Legal Question in Workers Comp in California

Re: workers' compensation defense

Discuss the case with MR. McClure; find out if the initial discussion is free or not.

You have some difficult problems ahead of you. It is an unclear line between being an independent contractor and an employee; the WCAB favors employee status.

For him to be an independent contractor, you must show that you can not hire or fire him [only argue that he has breached his contract with you]; you should not be deducting anything, except maybe union dues, from the amount you pay him as the job is completed [if you pay him the same amount each certain period of time, he would appear to be an employee}; you have no control over how the job is done; he does not use any of your equipment while on the road; probably he should have to report in periodically so you know where he is; etc. It is very difficult to show he is an independent contractor and if ever single one of your trucks is treated as such it is even more difficult.

The good news is that if he has a valid claim of being an employee, your WC carrier will probably supply you with a free defense attorney, who probably has handled WC cases for years.

The bad news is the carrier will then go through you records to determine how much they are going to surcharge your premiums for failing to declare the actual status of your employee and it is possible you will end up paying more to the carrier, who will probably drop you and tell future potential carriers what you did, then you might have to pay the injured employee. If he shows he is covered by WC but you did not carry any insurance for you, he can sue you in civil court and you can not contest liability, but your liability insurance carrier will probably deny coverage because he is driving his own truck and not an employee, so there is no coverage under that insurance policy.

When you try to cut corners, sometimes the corner you cut cuts you.

Re: workers' compensation defense

Feel Free to call or email me directly. I see that you are in Ontario, CA. My office is in Chino Hills.