Are you a Georgia business owner? Don’t hire an independent contractor until you read this article.
Question: I own a construction company and I’m the general contractor. I tend to work by myself on small home improvement jobs, but I recently hired some independent contractors—about four guys—to assist me with installing a hardwood floor in a client’s home. I don’t normally carry workers’ compensation insurance because I’ve always worked alone until now.
If one of the guys I hired gets hurt, will Georgia’s workers’ compensation laws make me liable for on-the-job injuries to them, even if I consider them to be independent contractors?
Brief Answer: For many employers, you’ll generally need to have workers’ compensation insurance if you have three or more employees. [1] Otherwise, you’ll be in violation of Georgia’s Workers’ Compensation statute.[2]
To demonstrate the seriousness of Georgia’s Workers’ Compensation statute, you should know that in some instances, a business owner can be charged with a misdemeanor for refusing to or willfully neglecting to comply with Georgia’s Workers’ Compensation Act.[3]
Regarding workers’ compensation insurance, independent contractors who work for you—even those who are legitimately “Form 1099” contractors for tax purposes—might still be considered “employees” who must be insured by you in the eyes of Georgia’s Workers’ Compensation Board.
Unfortunately, the answer to your question is a complicated one since the determination of whether a person is an employee or independent contractor for the purposes of the Workers’ Compensation statute is generally going to be based on the facts of the case.[4] Moreover, the question of whether a particular individual is an independent contractor or an employee is a question of fact to be determined by the State Board of Workers’ Compensation.[5]
As you can see, there is a lot to consider, and you likely won’t be able to get the answer you need from any internet blog or online journal; you should contact an attorney familiar with the legal nuances which help courts determine whether a person is an independent contractor or an employee.
Aside: Generally speaking, it is best to simply go ahead and purchase workers’ compensation insurance and add on a “wrap-up” or “wrap-around” policy if it’s available through your insurer. Gruesome on-the-job injuries happen every day in Georgia and having a workers’ compensation insurance policy is generally going to be good for your business and for your workers.
Note: If you’re an employer who has had a workers’ compensation claim filed against you in Georgia and you don’t have workers’ compensation insurance, feel free to give Attorney Trey Ross a call. There may be valid defenses to the claim against you and we’d be happy to assist you and your business. Attorney Ross can be reached at 678-362-7576 or via email at [email protected].
[1] OCGA § 34-9-2(a)(2)
[2] Id.
[3] OCGA § 34–9–126(b) (providing “[a]ny employer subject to the compensation provisions of this chapter who refuses or willfully neglects to comply with subsection (a) of this Code section [requiring annual filings evidencing compliance with the Workers’ Compensation Act] shall be guilty of a misdemeanor).
[4] See e.g., RBF Holding Co. v. Williamson, 260 Ga. 526, 397 S.E.2d 440 (1990).
[5] See e.g., Golosh v. Cherokee Cab Co., 226 Ga. 636, 176 S.E.2d 925 (1970); American Fire & Cas. Co. v. Davidson, 116 Ga. App. 255, 157 S.E.2d 55 (1967). See also Ocean Acci. & Guarantee Corp. v. Farr, 180 Ga. 266, 178 S.E. 728 (1935).