Am I An Employee or Independent Contractor Under Workers Compensation in Virginia?


Virginia Workers Compensation Covers Employees, Not Independent Contractors


An injured employee seeking benefits under the Workers Compensation Act has the burden of proving that he or she was an employee at the time of the workplace accident. Independent contractors and subcontractors are not considered employees. As such, their accidents and injuries are not covered under Virginia workers compensation.


This article examines the Workers’ Compensation Commission’s test to determine whether an injured worker was an employee or independent contractor at the time of the work accident. If you have a question about the workers compensation claims process and proving your entitlement to benefits, call or e-mail workers compensation attorney¬†Corey Pollard for a free strategy session. We’ve helped many injured workers who were classified as independent contractors prove that they were employees under the Virginia Workers’ Compensation Act – and we want to help you negotiate a workers compensation settlement that provides financial relief for you and your family.


How Does the Virginia Workers Compensation Act Define Employers and Employees?


Section 65.2-101 of the Virginia Workers Compensation Act defines an “employer” as “any person, the Commonwealth or any political subdivision thereof and any individual firm, association or corporation, or the receiver or trustee of the same, or the legal representative of a deceased employer, using the service of another for pay.” If the employer carriers insurance, its insurer is considered an employer also.


The same code section defines an employee as, “Every person, including aliens and minors, in the service of another under any contract of hire or apprenticeship, written or implied, whether lawfully or unlawfully employed, except (i) one whose employment is not in the usual course of the trade, business, occupation or profession of the employer …” The statute then goes on to state who is and who is not an employee. There are several exceptions.


Creating an Employer-Employee Relationship under Virginia Workers Compensation


There must be a contract of hire or employment for an employer-employee relationship to exist under Virginia workers compensation A contract of hire is an agreement under which an employee provides labor or services to an employer for wages or other benefits.


You do not need a written employment contract to prove that you are an employee. “At will” employment is enough. The contract of hire may be written, verbal, or implied.


In workers compensation claims involving injured construction workers and truck drivers, employers and insurers often argue that no employer-employee relationship existed. They’ll argue that the injured worker was an independent contractor. Why? Because independent contractors are not covered under the Virginia Workers’ Compensation Act.


Virginia Workers’ Compensation Test to Determine the Employer-Employee Relationship and Whether You Were an Independent Contractor


In determining whether there is an employee-employer relationship, the Workers’ Compensation Commission evaluates these four elements:


  • The right to hire;


  • The power to fire;


  • The obligation to pay wages and how they are paid; and,


  • The power of control of the worker’s actions.


The power to control and direct the employee in his performance of his work is the most significant element in determining the employment relationship.


The right to control includes not only the power to specify the result to be achieved, but also the power to control the means and methods by which the result is attained. If a person has the power to direct the means and methods by which another does the work, then an employer-employee relationship exists. If however a person is free to adopt the means and methods to accomplish the result, then he or she is an independent contractor whom is not covered under Virginia workers’ comp.


Criteria to Determine if You Are an Employee or Independent Contractor under Workers Compensation


Below are some criteria that may be used to determine if you are an employee or independent contractor under workers compensation laws. The more testimony and documentation you can present to show that you were an employee, the better your chance of receiving benefits.


You may be an employee if:


  • You have a continuing, long-term relationship with the employer.
  • The employer provided you with tools, materials, and labor to complete the project or job.
  • You can quit or stop working at any time without being liable for damages.
  • The employer can instruction you on when, where, and how to work.
  • The employer trained you.


You may be an independent contractor if:


  • The work you do for the employer is the same type of work you do for others.
  • You own the tools and equipment necessary to complete the job.
  • You can hire, supervise, and pay assistants to help you complete the job.
  • You may make a profit or suffer a loss depending on your management of the job.
  • You set your own hours and schedule.
  • You have a business life.


Important Virginia Workers Compensation Commission Decisions on the Employer-Employee Relationship and Independent Contractors


Better Home Servs., Inc. v. Medrano, No. 1776-00-4 (Ct. of Appeals 2000): A written document stating that a person is an independent contractor is not binding on the Commission. Though written documents may help determine the parties’ intent, they are not determinative. The parties cannot designate or agree to a legal status. The Commission will look behind the agreement to determine the actual employment relationship.


Richmond Newspapers, Inc. v. Gill, 224 Va. 92 (1982): As a general rule an employee is a person who works for wages or a salary. Further, an absolute right to discharge without cause or notice is one of the earmarks of the employer-employee relationship.


Phillips v. Brinkley, 194 Va. 62 (1952): A truck driver who was hired at a fixed sum per hour for himself and his truck was an employee.


Darby v. Harvey, No. 2101-02-2 (Ct. of Appeals 2003): A claimant was an independent contractor not covered under the Workers Compensation Act when he approached the employer looking for work, received general instructions about performing the work but was able to determine how to complete it, was not supervised by the employer, set his own schedule, and used some of his own tools. Determining who sets the schedule and who provides the tools is an important part of determining the employer-employee relationship.


Purvis v. Porter Cabs, Inc., 38 Va. App. 760 (2002): A taxicab driver was an employee even though he was paid by his fares rather than by wages. The company interviewed the drivers, required them to follow specific rules, and could suspend or fire the driver.


Proving You’re an Employee and Not an Independent Contractor under Virginia Workers Compensation


If the employer and its insurance company take the position that you’re an independent contractor, contact an attorney right away. These types of claims are complicated and an experienced lawyer can help you build your case and prove that you’re entitled to coverage under the Workers Compensation Act. Corey Pollard is here to help.


Articles About Filing for Workers Comp in Virginia