Published by J.A. Davis & Associates – San Antonio Personal Injury Lawyers – Workers’ Compensation

Workers’ Comp: Preparing Your Case For Court

Are You Really an Employee, Legally?

This is a very important question to answer before beginning your case. In Texas, the law states employers are not obligated to keep the workplace safe for contractors, volunteers, or temporary employees. Consequently, many employers rely on only these types of workers so they can save on insurance costs, safety upgrades, and maintenance, and to avert potential liability. The logic they rely on is simple. Why should they be responsible for your injury, when you, technically, were never their employee? Yet legally, even though an employer refers to you as a “contractor,” and even when you have a signed related contract, that doesn’t necessarily mean that you are not a true “employee”. It’s not set in stone. More about our “Workers Compensation Lawyer San Antonio” here

Then to complicate the issue, Texas law doesn’t provide clear guidelines for determining employee status from a civil liability standpoint. Your attorney has to refer to previous rulings by the judge, called “case law,” to determine whether a worker is an employee or a contractor. Fortunately, case law in Texas is clear on this point: in terms of civil liability, an employer-employee relationship is determined not by your job title or a contract, but by your actual working relationship with your employer. You still may be able to recover from your employer, even if you were hired as a contractor or a temp worker if you can show the existence of an employer-employee relationship at the time of your injury. Some of the factors used to determine whether you are an employee or contractor are listed below:

If you are an employee, your employer withholds taxes or social security from your check.
If you are an employee, you are paid by the hour or on salary rather than on completion of a job or project.
If you are an employee, the employer sets your work schedule, (if you determine how much time is spent on each project, and can devote as much or as little time you want to a project, then you are a contractor; if the employer determines the amount of time devoted to a project, then you are an employee.
If you were hired for an indefinite period of time, as opposed to just completing a specific task or project, then you are an employee.
If you are an employee, the employer provides the materials and equipment you need for your job. If you are responsible for providing your own tools and equipment, then you are a contractor.
If you are an employee, you signed a document, like conditions of employment, an employee handbook, or a confidentiality agreement, which limited your legal rights relating to the job.
If you took a mandatory drug test, you are an employee
If you are an employee, the employer supervises, directs, and inspects you and your work as you do your job or examines your project at various stages of completion. If the employer only looks at the finished product, you are a contractor.

The employer can hire or fire you at any time if you are an employee.

If the employer can select a particular worker for a job, then that worker is an employee (if an agency can send over any worker it wants, then the worker is a contractor).
You are a contractor if you work for many different clients, rather than for a single company. For example, if a computer technician works for many different clients on different projects, he is a contractor; if he only works for an accounting company only, then he is an employee.
If an agency lending a worker can substitute another worker at any time, then the worker is a contractor.
If an employer “borrows” a worker for a particular skill set (for example, a framing company borrows an expert woodcarver from a furniture manufacturer for a special framing project), then the worker is a contractor. If, however, an employer “borrows” a worker to fill a position that virtually anyone could fill, then that worker is an employee.
As clearly seen in the examples above, the line between employee and contractor is not always completely clear-cut. The court usually looks at several factors in conjunction to determine whether such a relationship existed. The burden of proof to prove an employer/employee relationship existed at the time of your injury will rest upon you in court. Proving this relationship existed when you were injured is a complicated process requiring some intricate legal thinking.

Many attorneys do not have a grasp of how to prove this relationship, so for a layman, the task is even more difficult. To establish this relationship and obtain compensation for your injury, you need to hire a competent, experienced legal professional who understands how to prove you were a legal employee under the State of Texas laws. Even if you’ve been turned down by another attorney and told that you don’t have a case, call the non-subscriber work injury attorneys of our Law Office for a free consultation. On many occasions, we have won cases for contractors and temporary workers when other law firms turned down their cases. We’ve been handling claims similar to these for twenty years. Even if you were called a temp worker or a contractor, we can help you show the existence of the employer/employee relationship so you can receive compensation from your employer for your injuries.