Photo by Paul Keleher, available under www.creativecommons.org/licenses/by/2.0
When you think construction worker, you think of strong men in hard hats with bulging muscles, right? Well, as it turns out, tough guys need protection, too–from their employers.
After studies showed that as many as 50,000 construction workers in New York City alone are misclassified as independent contractors rather than employees, or are employed completely off the books, New York enacted the “Construction Industry Fair Play Act” which became effective on October 26, 2010.
Workers who are classified as” independent contractors” are deprived of important benefits owed to people classified as “employees.” Those benefits include overtime pay, unemployment insurance and workers’ compensation. Because employee benefits are costly for employers, they often misclassify workers as independent contractors to avoid payment. Hard to imagine wanting to get into a disagreement with a construction worker, but whether a person is an independent contractor or an employee has been the subject of many disputes.
In order to clarify who is an employee, the Fair Play Act presumes that a construction worker is an employee unless the worker is a separate business entity (as defined by the Act) or if: 1) the worker is free the employer’s control and direction in doing the job, both under his/her contract and as a practical matter; and 2) the service being performed by the worker must be performed outside the employer’s usual course of business; and 3) the worker is customarily engaged in an independently established trade, occupation, profession or business that is similar to the service that is in issue. The construction worker may be considered an independent contractor only if all of these three criteria are met. In other words, if the construction worker has his/her own business, performs the services sought on his/her own and also works for others independent of the work being done for the employer, the worker is considered an independent contractor.
So, for example, if Harry Hard Hat has a business installing roofs and installs roofs for several construction companies the way Harry thinks best, and on the days and times Harry chooses, Harry is most likely an independent contractor. If, on the other hand, Harry is hired by Construction Company, Inc. as a roofer, trained by Construction Company, Inc., punches Construction Company’s time clock and has no business of his own, he’s likely an employee and entitled to benefits.
So Harry, if you’re in New York, your hard hat could be all the protection you need.