Workers’ Compensation Lawyers

Can My Employer Say I’m an Independent Contractor To Get Out of Paying Workers’ Comp?

independent contractor agreement on clipboard with pen

If you’re an injured worker misclassified as an independent contractor, it’s time to fight for your right to workers’ compensation benefits.

"In the state of Pennsylvania, an employer is not allowed to misclassify you as an independent contractor to get out of paying for workers' comp and other benefits," says O'Malley & Langan Founder and Senior Partner Todd O'Malley. "It’s important to realize the law presumes you're an employee. If an employer wants to classify you as an independent contractor, the burden of proof is on them to show you meet the legal requirements."

Pennsylvania law requires all employees to be covered by workers' compensation, but independent contractors are not employees. There are laws specifying who can and cannot be considered an independent contractor, and many employees are misclassified as contractors. At O’Malley & Langan, we can help you sort out this situation and identify your legal rights and options.

What's the difference between an independent contractor and an employee?

Broadly speaking, an employee is someone who performs ongoing services controlled by an employer in exchange for a paycheck, and an independent contractor is a self-employed worker who performs services for a company and submits invoices for payment. Some of the key differences between an employee and an independent contractor include:

  • Independent contractors are typically free to work when and where they choose as long as the work gets done. If your employer sets specific work hours or a specific work location, you are likely an employee.
  • Independent contractors usually provide their own tools and have a high degree of control over the details of their work process. If your employer requires you to use specific tools, tells you where to purchase supplies, or controls the details of your work process, you are likely an employee.
  • Independent contractors may receive informal feedback on their work, but they generally are not provided with formal training or supervision (e.g. performance reviews) like employees
  • Independent contractors should be meaningfully independent and free to offer their services to other companies.

If the company you work for calls you an "independent contractor," but the actual nature of your employment is more like an employee, you may be misclassified.

Pennsylvania has a specific state law that addresses misclassification as independent contractors for people in the construction industry, called the Construction Workplace Misclassification Act (Act 72). Under this law, for a construction worker to be classified as an independent contractor, all of the following criteria must be met:

  • The worker has a written contract to perform construction services,
  • The worker is free from control or direction over the performance of the services, and
  • The worker is "customarily engaged in an independently established trade, occupation, profession or business," a term with a specific statutory definition that includes, among other criteria, owning your own tools and maintaining your own separate business location.

Other workers who are commonly misclassified, such as truck drivers, don't have the same detailed definition, but they still have protection under the law. Pennsylvania courts look at the employment relationship holistically, weighing numerous factors, to determine whether a particular worker should be considered a contractor or an employee for workers' compensation purposes.

Your legal options after a work injury vary depending on how you're classified.

When employees are hurt on the job, they can file for workers' compensation benefits to cover their medical expenses, partial lost wages, and certain other benefits if the injury causes a permanent disability. This is a no-fault system, meaning you don't have to prove the work injury was your employer's fault. The tradeoff at the heart of workers' compensation is that your employer has immunity from civil liability, so you can't file a personal injury claim or lawsuit against your employer. You only get what's covered by workers' comp.

"That tradeoff cuts both ways," explains retired workers’ compensation judge and attorney Joseph Grady, who recently joined the firm. "If you're an employee, you can file for workers' compensation, but you can't sue your employer. If you're a contractor, you can't get workers' comp, but you can file a personal injury claim or lawsuit against your employer if their negligence caused your injury."

How the process plays out depends on your classification. If you're an employee, you need to prove that you were at work when the injury happened and go through the workers' compensation process. If you're an independent contractor, you must prove negligence using our civil justice system. In addition, whether you're an employee or a contractor, you are allowed to file a personal injury claim against a third party that contributed – in part or in whole – to the cause of your injuries, such as a subcontractor, vendor, property owner, or manufacturer of defective equipment.

"These situations can get complicated, but we have the breadth of legal experience to help you navigate the system and work toward a successful resolution," says attorney and Partner Mary Anne Lucas. "The sooner you talk to one of our attorneys, the better. We can investigate your work accident and your employment classification so that we can advise you of your legal options and any applicable deadlines."

If you were hurt on the job in Pennsylvania and aren't sure whether you qualify for workers' compensation benefits, contact us today. It costs nothing to speak with an experienced work injury attorney about your options, and there is no obligation.

Office Locations



201 Franklin Avenue

Scranton, PA 18503

p. 570-344-2667



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Pittston, PA 18640

p. 570-883-1321



213 Main Street

Towanda, PA 18848

p. 570-265-5800