Tuesday, January 11, 2011

How to Determine Employee vs. Independent Contractor in Arizona Work Comp

One big mistake some employers make is thinking that just because they have their employees sign an "Independent Contractor Agreement", they are totally immune from Arizona workers compensation claims.  I've made a good living off of employers making mistakes like that.  Just because you call somebody something, doesn't make them that something.  If you have your employees sign a "Genius Agreement" does it make them geniuses?  No!!!  Determining whether or not an injured worker in Arizona is an employee or an Independent Contractor is usually a nuanced legal determination made by an Administrative Law Judge at the Industrial Commission of Arizona. 

The ALJ's determination is based on two tests:  (1) the right to control test; and (2) the usual trade or occupation of the employer test.  The first of these, the right to control, is made by looking at how much control over the details of the work the "employer" maintains.  The "indicia of control" are things like:  does the worker work a set schedule, does the employer have the right to hire and fire, are taxes withheld, is the employment indefinite or a one-time job, does the worker use the employer's tools, uniforms, vehicles, etc., and several others.  The second part of the test involves determining whether or not the injured worker is performing work that is central to the main business involved or in something ancillary. 

The most common offenders (I hate to give away this secret) are trucking companies and cab companies.  If you hire a trucker to drive your truck for your trucking company, and if you tell him where to go, when to go, pay for the gas, and pay him regularly, he is your employee, no matter how well worded your Independent Contractor Agreement is. 

Snow, Carpio, and Weekley are attorneys with offices in Phoenix and Tucson.  They have represented thousands of injured workers before the Industrial Commission of Arizona.  They can be reached at (602) 532-0700, (520) 647-9000

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