1099 worker gets hurt on job?
Question by amy: 1099 worker gets hurt on job?
I’m asking this question for a friend..Her husband is a semi driver and he get paid by a 1099 with no taxes removed he was hurt on the job loading a truck. He fell and broke his hand,elbow and wrist.His employer said he is not elgible for workmans comp. My question is he elgible? But he did sign a release when he started working for this man that he was responsible for his own insurance and taxes..If hes not elgible for workmans comp can he sue? Any information would be helpful..
When the accident occurred he was on company semi..He was on a flat bed trailer on top of the pallets and the forklift loader hit the truck causing him to fall off..The equipment is not his..His employer pays fuel, maintenance and equipment insurance..
Best answer:
Answer by Emma
It depends on what was written on the agreement that he signed, and on the circumstances of the accident. A lawyer would have the best advice on this situation. I’m sorry I couldn’t help. It’s a rather delicate situation.
I wish your friend’s husband gets better soon, and is able to make his work pay for it somehow. It is not fair that we have to sign certain agreements against our benefit
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he is NOT an employee and is NOT covered under WC
he is responsible for carrying his own insurance.
can he sue?
of course he can if he can afford to throw away a couple thousand dollars, he won’t win anything…….
No he is self employed so he was working for himself when the accident occurred so there would be no workman’s comp because that only covers employees. Like any other person who gets hurt on someone’s property, if he can show that the owner of the property was negligent (fell on uneven stairs or that an unsecured item fell and hit him) he could sue for his medical bills but it still wouldn’t be covered by workman’s comp
it is NOT workers compensation, but he can speak to an attorney……
someone is bound to answer that an attorney will see him for free or work for free if he does not win (called contingency), that is simply NOT true, attorneys and their staffs do NOT work for free.
many attorneys will get their “fees” paid on a contingency basis but they will charge for ALL out of pocket expenses win or lose…. IF he decides to see an attorney he needs to be absolutely certain what it will cost and how he will pay………..
if he knew (signed and agreed to) that he needed to maintain his own insurance why didn’t he?
it will be hard to show anyone else was responsible since his own negligence in not keeping insurance is HIS OWN FAULT………
If he is an owner-operator, he is required to carry his own insurance and is not considered an employee of that company. Workers compensation is there for their employees, not their contractors. He can sue, but is not likely to win since he was to be responsible for his own insurance. Unless he can show that there was an extreme safety hazard on the job where he was loading, he is not likely to be able to pass the cause of accident onto the company.
Asking why he didn’t have his own insurance is just adding sal to the wound, I realize, but I just can’t help it!
I hope he’s okay, but he’s got to be responsible for himself.
You have 2 major issues
Issue#1: Is the Driver a W2 employee OR a 1099 independent contractor?
If he is an “Owner Operator” then he is a 1099 independent contractor. He owns the truck. He would then be responsible for his fuel, maintenance, vehicle insurance, workmans comp insurance, taxes etc…
If he DOES NOT own the truck then the Driver is a W2 employee. The Drivers company is then responsible for the fuel, maintenance, vehicle insurance, workmans comp insurance, taxes, etc…
Company’s intentionally mis-classify employees to avoid paying taxes, workmans comp etc… In this case, as you have explained, it appears that he is really a W2 employee but the company has him mis-classified as a 1099 employee to avoid paying taxes, workmans comp etc… If true, is a direct violation of federal law and IRS mandates. In this case, a signed release is also illegal because the employer is responsible for cutting taxes and providing ALL insurance. In some states the state DOT requires employers to provide workmans comp on their 1099 employees.
3 links provide additional information: In the third link see exhibit 2
This 1st link is from the state of Texas but it is the best and most recent explanation of Federal guidelines that I could find.
http://www.tasb.org/services/hr_services/hrexchange/2010/May10/dol_crackdown_on_ind.aspx
http://www.dol.gov/oasam/programs/history/herman/reports/futurework/conference/staffing/9.1_contractors.htm
http://www.bls.gov/opub/mlr/2002/01/art1full.pdf
Issue #2: Co-worker and company liability
Since the accident was a direct result of the co-worker’s actions the co-worker assumes the liability for damages i.e. the Driver’s medical costs, continuing medical care, reimbursement for lost wages and perhaps some punitive damages for negligence. The co-workers company is responsible for the co-workers actions as the company provided the premises and equipment and is ultimately responsible for the accident.
Since you have 2 separate issues selecting an attorney is of paramount consideration. First, on the classification, we have an employer operating under the federal motor carrier’s safety regulations that is administered by the U.S. Dept of Transportation who has his employees misclassified under the (FLSA) Federal Fair Labor Standards Act and fails to provide the required workmans comp insurance. I can assure you the Federal Court in your local district would be very interested to know who this employer is. Second, a personal injury attorney would fair much better on the case of the injuries in your State’s court.
Under these circumstances, I would first see a “Labor and Employment” attorney. The liability issues begin in Federal Court. Under the FLSA, case attorney’s are required to NOT charge for their services. The fees for their services are very lucrative and are administered by the Federal Courts and paid by the defendants. So, it is in your best interest to secure the very best Labor and Employment attorney that you can find! Once you have secured an attorney you can seek his guidance on the personal injury issues.