“Employee” and “Employer” – Critical Terms to Understand When Reviewing a Workers’ Compensation Claim

Understanding the meanings of “employee” and “employer” under the Virginia Workers’ Compensation Act (“the Act”) is crucial in determining whether the Act applies.  该法案仅适用于拥有三名或三名以上员工的企业.  If the injured worker was working for a business with less than three employees regularly in service, 他/她的伤害不在该法的赔偿范围内, 他/她不能享受工伤补偿福利.  Certain businesses therefore do not meet the threshold of being covered under the Act.

谁是雇员??

在评估为他人工作的人的地位时, the determination of whether the person is an employee must be made based on the facts of the particular case in light of well-settled Virginia workers’ compensation principles.  A person who is hired by an employer to work in the usual course of the employer’s business may be held to be an “employee” under the Act regardless of how often or for how long the person may be employed. 

The general rule is that a person is an employee if he works for wages or a salary and the person who hires him reserves (1) the power to fire him and (2) the power to exercise control over the work that is performed.  This right of control over a person is the determining factor in ascertaining the relationship between the parties.  控制权的大小不仅关系到要达到的工作效果, but also relates to controlling the means and specific methods of accomplishing the work result.  The Commission has held that the absolute right to fire a person without cause or notice includes the power to compel that person’s obedience to work tasks and instructions and therefore is an important consideration in the assessment of employer-employee relationships.

This nature of control therefore impacts whether a person is classified as an employee or an independent contractor.   An independent contractor is a person who may freely adopt the means and methods to accomplish the end work result.  重要的是, just calling someone an “independent contractor” or just providing them with a 1099 tax form at the end of a tax year does not make them an independent contractor under the Act.  The Commission looks to the element of control and the freedom of choice in performing the steps that lead to the final work result.

谁不是雇员?

The Virginia Workers’ Compensation Act does note several exceptions to who is classified as an employee and these exceptions are specifically listed in VA Code §65.2-101.

7月1日/以后受伤的人, 2012, where there is jurisdiction under either the Longshore and Harbor 工人的补偿 Act (33 U.S.C. §901及以下.)和或1920年商船法(46 U.S.C. §30104及以下部分.根据《皇冠线上买球平台》(Virginia Workers’Compensation Act)，他并未被认定为雇员.

任何出租车或行政轿车司机, provided the Commission is furnished evidence that such individual is excluded from taxation by the Federal Unemployment Tax Act, 不是该法案下的雇员.

临时雇员不属于该法案规定的雇员.  Casual employees are defined as employment where it is not permanent or periodically regular.  这是一种偶然的、偶然的就业.  It is also important that such employment not be in the usual course of the employer’s trade or business.  

农场和园艺工人不属于该法案规定的雇员 除非 雇主通常有三名以上在职全职雇员. 

An owner-operator of a motor vehicle that is leased with or to a common or contract carrier in the trucking industry 不是该法案下的雇员 只有: (i) the owner-operator performs services for the carrier pursuant to a contract that provides that the owner-operator is an independent contractor and shall not be treated as an employee for purposes of the Federal Insurance Contributions Act, 26 U.S.C. §3101及以下.《皇冠搏彩APP下载》，P.L. 74-271, 联邦失业税法, 和联邦所得税法以及(ii)存在以下各因素:

(一)车主经营人负责车辆的维修保养;

(2) The owner-operator bears the principal burden of the vehicle's operating costs;

(3)业主经营者为司机;

(4) The owner-operator's compensation is based on factors related to the work performed and not on the basis of hours or time expended; and

(5)业主经营者确定履行皇冠线上买球平台的方法和手段.

什么是雇主?

根据VA法典第65条.2-101, 雇主是“(i)任何人, 联邦或其任何政治分支及任何个人, 公司, 协会或公司, 或其接收人或受托人, 或已故雇主的法定代表人, using the service of another for pay and (ii) any volunteer fire company or volunteer emergency medical services agency electing to be included and maintaining coverage as an employer under this title. 如雇主受保险，则在适用范围内包括其保险公司.“重要的是, there is no exception made for family relationship between an employer and an employee; this means that if a husband was the employer, 索赔人不因其家庭关系而被禁止获得赔偿.  确定雇主与雇员关系时, the Commission may analyze how an employer operates during its “peak season” if it is not a year-round business to determine both the number of employees at the business and the usual nature of the business.

While there are many items to be considered when an accident happens at a business and when a claim for benefits is filed with the Virginia Workers’ Compensation Commission, 本文只强调了一些这样的注意事项.  Businesses should seek the advice of counsel when navigating the initial investigation and later defense of workers’ compensation claims.

克里Stolz 是一个皇冠搏彩APP下载 & 科沃德律师专注于工人赔偿事务.