What are Your Rights if You are a Misclassified Employee and are Injured at Work?

Employee, contractor, independent contractor, freelancer – these are a few of the classifications given to workers in the United States. Classifying workers is important because it impacts what laws are applicable to them, such as workers’ compensation benefits.

Not only may workers find it difficult to access benefits they expected to qualify for, but they may also find themselves restricted, owing money, or unable to apply for benefits if they are injured at work. Let’s take a closer look at misclassification and what that means for injured workers.

Understanding Misclassification

There are a few industries in the U.S. that are more prone to misclassifying workers. These include:

  • Construction
  • Trucking
  • Agriculture
  • Home Health
  • Child Care

The Internal Revenue Service (IRS) has guidelines that can be used to determine how a worker is classified. The guidelines use a set of 20 factors, which fall into three categories – financial control, behavioral control, and the relationship (employer-employee, etc.).

What to Do if You Have Been Misclassified

If you determine that you are a misclassified employee, your first step is making sure that you are properly classified going forward. Discuss the misclassification with your employer or supervisor, or the company that contracted you, and have your classification corrected.

If you have been injured at work and are a misclassified employee, you may also find it helpful to contact a workers’ compensation attorney before taking any action. You don’t want to risk jeopardizing benefits that you are entitled to, including workers’ compensation benefits that could help cover the cost of your medical expenses, any lost wages, and more.

To find out more about misclassified employees and what you can do to protect your legal rights, contact the Law Offices of George S. Henderson. We can help you understand and protect your legal rights.



What is the Subsequent Injury Fund (SIF)?

Workers’ compensation coverage is a standard for most businesses, and employees rely on that coverage when on-the-job injuries happen. What most people don’t know, however, is that there are many variations of benefits that may be awarded to employees based on factors like previous disabilities. One of the often overlooked elements of workers’ compensation benefit programs is the Subsequent Injury Fund, or SIF.

What is a Subsequent Injury Fund?

California law has what is called the Subsequent Injuries Benefits Trust Fund (SIBTF), or more commonly referred to as a Subsequent Injury Fund (SIF). An SIF is a type of benefits provided to employees who are injured while on the job, but who already have a previously diagnosed (pre-existing) disability or impairment.

The purpose of the fund is to enable employers to hire individuals who have disabilities without the fear of being held liable for those injuries if a subsequent injury or disability occurs. The program benefits both employers and employees.

Qualifying for SIF Benefits

We all know that applying for, qualifying for, and obtaining workers’ compensation benefits can be a tedious process. While the SIF has been in place in California since 1945, it can still be complicated and tricky to qualify for benefits. In order to qualify, employees must consider the following:

  • There must be a pre-existing impairment or disability that has prevented the individual from accessing employment.
  • There must be a subsequent injury or impairment.
  • The two disabilities or impairments, when combined, must equal at least a 70 percent permanent disability.
  • The subsequent injury must cause at least 35 percent permanent disability without adjusting factors.

Additionally, medical and legal factors will be considered, along with benefits already applied, such as Social Security Disability or pension benefits.

Because of the qualifications process, and medical and legal factors coming into play, it is important to speak with a workers’ compensation attorney before applying for benefits.



Are Lyft/Uber Drivers Eligible for Workers’ Compensation?

Transportation Network Companies (TNC’s) Lyft and Uber are increasingly mainstream. You only need to pull out your mobile device and set up a ride in order to get where you need to go. As a customer, you love the flexibility and convenience. But say you are considering becoming a Lyft or Uber driver – do you know what your rights and responsibilities are?

Increasingly, our firm is asked if Lyft and Uber drivers are eligible for programs like workers’ compensation. Lyft and Uber do not consider their drivers as “employees”. Therefore, they do not qualify for traditional workers’ compensation coverage.

However, several insurance companies are partnering with Uber and Lyft to provide drivers with a type of insurance coverage that provides compensation for work-related injuries. Companies like OneBeacon Accident & Health are working with Uber to provide policies that are similar to what truck drivers are offered as contractors.

These policies cover drivers for up to $1 million in medical expenses, disability benefits, death benefits, and survivor benefits. The downside to these policies is the fact that the entire expense is the burden of the driver. Unlike workers’ compensation benefits for employees, Uber and Lyft contractors do not get help from their “employer” in covering the cost of insurance.

Uber and Lyft executives have continually denied that they are, in fact, employers, and many legal cases have arisen out of the debate over employee versus contractor. Legally, determining an employment relationship depends on a variety of factors like control, performance, and wages.

Some courts have found that an employer-employee relationship does exist between TNC’s and drivers. Other courts disagree and uphold that drivers are contractors. Unfortunately, the debate continues and does little to protect drivers and provide benefits if they are injured while working for Uber or Lyft.






Changes in Workplace Laws in 2019

As the New Year begins, Californians can look forward to a variety of changes in workplace laws. Some of the most important changes for readers to be aware of include:

Minimum Wage Changes

Minimum wage is changing in California thanks to SB 3. Under the new law, minimum wage will now be $11 per hour at companies with 25 employees or less. Companies with more than 25 employees will now offer $12 per hour.

Overtime for Agricultural Workers

AB 1066 will mandate that agricultural workers will receive overtime pay. The new law will slowly increase wages for extra hours worked over a period of four years.

Street Vendors

In 2018, laws were passed to protect street vendors as they sell. New law SB 946 will give local authorities the ability to set regulations for street vendors based on safety, health, and public welfare.

Protection Against Lawsuits in Cases of Harassment Complaints

AB 2770 is a new law offering protection for victims of sexual harassment and their employers. Under this new law, alleged harassers cannot sue the victim or an employer for defamation while an investigation is being conducted.

Confidentiality Agreements

SB 820 is a new measure prohibiting confidentiality agreements in cases involving assault, sexual harassment, or discrimination. The law goes into effect for any case signed as of January 1, unless the claimant requests the provision be included.

Breastfeeding at Work

AB 1976 is a new law that requires employers to make “reasonable efforts” to provide a place for breastfeeding that is not inside a bathroom.

Waiver of Legal Claims

New law SB 1300 prohibits employers from forcing employees seeking a raise, or new employees, to waive their right to file a legal claim. Employees can still waive their right under an agreement, but employers cannot force them to do so.

Common Injuries in the Restaurant Industry

In the restaurant industry, there are many different positions, but all are related in some way. No matter what your position is – head chef of a fancy restaurant, or a line cook at McDonald’s – if you work in the restaurant industry you face certain risks for on the job injuries. Let’s take a look at some of the most common injuries in the restaurant industry.

Common Injuries in Restaurants

Based on information from the Occupational Safety & Health Administration (OSHA), the most common risks in the restaurant industry include:

  • Injuries caused by lifting heavy trays, containers, tables, or chairs.
  • Injuries caused by reaching or over-extending.
  • Burn or scalding injuries caused by a stove, oven, dishwasher, deep fryer, or other appliances.
  • Electrical burns caused by wiring, appliances, or damaged cords or wiring.
  • Exposure to hazardous chemicals or fumes.
  • Workplace violence, including robbery.
  • Injuries caused by auto accidents while delivering food.

These risks can lead to a variety of specific injuries, such as:

  • Repetitive use injuries (examples include sprains, strains, or bulging discs)
  • Burns
  • Broken or fractured bones
  • Cuts or lacerations
  • Overexertion injuries (commonly in the back, neck, or shoulders)
  • Toxic exposure illness or injuries

Any sort of injury could cause to you lose time at work. Serious injuries could result in your being permanently unable to return to work. So what can you do if you have been injured while working in the restaurant industry?

Getting Help with Restaurant Injuries

If you have been injured while working in a restaurant, you may be entitled to workers’ compensation benefits. You should get medical attention immediately, and then notify your employer that you are injured. If you are concerned about getting benefits, or have been denied benefits, you should contact a workers’ compensation attorney.



Legal Malpractice and Fraud: Is Your Lawyer Working For You or Against You?

As much as we would love to believe that doctors never harm patients, medical malpractice claims continue to be filed at an alarming rate. Similarly, when we enter into a relationship with a lawyer, we hope that he or she will have our best interests as their focus. Unfortunately, legal malpractice is also a very real concern for clients.

Many people who need legal guidance are afraid that their lawyer will scam them, or will choose to work with the insurance company in order to get a better pay-day. This is a form of fraud and legal malpractice that gives the legal profession a bad name. It also causes a great deal of stress for clients.

Most lawyers work on a contingency fee basis. That means that they do not get paid unless their client gets an award. If the client does get an award, then the process looks something like this:

  • The money is deposited into the lawyer’s trust account
  • The lawyer deducts his or her expenses, fees, etc.
  • Anyone who is owed money (healthcare providers, insurance, etc.) is paid or reimbursed as applicable
  • The remainder of the funds are sent to the client

Most lawyers will provide clients with a detailed account of all expenses and what the award funds were used for. Unfortunately, there are some lawyers who will attempt to cheat the client out of monies they are owed. This could happen via the lawyer deducting more funds than are really owed.

Additionally, if the lawyer has a relationship with insurance companies involved in the case, this could lead to a conflict of interest. The lawyer’s actions could benefit the insurance company, or could result in a kickback payment for the lawyer once the insurance company has been paid. Any such actions could constitute legal malpractice or fraud, and are unethical and damaging to the client.

Timeline for a Workers’ Compensation Claim To Be Completed

If you have been injured on the job, a workers’ compensation claim is important to ensuring that your medical expenses are covered, and that your family remains financially stable. Of course, this process takes time, which can add to your already stressful situation. To help, here is a breakdown of the timeline for most workers’ compensation claims.

Timeline a Workers’ Compensation Claim Takes to Complete

  • Immediately: Immediately after an injury, you should do the following:
    • Seek medical attention (keep all records)
    • Notify your employer
    • Complete a form C-3
  • Within 14 Days: Within 14 days of reporting your accident, the following should have occurred:
    • Your doctor completed a C-4 form (sent to employer and insurance companies)
    • Insurance company sends notification of rights
    • Insurance adjuster or other applicable party investigates the claim
    • Notice of acceptance or denial sent
  • Within 30 Days: Within 30 days of filing a workers’ compensation claim, you should have received an acceptance or denial notification. The following may also apply:
    • Insurance company requests an extension for investigation
    • Some states allow 30 days for decisions, rather than 14.
  • 30 to 60 Days: If your claim was denied or disputed, you have a certain period of time to take further action. This includes:
    • For denials, you have 30 days to file an appeal requesting a hearing
    • A hearing date must be set within 30 days of the request
    • The hearing officer generally has 15 days to make a decision.

Remember that there are some factors that can impact the timeline of your claim, such as state laws, your employer, your injury and its severity, and more. For more detailed and individualized information, contact a workers’ compensation attorney to discuss your case.

Common Injuries in the Aviation Industry

Working in the aviation industry often seems like a dream job. Pilots and flight attendants get to travel and enjoy lucrative incomes. But these are only two of the many roles that make up the aviation industry, and below the surface, even these glamorized positions are not without risk.

How Dangerous is the Aviation Industry?

According to the U.S. Bureau of Labor Statistics (BLS), the percentage of injuries and illness in the aviation industry has spiked higher than the construction, mining, and agriculture industries. In 2016, there were a reported 6.7 nonfatal injuries per 100 workers in the aviation industry. That accounted for over twice the rate of workers among all private industries, which was 2.9 cases per 100 workers.

The BLS lists occupational injuries and illnesses that required time away from work as the following (per 10,000 full time workers):

  • Cargo and freight – 746.9
  • Flight attendants – 515.3
  • Mechanics and service technicians – 186.3
  • Clerks, reservation agents, and ticket sales – 145.2
  • Pilots, copilots, and engineers – 39.3

Common Injuries in the Aviation Industry

Some of the most common injuries occurring in the aviation industry include:

  • Spinal cord injuries – Caused by lifting baggage and reaching overhead.
  • Neck or shoulder injuries – Caused by jarring, turbulence, or rough landing.
  • Slip and fall injuries – May occur in airports or onboard planes.
  • Repetitive motion injuries – Impacts wrists, hands and back. Caused by pushing carts, repetitive movements, lifting, bending, etc.
  • Assault – Unfortunately, assault has become an increasing workplace hazard for flight attendants.
  • “Sick airplane syndrome” – Illness caused by extended exposure to the sometimes poor air quality inside planes.
  • Fatigue – Airline workers often work long hours and have varying schedules. This can result in fatigue and poor sleep schedules.

If you work in the aviation industry and have suffered these or other injuries, you may be entitled to workers’ compensation benefits. Find out by calling the Law Offices of George S. Henderson today.