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Are Independent Contractors Eligible For Workers’ Compensation In Virginia?


Under Virginia’s Workers’ Compensation Act, employers must provide workers’ comp to their legally hired employees, but they are not required to cover contractors. Independent contractors and subcontractors usually have to shoulder their own workers’ comp insurance. However, just because the company labels you an independent contractor doesn’t always mean you are one. There may still be a chance that you could be covered by the company’s workers’ compensation.

Contractor Or Employee? What Virginia Law Says

The VA Workers’ Compensation Act broadly defines an employee as “Every person, including aliens and minors, in the service of another under any contract of hire or apprenticeship, written or implied, where lawfully or unlawfully employed.”

An independent contractor is an exception to this general definition. The law defines it as a person who is hired under contract but “whose employment is not in the usual course of the trade, business, occupation, or profession of the employer.”

According to the Virginia Workers’ Compensation Commission, the most important distinguishing factor between an employee and an independent contractor is the employer’s power to control the worker’s job. If the company has significant control over your work – especially if it dictates your means and methods of working – it may be argued that you are an employee and thus eligible for worker’s comp.

Virginia’s New Law On Employees And Contractors

A new labor law took effect in Virginia on July 1, 2020, making it easier for a worker to confirm their status as an employee of a company. One of the key provisions of the law is that all workers of a business are presumed to be its employees, unless the business can show that a worker fits the “independent contractor” guidelines of the Internal Revenue Service (IRS).

Like the Virginia definitions, the IRS considers the employer’s degree of control as the main criterion in differentiating employees and subcontractors. The federal agency states, “The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.”

The new Virginia statute generally means that if you are seeking workers’ comp benefits, you may have the right to do so even if your company refers to you as an independent contractor. The law presumes you to be an employee – albeit a misclassified one – unless your employer proves that you fit the IRS definition of an independent contractor.

Further, the new law gives you a civil right of action (the right to sue) if your misclassification as a contractor has caused you to miss out on employee benefits. If the court sides with you and rules that you have been misclassified, your employer may be liable to pay you for the wages and benefits you should have been receiving, plus your attorney fees and other lawsuit-related costs.

Protecting Your Classification As An Employee

Note that you can be considered an employee whether your contract is written or implied. Your employer or their insurance company may likely try to challenge your category as employee, so be prepared to defend your classification. Gather documentation that shows the following:

  • You have a long-term and continuing working relationship with the employer.
  • The employer has provided you the materials, tools, and other resources to perform your job. You do not own these materials and resources.
  • The employer instructs you on your work hours, venue, and workflow. You do not set your own schedule and processes.
  • The employer has trained you for the job you perform for them.
  • You do not perform the same type of work for other businesses.

It is best that you reach out to a worker’s compensation lawyer to help assert your lawful right to this employee benefit. An attorney’s legal know-how could be indispensable if you have always been labeled an independent contractor but may actually be classified as an employee. Look for a lawyer who is experienced in navigating Virginia’s labor laws and fearless when facing well-resourced companies.

Call Slominski Law

Attorney Jaleh K. Slominski is dedicated to asserting the rights of workers in Virginia. Her skilled and tenacious representation, coupled with her firm grasp of labor laws, has helped numerous workers obtain their rightful compensation following their job injury. She is ready to listen to you, guide you, and fight for you. Call the Lynchburg office of Slominski Law (434) 384-9400, or our Roanoke office at (540) 554-3762.