Many businesses employ people in a variety of capacities, and the use of independent contractors in business is nothing new. Employers often use service providers on an as-needed basis to accomplish certain tasks on a regular basis, and the internet has created a “gig economy” that has significantly altered the employment landscape. More than ever, it is easier for employers to outsource tasks that were once handled by in-house employees, often blurring the line between true employees and independent contractors – especially when these contractors develop an ongoing relationship with a business.
The Weisblatt Law Office guides and consults businesses in employment and labor matters throughout Texas. For pertinent counsel related to employees and independent contractors, contact our office for a consultation. Call (713) 666-1981 today.
Employers’ Duties Toward Employees
Employers have certain responsibilities to their employees and also can incur liability for their misconduct. For this reason, it is critical for anyone who hires others to do work for them to ensure that they take steps to prevent what they intend to be an independent contractor relationship from unintentionally turning into an employer-employee relationship. Here are some of the specific issues that can arise if what you think is an independent contractor is actually an employee:
Liability For Employee Negligence
Under a legal doctrine known as respondeat superior, employers can be liable for the tortious acts of their employees that occur during the performance of their ordinary duties – but not for the negligence of an independent contractor. For example, if a doctor at a hospital engages in medical malpractice that injures a patient, one of the most important questions to answer is, “Was the doctor an employee or an independent contractor?” If an employee, the hospital or clinic that employs them could be held vicariously liable.
Another example would be a delivery driver who causes a wreck due to negligent driving of some sort. If the delivery driver is an independent app-based driver, there might be no vicarious liability for the delivery company. However, if they are an employee, there may be vicarious liability for the business.
Employment Law Obligations
In most cases, certain legal obligations are triggered the moment a person becomes an employee. For example, employees are typically entitled to overtime pay for any hours worked in excess of 40 in a given week. Similarly, while independent contractors are exempt from the protections of the Family and Medical Leave Act (FMLA), employees are not.
Worker Accident Injuries
Whether a worker is an employee or an independent contractor can factor heavily into the consequences and repercussions of work injuries. If an independent contractor is negligent at a worksite and harms themselves, they can’t go after the employer for compensation. However, if an employee is injured while performing their duties, the company may be required to provide workers’ comp benefits.
Workers’ comp benefits are provided without regard to negligence. In other words, a negligent employee who harms themselves can recover benefits. However, if the negligent worker is not an employee but an independent contractor, no coverage exists. Keep in mind that Texas employers are not required to carry workers’ comp, but many do.
Clients of the Weisblatt Law Office enjoy personalized legal counsel directly related to their unique circumstances.
How Do You Prevent an Independent Contractor from Becoming Classified as an Employee?
Protecting Your Business
As the discussion above should make clear, it is essential for employers to take steps to ensure that the people they hire as independent contractors remain classified as such. So, how is this accomplished? Under Texas law, the primary factor that determines the classification of a person who has been hired to perform is the amount of control the employer exercises over the work performed. Very generally speaking, independent contractors retain control over when, where, and how the work is done. On the other hand, in an employer-employee relationship, the party purchasing the services performed has the right to direct the person working, both as to the final results and how, when, and where the work is actually performed. Importantly, it does not matter whether such control is actually exercised, but rather that the employer has the right to exercise it.
Call The Weisblatt Law Firm Today to Speak with a Houston Business Attorney
Get Pertinent Guidance
If you are hiring people to help you with your business, it is imperative that you speak to a lawyer as soon as you can. Attorney Andrew Weisblatt has been practicing law in the state of Texas for more than 25 years and understands how to help employers develop policies that prevent independent contractors from inadvertently becoming employees.
To schedule a case evaluation with Mr. Weisblatt, call our office today at (855) 286-9754 or send us an email through our online contact form.
If you would like a case evaluation, please contact us at (713) 666-1981. Discuss your matters with an experienced Houston business attorney who cares about your success. Call or email today. You can also reach us through our online contact form.
Attorney Andrew Weisblatt
Mr. Weisblatt has practiced continuously since becoming licensed in 1992 and has represented businesses ranging in size from one person start-up ventures to multi-national corporations employing hundreds of people in multiple countries. From 2005 through 2009 Mr. Weisblatt was in-house counsel and chief operating officer of a multi-national corporation in the steel products industry. That in-house position provided valuable insight into how businesses work and what they actually need from their lawyers – both in-house and outside counsel. Attorney Bio
