The thorny issue of what defines an employee became a focus of a session on workers’ compensation at the California Hispanic Chambers of Commerce convention Friday in Riverside according to the report in the Press Enterprise.
The issue matters because there is a high percentage of small businesses owned by Latinos in the state and an increasing number of independent contractors.
The status of drivers for transportation provider Uber and some trucking companies has been questioned.
“I’ve done five or six trials this year alone, all trucking companies with the truck drivers as independent contractors, and in each case they turned out to be employees,” said Dora Padilla, workers’ compensation judge at the San Jose Workers’ Compensation Appeals Board and a panelist in the session.
A lot of business owners aren’t sure what their obligations are to their workers, she said.
“I find a lot of problems where employers come in, and I believe them when they say, ‘My attorney or my insurance person or my next door neighbor or my tio, they told me I can do this and have this person be an independent contractor and, no, I don’t have workers’ comp insurance.'” And a person has gotten hurt. “It never fails it’s some catastrophic injury.”
Employers are required to carry workers’ compensation insurance to pay for treatment for employees who sustain physical or psychological injuries on the job.
According to Padilla’s presentation, a hirer is working with an independent contractor when the hirer:
1) Lacks control over detail.
2) Has no right to terminate the relationship.
3) Makes payments by contract price.
4) Does not furnish tools or materials.
5) Does not have control over working hours.
Calling employees independent contractors can have consequences, said Yvonne E. Lang, a partner with Pearlman, Borska & Wax.
“Payroll fraud ” don’t do it! … And if it is an independent contractor, you’d better have a contract.”