Yes and no, as to whether independent contractors are covered by workers’ compensation. In Wisconsin most workers will be covered by workers comp unless a very strict statutory exception applies, and it almost never does. So if a worker is injured and the employer says you are not covered by workers comp because you are an independent contractor, call an attorney before walking away.
Under Wis. Stats. Sec. 102.07(8), a person is required to meet a nine-part test before he or she is considered an independent contractor rather than an employee. A person is not an independent contractor for worker’s compensation purposes just because the person says they are, or because the contractor over them says so, or because they both say so, or even if other regulators (including the federal government and other state agencies) say so.
To be considered an independent contractor and not an employee, an individual must meet and maintain all nine of the following conditions:
• Maintain a separate business
• Obtain a Federal Employer Identification number from the Federal Internal Revenue Service (IRS) or have filed business or self-employment income tax returns with the IRS based on the work or service in the previous year.
• Operate under specific contracts.
• Be responsible for operating expenses under the contracts.
• Be responsible for satisfactory performance of the work under the contracts.
• Be paid per contract, per job, by commission or by competitive bid.
• Be subject to profit or loss in performing the work under the contracts.
• Have recurring business liabilities and obligations.
• Be in a position to succeed or fail if business expense exceeds income.
The National Labor Relations Board filed a complaint in Minneapolis recently alleging home-improvement retailer Menards misclassified delivery drivers as independent contractors to avoid providing them with workplace protection, according to a Chicago Tribune article. The complaint is in response to a charge filed in August by a New York-based workers union. Menards disputes the allegations.
“We feel that the NLRB is wrong,” the company responded in a statement. “Our corporation has contracts with various corporations to deliver goods to our customers. … We plan to vigorously defend ourselves against these ridiculous allegations.”
McCormick Law Office in Milwaukee, Wisconsin represents injured workers who have been misclassified by the employer as independent contractors and we have been successful in obtaining workers compensation benefits for such workers. Benefits include for disability, time off work, retraining, loss of earning capacity, medical bills and permanent injury. Better to be safe by checking with an attorney before accepting the independent contractor label denying benefits.
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