Under the Pennsylvania Workers’ Compensation Act, to be eligible for PA workers’ comp benefits, the disabled person must be an “employee.” Often, this is obvious and not even in question. There are times, however, when a case turns on whether, in fact, the injured person was truly an “employee.” We most often see this situation when the issue is whether the injured worker was an “employee” or an “independent contractor.”
The analysis, to determine whether someone was an “employee” or an “independent contractor,” depends on the facts in each case. It frequently becomes a very complicated issue, requiring multiple depositions and extensive litigation.
At least some of this situation will be easier to determine, now that the Pennsylvania Legislature passed Act 72 of 2010, on October 13, 2010 (This is listed as House Bill 400). The law will take effect 2/11/11. While this law applies only to the construction industry, we expect that to be read broadly, to include roofing, plumbing and other related areas.
Under Act 72, an injured worker (in the construction industry) will be considered an “independent contractor” only if all of the following conditions are met:
(1) the individual has a written contract to perform such services;
(2) the individual is free from control or direction over performance of such services both under the contract of service and in fact; and
(3) as to such services, the individual is customarily engaged in an independently established trade, occupation, profession or business.
This law should significantly limit an employer’s ability to try and escape liability under the PA Workers’ Compensation Act, and make it easier for injured workers in the construction industry to get the workers’ comp benefits they need.