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Experienced Workers’ Compensation Attorney

Are you an employee or a contractor? It matters in workers' comp.

It's called employee classification, and most people don't know the first thing about it. You see on your paycheck or W2 that you're an "exempt" employee -- what does that mean? Your boss says you're an independent contractor -- but are you?

It's confusing, but it's important. Whether you're an employee or a contractor in California is determined in large part by an IRS checklist, the federal Fair Labor Standards Act and California's Employment Development Department and Division of Labor Standards Enforcement. These are primarily focused on the classifications for taxes and whether wage, hour and overtime rules apply, but they also matter for workers' compensation purposes.

Consider the recent case of an exotic dancer from another state who was shot while on the job. We'll pretend the case is from California and apply our laws, although the outcome appears to have been the same.

She made a claim for workers' compensation after she was hit by a stray bullet while she was dancing at the Boom Boom Room in 2008. She lost a kidney and suffered internal injuries.

As has been the case with many exotic dancers, the problem issue was whether she was an employee or an independent contractor. If she was a contractor, the Boom Boom Room didn't have to pay her workers' comp claim.

She appealed the denied claim and, two years ago, a court looked into her situation. Weighing some of the same factors we use here in California, the court determined that her relationship with the Boom Boom Room was more akin to that of an employee than a contractor:

True, she wasn't on the Boom Boom Room's books as an employee, but

  • The club chose the music she danced to
  • She couldn't refuse to perform for customers the club designated, and
  • She would be fined if she left early

The last three factors indicate a level of control over the worker that indicate an employer-employee relationship. Contractors are generally more free to make choices about the details of their work and especially their timetables.

The court ruled in the dancer's favor and sent the case back to the workers' comp commission for a determination of how much compensation she was owed. She was awarded, somewhat arbitrarily, $75 per week.

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