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Old 04-25-2010, 02:59 PM   #1 (permalink)
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employee vs. independent contractor.

If an employment law claim is raised against an employer, I don't think the employer can merely claim "He was an independent contractor!" and that's the end of it. If that were the case, it would be too easy; everyone would be doing it. Surely, the court takes a "If it walks like a duck, quacks like a duck, and acts like a duck, then it's a duck" approach to distinguishing employee from independent contractor. The customer/employer doesn't just get to call it a swan, and all of the sudden, it's, objectively, a swan, because he says so.

So, what test would the court use to determine if a worker is an employee, or an independent contractor? There's usually a series of prongs. What are those prongs?
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Old 04-25-2010, 08:35 PM   #2 (permalink)
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Why do I feel like I am doing your homework for you?

Btw, I DO happen to know this because my husband was killed at work when the truck he was riding it, driven by a co-worker was hit by a school bus head on. They both died at the scene, May 3, 2007. Subsequent to his death, along with my workman's comp suit, survivors suit, and wrongful death suit, I also engaged in litagation against the estate of the owner of the truck he was in, who worked for the same employer. Since the vehicle was NOT a work truck and while the driver of the truck was technically his co-worker, I was still able to sue him because he was an independent contractor and NOT a 'co-worker'. There were obvious considerations that determine if someone is an employee or an independent contractor , BUT IF you know there are 'certain prongs', then certainly you can figure out what they are, either by reading your own homework assignment, or heading to Google. The fact you would post such a query here, and the manner in which you've asked it makes me believe this is a homework assignment. Who told you there were "prongs"? When this person TOLD you that, why didn't you ask them what they were? If you 'read somewhere' that there were these "prongs", surely the place where you read this went on to TELL you what they were.

I did my homework, both in the class room and unfortunately, in real life. Now, you do yours.
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Old 04-26-2010, 12:16 AM   #3 (permalink)
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Quote:
Originally Posted by GentleGrace View Post
I also engaged in litagation against the estate of the owner of the truck he was in, who worked for the same employer. Since the vehicle was NOT a work truck and while the driver of the truck was technically his co-worker, I was still able to sue him because he was an independent contractor and NOT a 'co-worker'.
I'm obviously unaware of the details of your case, but I will point out, just for clarification of this particular subject, that the employee/independent contractor issue would not likely be relevant in determining whether you could sue the driver's estate for negligence. If the driver was negligent, then his estate is liable regardless of the driver's designation as employee or independent contractor. The designation is relevant when determining vicarious liability -- i.e., whether you can sue the driver's employer.
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Old 04-26-2010, 05:32 AM   #4 (permalink)
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Originally Posted by jdmba View Post
I'm obviously unaware of the details of your case, but I will point out, just for clarification of this particular subject, that the employee/independent contractor issue would not likely be relevant in determining whether you could sue the driver's estate for negligence. If the driver was negligent, then his estate is liable regardless of the driver's designation as employee or independent contractor. The designation is relevant when determining vicarious liability -- i.e., whether you can sue the driver's employer.
You know, I almost didn't bother to answer this but you are so clearly wrong. Perhaps they didn't teach you this in business school but the bottom line is Workmans comp is NO fault and you cannot sue a coworker for negligence. This is precisely WHY OUR argument was he was NOT a coworker but rather an independent contractor. He was negligent--he killed two people that day when he crossed the center line and hit a school bus head on. The only way I was able to collect what small amount there was on the car insurance (not work truck, but privately owned )was to prove he was NOT my husbands co-worker.

I have sat through literally agonizing HOURS of arguments in court about a persons designation is a coworker vs. an employee. Had he been ruled an EMPLOYEE of the same business, I would not have been able to recover anything from him. It's also why MY personal car insurance is denying my underinsured motorist claim in reference to the same accident. Again, their position is you cannot sue a coworker and our position is, he was not a co-worker but rather an independent contractor. That case has not been heard yet but is pending this summer. But they DID ask for a summary judgement based on one fact alone. Want to guess what it is? That he was a coworker and you cannot sue a co-worker. Google it. Look up coworker liability and workman's comp. It is NO FAULT. Liability of a coworker/employer is simply not a consideration in workman's comp.

" .... you cannot sue your employer, supervisor, or co-worker for negligence"Greenville, SC Workers' Comp Attorney | FAQ Worker's Compensation | Lawyer South Carolina Spartanburg Anderson County

This subject is difficult enough for me on a personal level especially as the three year anniversary of my husbands death approaches. I will not be drawn into a discussion with you over this. I will offer no further replies and will add your name to the 'ignore' list so, in fact, you replies will not even be visible on my screen.
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Last edited by GentleGrace; 04-26-2010 at 05:43 AM.
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Old 04-26-2010, 07:03 AM   #5 (permalink)
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Now that I'm aware of some of the facts, that argument certainly makes sense.

Still, for clarification purposes, you reached that result because you chose to release the employer and his employees from liability in exchange for accepting the workers comp settlement, not because employee status relieves people of liability for their negligence.
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