Employee misclassification can cause serious problems for injured workers in Boston. This issue is becoming even more prevalent as we find ourselves in what is being called, “the gig economy.”
The term is used to describe people who do not a have a traditional steady job, and instead work to earn a living by taking “gigs” that become available online. Although the phrase isn’t new (musicians have long been fond of it), it has taken on a new meaning. Today a gig can include driving for ride sharing services like Uber, signing up to perform handyman type jobs on demand and a variety of other activities such as writing articles for news services.
Employers are happy with this arrangement because it means they can get people to do work for them, while also avoiding the time and expense associated with having a traditional employees. There is typically no need to withhold taxes, provide healthcare or extend other benefits. Politicians also like this because these gig workers are earning money and considered employees for the purposes of state and federal unemployment numbers.
As our Boston workers’ compensation attorneys can explain, while there are good things that come from this type of gig-based economy, there are also numerous potential pitfalls for workers who are injured on-the-job. According to a recent news article from NPR, these problems are only getting worse. One story told in the article involved a worker who was killed in Boston’s Dorchester neighborhood. This worker was doing a job as a food delivery bicyclist for a company that runs their service via a smart phone app. The workers can sign up with the service and are notified when there is a request. The first person in the vicinity of the request will usually get the gig.
In this case, the worker was delivering food when he was killed by a truck that allegedly backed over him. If this worker had been a traditional employee of a deliver company pursuant to the definition in Section 1 of Chapter 152, of the Massachusetts General Laws (M.G.L.), he would be eligible for workers’ compensation benefits. In the case of a fatal workplace accident, it is the next of friend (typically a surviving spouse, parent, or child) who would receive the benefits and these could include the costs of the worker’s final injury or illness with respect to medical treatment, lost wages, and reasonable funeral expenses.
This worker however, was considered an independent contractor so he was not entitled to workers’ compensation. It is true that his next of friend could file a personal injury lawsuit on behalf of the estate, or negotiate to settle the case with at-fault driver’s insurance company, but this is only a realistic option in the event there is an at-fault driver. If the employee was the one responsible for the accident, there would be no avenue of recovery because there would be no valid negligence claim. Moreover, even if there was a valid personal injury claim that could be filed, this would take a lot longer than it should take to get a workers’ compensation claim approved in the majority of cases. Workers’ compensation is also a no-fault system so there is no need to prove negligence on the part of anyone involved including the driver or the employer.
Employee Misclassification Issues in Boston Workers’ Comp Cases
When a worker is really an independent contractor, there is not much that can be done if a worker is injured on the job, and there is no valid negligence based personal injury lawsuit that can be filed. Where there is something that can be done is when the worker should be classified as an employee within the meaning of the Massachusetts workers’ compensation statute, and the employer is trying to misclassify him or her as an independent contractor. There have been many examples of this prior to the gig economy reaching full swing, and there are many more possible examples now that it has. One example from a few years ago involved drivers for delivery services. The company would classify their drivers as independent contractors rather than employees. These workers would not be given uniforms and they would not be given a company truck. Instead, were required to purchase a uniform from the company and lease a company owned delivery truck that had the company logo and color scheme applied to it. They were required to follow the rules in what is typically called an employee handbook and report to a supervisor. They required these workers to do everything an employee would do, while calling them contractors. This is an example of employee misclassification according to many courts around the nation.
A more recent example involved ride sharing drivers. These drivers own the vehicle, but there were very specific guidelines. They also had a relationship with the company that made it seem like they were employees and should be provided with workers’ compensation benefits. Courts around the nation were actually split on this issue, but when it seemed like things were headed towards classifying this as an employment relationship, some of the companies restructured the contracts giving the workers’ more freedom so they could properly classify them an independent contractors.
There may not be an easy answer to this question as a lot will depend on the facts of a claimant’s actual situation. These cases all do start in the same way – a worker is injured on the job in Boston and the company denies a claim for workers’ compensation be saying the worker is not an employee who is covered under their insurance policy. If you find yourself in this situation, the best course of action is seek a free consultation with an experienced worker’s compensation attorney in Boston.
To get an idea as to how prevalent the gig based job market has become, Intuit estimates that gig workers account for 34 percent of the job force, which is a massive number.
If you or someone you love has been injured a Boston work accident, call for a free and confidential appointment at 1-888-367-2900.
As The Gig Economy Grows, Advocates Raise Concerns About Workers’ Safety, December 4, 2017, By Samantha Raphelson, NPR
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Report: Three Workers Burned in Natural Gas Explosion, Feb. 18, 2017, Boston Workers’ Compensation Lawyer Blog