Workers’ Compensation for Independent Contractors
The label your employer puts on you does not determine what the law says you are.
If you were told you are an independent contractor, got hurt while working, and believe workers’ compensation does not apply to you, that conclusion may be wrong. New York does not let employers decide unilaterally who is and who is not an employee.
The New York State Workers’ Compensation Board makes that determination based on the actual nature of the work relationship.
Lewis & Lewis, P.C. has helped injured workers across Buffalo and Western New York challenge independent contractor classifications for decades. If you were hurt on the job, we evaluate your situation at no cost, whether your employer called you a contractor, a freelancer, a gig worker, or a subcontractor.
Call us: (716) 854-2100
Can Independent Contractors Get Workers’ Compensation in New York?
Sometimes yes. New York law determines whether you are truly an independent contractor based on how the work relationship actually functions, not on what your employer calls it. If your situation shows that your employer controlled your work the way an employer controls an employee, the New York State Workers’ Compensation Board may find that you were an employee who deserves benefits regardless of how you were classified on paper.
Misclassification is widespread in industries like construction, home health care, and app-based delivery work. Employers often use the independent contractor label to avoid paying workers’ compensation premiums and payroll taxes. When a misclassified worker gets hurt, they are left without coverage they should have had.
An attorney evaluates the actual facts of your work arrangement and tells you whether a reclassification challenge is viable.
Call (716) 854-2100. The evaluation is free.
How Does New York Determine If You Are an Employee or Independent Contractor?
New York applies a control test to determine whether someone classified as an independent contractor is actually an employee for workers’ compensation purposes. The test focuses on the reality of the working relationship, not the contract or the label.
What Is the Control Test for Workers’ Compensation in New York?
The central question is who controls how the work is performed. Under New York Workers’ Compensation Law, the key factor is whether the employer has the right to control the details of the work, not just the end result. When an employer sets your schedule, determines your methods, provides your tools or equipment, or prohibits you from working for others, those are indicators of an employment relationship.
What Factors Does the NYS Workers’ Compensation Board Examine?
The Workers’ Compensation Board examines who sets your schedule, who provides your tools, whether your work is integral to the employer’s business, and whether you can work for others simultaneously.
Factors supporting employee status include:
- The employer sets your work hours, location, or daily schedule
- The employer provides tools, equipment, vehicles, or uniforms
- The work is a core part of the employer’s regular business operations
- You cannot refuse assignments or work for competitors
- You are paid by the hour or by the week rather than per project
- The employer can terminate the relationship at will
Factors supporting true independent contractor status include operating your own separate business, providing services to multiple clients independently, and controlling how and when work is done. Most gig workers, construction day laborers, and home health aides in the Buffalo area have multiple factors pointing toward employee status.
Which Workers in Buffalo Are Most Often Misclassified as Independent Contractors?
Construction workers, home health aides, and app-based gig workers in Buffalo are the most frequently misclassified workers in Western New York. If you work in any of these sectors and were hurt, your situation warrants a legal evaluation.
Are Construction Workers and Subcontractors Covered?
Yes, in many cases. Construction is the industry where misclassification is most common and most legally contested. General contractors regularly classify day laborers and trade subcontractors as independent contractors to avoid workers’ compensation costs.
But if a general contractor controls when, where, and how those workers perform tasks on a job site, the Workers’ Compensation Board may find that an employment relationship exists. Buffalo’s ongoing waterfront and downtown construction activity makes this a frequent issue for injured workers in Erie County.
For construction-specific injuries, see our construction accident practice area.
What About Gig Workers: Uber, DoorDash, Instacart, and Amazon Flex?
App-based gig workers like Uber and DoorDash drivers may have a valid workers’ compensation claim in New York, depending on the specific platform and how the work relationship actually functions.
Major platforms classify their drivers and delivery workers as independent contractors, but several state proceedings have challenged that classification. In New York, the Workers’ Compensation Board evaluates each gig worker’s situation individually.
If you were injured while making deliveries or transporting passengers in Buffalo or anywhere in Western New York, an attorney evaluates whether a claim is viable given the platform and the circumstances of your work.
Are Home Health Aides and Personal Care Aides Covered?
Home health aides and personal care aides are among the most frequently misclassified workers in New York. Agencies often classify aides as independent contractors to reduce benefit costs, even when those aides work on agency-assigned schedules, serve agency-referred clients, and operate entirely under agency supervision.
Lewis & Lewis, P.C. has handled these cases extensively throughout Western New York. See our dedicated page on workers’ compensation for home health aides and personal care aides.
What If Your Employer Had No Workers’ Compensation Insurance?
The New York State Uninsured Employers Fund provides workers’ compensation benefits when your employer fails to carry required insurance, even in misclassification cases.
If you are reclassified as an employee and your employer has no coverage, you are not left without a remedy. The Fund, administered by the Workers’ Compensation Board, steps in as the payer of benefits. Filing a claim with the Fund follows a different process than a standard claim and involves specific procedures an attorney navigates from the start.
Employers who fail to carry required workers’ compensation insurance also face significant civil and criminal penalties under New York law.
Call (716) 854-2100 if your employer had no insurance and you were hurt on the job.
How Do You Prove You Were Misclassified as an Independent Contractor?
Proving misclassification requires documentation of the actual working relationship. The goal is to show the Workers’ Compensation Board that, regardless of the contract label, the employer treated you as an employee.
Useful evidence includes:
- Text messages or emails showing the employer directed your daily tasks or schedule
- Records showing the employer provided your tools, vehicle, equipment, or uniform
- Payment records showing hourly or weekly payments rather than project-based fees
- Documentation showing the employer assigned your specific clients, routes, or job sites
- Evidence that you were prohibited from working for competitors or other clients
Lewis & Lewis, P.C. helps clients gather and organize this evidence from the beginning of the case. The earlier you start, the more documentation is available.
Ask Lewis & Lewis, P.C.
I signed an independent contractor agreement. Does that prevent me from getting workers’ comp?
Not necessarily. In New York, signing an independent contractor agreement does not automatically make you one under the law. The Workers’ Compensation Board looks at the actual working relationship, not just what the contract says. If the employer controlled your work in ways that indicate employment, a signed agreement calling you a contractor does not bar a workers’ compensation claim.
My employer paid me in cash and never gave me a 1099 or W-2. Can I still file a workers’ comp claim?
Yes. Cash payment and the absence of tax documentation do not determine your legal classification. The absence of a 1099 may actually support a misclassification argument, since legitimate independent contractors typically receive them. The Workers’ Compensation Board evaluates the nature of the work relationship regardless of how payment was documented.
What if I was hurt working for an app like Uber or DoorDash in Buffalo?
Platform workers have contested independent contractor classifications in New York. Whether a workers’ comp claim is viable depends on the specific platform, the nature of the work arrangement, and the facts of your injury. Lewis & Lewis, P.C. evaluates gig worker situations individually at no cost. Do not assume the platform’s classification controls your legal rights.
Can I file for workers’ comp if I was hurt while working a side job as an independent contractor?
It depends on the nature of the work and the relationship. If a second employer exercised enough control over your work to qualify as an employment relationship under New York law, a workers’ compensation claim against that employer may be available regardless of your primary employment status. An attorney evaluates whether the relationship meets the threshold.
How Lewis & Lewis P.C. Helps Misclassified Workers in Buffalo
With more than $1 billion recovered for injured workers across Western New York since 1944, Lewis & Lewis P.C. has represented injured workers across Western New York since the 1940s, including workers who were told they were independent contractors and later found to be employees with full workers’ compensation rights.
We know the New York State Workers’ Compensation Board process, the industries in Buffalo where misclassification is most common, and how to build the documentation that supports a reclassification argument.
Our attorneys have handled independent contractor workers’ compensation cases involving construction workers in Erie County, home health aides across the Buffalo metro area, delivery drivers, and workers in manufacturing and service industries throughout Western New York.
We handle workers’ compensation cases on a contingency basis. You pay nothing unless we recover benefits. Consultations are free.
Learn more about workers’ compensation in New York | Construction accident claims | Workers’ Comp FAQ
Frequently Asked Questions About Independent Contractor Workers’ Comp in New York
How much does it cost to hire Lewis & Lewis P.C. for an independent contractor workers’ comp case?
Nothing upfront. Lewis & Lewis P.C. handles these cases on a contingency fee basis. New York regulates workers’ compensation attorney fees, and they are subject to Workers’ Compensation Board approval. You pay nothing unless we recover benefits for you.
How long does it take to resolve an independent contractor workers’ comp case?
Misclassification cases typically take longer than standard workers’ compensation claims because the question of employment status must be resolved before benefits are addressed. A hearing before a Workers’ Compensation Law Judge is usually required. Cases can take a year or more depending on the complexity of the classification dispute and the evidence available. An attorney gives you a realistic timeline once your situation is evaluated.
What if the company I worked for went out of business after I was injured?
If your employer went out of business and had no workers’ compensation insurance, the New York State Uninsured Employers Fund may still provide benefits. If the employer had insurance but closed, the insurer remains responsible for the claim regardless of the employer’s status. An attorney identifies every available source of recovery.
Can I be retaliated against for challenging my independent contractor classification?
New York law prohibits retaliation against workers who file workers’ compensation claims. If your employer or platform takes adverse action against you after you challenge your classification, including termination, reduced work, or blacklisting, that retaliation may support a separate legal claim. An attorney evaluates both the workers’ compensation claim and any related retaliation.
Talk to a Buffalo Independent Contractor Workers’ Compensation Lawyer
The fact that your employer called you a contractor does not close the door to workers’ comp benefits. What matters is the actual nature of your work relationship, and New York law may be on your side.
Lewis & Lewis P.C. has offices in Depew, Buffalo, Niagara Falls, Olean, Batavia, and Jamestown. We represent injured workers across Western New York. The consultation is free. You pay nothing unless we recover.
Call (716) 854-2100 or contact us online. We evaluate independent contractor situations and tell you honestly where you stand.
430 Dick Rd, Depew, NY 14043 | 37 Franklin St Suite 800, Buffalo, NY 14202 | (716) 854-2100
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Phone: (716) 442-8987
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