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Workers’ Compensation : Part 1: Employee or Independent Contractor


Worker’s Compensation: Employer or Independent Contractor in the Context of Construction Work

One of the many Workers’ Compensation issues we are faced with here at Malek & Malek is whether an injured worker is classified as an employee or independent contractor. If classified as an employee, then you are eligible to receive workers’ compensation benefits under your employer’s workers’ compensation policy. As an independent contractor you are required to have your own workers’ compensation coverage.

The employee/independent contractor classification issue often arises in the context of construction work. R.C. § 4123.79(C)(2) defines a construction contract as:

any oral or written agreement involving any activity in connection with the erection, alteration, repair, replacement, renovation, installation, or demolition of any building, structure, highway or bridge.

Under R.C. § 4123.01(A)(1)(c), an employee is a person who performs labor or provides services pursuant to a construction contract if he meets ten or more criteria out of a total of twenty. The criteria focus on who had the right to control the manner or means of doing the work. More control tends to suggest a worker is an employee, less control tends to suggest a worker is an independent contractor.

How this Issue Plays Out at the BWC and IC

Typically at the beginning of the life of a worker’s BWC claim, a construction employer will complete a questionnaire consisting of the twenty criteria. The employer/general contractor will answer either “yes” or “no” to each question. The questionnaire is set up in a way that if 10 or more of the answers are “yes” then a worker is classified as an employee, but if 11 or more of the answers are “no” then a worker is classified as an independent contractor. In addition, the injured worker’s attorney may have the worker submit an affidavit with the same twenty questions, and that worker’s response.

Where there is a dispute as to a worker’s classification, the BWC refers the issue to the Industrial Commission. The Hearing Officer will use the testimony of the employer, the injured worked, and the completed questionnaires to make his determination.

In the coming days and weeks we will be posting five criteria at a time with accompanying examples.

EXAMPLE Independent Contractor/Employee Questionnaire:

Independent Contractor/Employee Questionnaire