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Has your employer classified your job correctly?

At dinner some night, try to find out how much your companions' know about workers' compensation. Chances are that they know workers' comp covers work-related injuries or occupational diseases. And chances are that they know that fault makes no difference. Workers' comp is not like property insurance: If you slip and fall at your local grocery store, the insurance company will want to know if you were responsible for the accident. Slip and fall at work, though, and responsibility -- that is, fault -- is not a factor.

Ask, too, if workers' compensation applies to everyone who works for a company. If they answer yes, you have a teachable moment. The answer is: Not always.

Workers' compensation covers employees but not independent contractors. While it looks like a bright line, it isn't. It is not easy to tell the difference. And, unfortunately, lawmakers sometimes add to the confusion.

In Illinois, for example, the Employee Classification Act went into effect on Jan. 1, 2008, and the act specifically addresses the difference between employees and independent contractors. Don't get your hopes up, though, because the act only applies to construction contractors and subcontractors.

The Illinois Workers' Compensation Act provides a long definition of the term "employee." (820 Ill. Comp. Stat. Ann. 305/1) One part in particular shows just how broadly the state construes the term: "Every person in the service of another under any contract of hire, express or implied, oral or written" qualifies as an employee under the act.

Broadly construed, yes, but not all-inclusive. Claims are still denied because the worker is classified as an independent contractor. State law dictates that each case be weighed on its own merits, that each employee/employer relationship be examined as a whole, not against a checklist.

In our article Employee misclassification affects Illinois workers’ compensation benefits, we talked about one approach -- a test, of sorts. There are four factors that, taken as a whole, can help to classify an employee correctly:

  • Who had the right to control how work was completed
  • How was the worker paid
  • What skills were required to complete the work
  • Who provided the tools, materials and equipment

At dinner with your friends, then, ask if they can identify some characteristics that are unique to independent contractors. Find out if they understand how their employers have classified their jobs, and if this four-factor analysis would come up with the same classification.

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