contractor's services are separate.
- Personal service. An employee provides his services to his employer personally. An independent contractor may hire his own employees to perform the work under his contract.
- Supervisors. An employee who is a supervisor may hire or supervise other employees, but they are paid by an employer. An independent contractor pays his workers himself.
- Continuing relationship. An employee continues to work for the same employer over time. An independent contractor fulfills his contractual obligations and then moves onto working on new projects with other companies or individuals.
- Hours of work. An employer sets the hours of work for an employee, whereas an independent contractor schedules his time for performing his contract.
- Location. An employee must work at a location set by the employer. An independent contractor chooses where he will perform his services.
- Payment. An employer will pay its employees on a regular schedule whereas an independent contractor is paid for the job.
- Travel and business expenses. Independent contractors generally pay their own travel and business expenses. Employers pay or reimburse employees for these job-related expenses.
- Tools and equipment. An employer will supply tools and equipment necessary for employees to perform their job duties but does not supply them to independent contractors.
If you were injured on the job and your employer is trying to claim that you are not an employee, you need an experienced workplace injury attorney who can determine if your employer is misclassifying you. He can also help you obtain the compensation you deserve from your non-subscriber employer. Contact us online or call us directly at 817.380.4888 to schedule a free consultation and learn about your legal rights and options.