Legal Blog

Are Your Construction Workers Properly Classified as Independent Contractors?


In a recently published opinion by President Judge Leavitt, Hawbaker v. Workers’ Compensation Appeal Board (Kriner’s Quality Roofing Services and Uninsured Employer Guaranty Fund), the Pennsylvania Commonwealth Court applied the criteria set forth in the “Pennsylvania Construction Worker Misclassification Act.” The Court held that an injured worker was not an employee but an independent contractor, and therefore not entitled to workers’ compensation benefits.

The Construction Worker Misclassification Act sets forth the criteria for determining whether a construction worker is an independent contractor or an employee, for purposes of workers’ compensation and unemployment compensation.  For the purposes of workers’ compensation, an individual who performs services in the construction industry for remuneration will be an independent contractor if:

(1) The individual has a written contract to perform such services.

(2) The individual is free from control or direction over the performance of such services both under the contract of service and in fact.

(3) As to such services, the individual is customarily engaged in an independently established trade, occupation, profession or business.

An individual is engaged in an independently established trade, occupation, profession or business only if:

(1) The individual possesses the essential tools, equipment and other assets necessary to perform the services independent of the person for whom the services are performed.

(2) The individual’s arrangement with the person for whom the services are performed is such that the individual shall realize a profit or suffer a loss as a result of performing the services.

(3) The individual performs the services through a business in which the individual has a proprietary interest.

(4) The individual maintains a business location that is separate from the location of the person for whom the services are being performed.

(5) The individual:

  • previously performed the same or similar services for another person in accordance with paragraphs (1), (2), (3) and (4) while free from direction or control over the performance of the services, both under the contract of service and in fact; or
  • holds himself out to other persons as available and able, and in fact is available and able, to perform the same or similar services in accordance with paragraphs (1), (2), (3) and (4) while free from direction or control over the performance of the services.

(6) The individual maintains liability insurance during the term of this contract of at least $50,000.

For more information on evaluating relationships and compliance with the Act, feel free to email or call the author, Karin Corbett, Esquire at kcorbett@offitkurman.com or 484-531-1702.

For more construction law articles, please visit the OnKonstruction Blog.

ABOUT KARIN CORBETT

kcorbett@offitkurman.com | 484.531.1702

Karin Corbett is a business attorney and litigator who effectively prevents, resolves and litigates legal disputes for businesses and individuals alike in a variety of industries; but her focus is primarily in the construction & real estate and equine industries.

As a construction and real estate attorney, Ms. Corbett negotiates contracts, analyzes and advises clients on all types of business matters, litigates contract claims.

 

 

 

 

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