GREY & GREY
GREY & GREY WINS TWO CASES
Last month, we wrote an article about the difference between employees and independent contractors, pointing out that only employees are covered by the Workers’ Compensation Law. (You can read that article at https://greyandgrey.com/who-is-covered-by-workers-compensation/).
One of the points we made in the article was that the question of whether someone is an employee or an independent contractor is decided on a case-by-case basis by the Workers’ Compensation Board based on the particular facts about the employment relationship. An employer’s decision to call someone an independent contractor, or even a signed agreement saying so, is not binding for workers’ compensation purposes.
Since then, we’ve proved that point in two different cases. In one case, our client was a performing artist who had created her own production company for tax purposes. The theater paid the production company (of which our client was the sole employee), had her sign an agreement stating that she was an independent contractor, and gave her a 1099 form instead of a W-2.
However, the theater had the right to hire and fire our client, set the rehearsal and performance schedule, and provided the set, the script, the costumes, and the music for the performance. In addition, the Workers’ Compensation Law includes a specific provision providing that performing artists are employees of the “television or radio station or network, a film production, a theatre, hotel, restaurant, night club or similar establishment” they are engaged by unless they are “stipulated to be an employee of another employer covered by” the Workers’ Compensation Law.
Based on the employer’s degree of direction and control over our client, as well as the fact that her production company was not required to be covered by workers’ compensation, the Board agreed with us that she was an employee, not an independent contractor – and therefore covered by the theater’s workers’ compensation insurance.
In another case, our client was a home health care aide who was hired to care for an elderly person by her daughter. A Workers’ Compensation Law Judge found that our client was an independent contractor because she was “a trained and licensed home health aide with many years of experience,” while the employer was a teacher who had no training or experience in the field and (according to the judge) did not provide any direction or control over our client. This decision was upheld on appeal by a Board Panel, and we applied for Full Board Review.
The Full Board reversed the decisions below, finding that home health aides are “domestic workers” who are covered by the Workers’ Compensation Law as employees if they work more than 40 hours per week. It also found that the elderly person’s daughter, who had hired our client, was properly found to be the employer because she paid our client and had the right to hire, fire and direct her.
We then defeated the employer’s appeal to the Appellate Division when the Court rejected its arguments, clearing the way for the Board to make an award of benefits to our client.