Do Workers' Comp Laws Protect Independent Contractors in North Carolina?

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The short answer is no, an independent contractor is not covered by Workers’ Compensation laws in North Carolina.  However, the answer really depends on the situation.  If the independent contractor is:

performing the functions of an employee,

taking guidance and direction from the employer,

has his or her hours set by the employer,

working for no other employer, and

basically acting as an employee

then the North Carolina Industrial Commission may view this person as an employee rather than an independent contractor.  As a result, this person may be covered by the Workers’ Compensation Act in North Carolina.

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An independent contractor who has multiple “employers” or clients, sets his/her own hours for work, and performs the job independent of the client employer will most likely not be covered by the Workers’ Compensation Act in North Carolina.

Examples are often the most helpful.

Probably “employee” – A person is hired as an independent contractor to enter data.  This person is given specific hours to work, takes direction from a supervisor within the company, and attends training classes for the company.  This person will most likely be considered an employee by the North Carolina Industrial Commission.

Independent Contractor – A person is hired to enter data.  The person decides the hours of the day they work.  The person provides the services from their home and/or the employer’s office.   The person takes limited or no direction from the employer as long as the job gets completed.  This person will most likely be considered an independent contractor by the North Carolina Industrial Commission.

Independent contractors are not specifically defined by the North Carolina Industrial Commission, however, employees are defined by North Carolina General Statute, Section 97-2 of the Workers’ Compensation Act.   The term “employee” means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed, but excluding persons whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer.”

Obviously each case must be reviewed carefully to determine if the employer-employee relationship exists for purposes of determining whether there is a Workers’ Compensation claim.

Can My Chapter 13 Bankruptcy Payment Change?

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The bankruptcy law allows Chapter 13 bankruptcies to last anywhere from three to five years. If you are required to file a Chapter 13 bankruptcy because you do not pass the Means Test, then your Chapter 13 repayment plan is required to be for 60 months, unless you can afford to repay 100% of your unsecured debt in less than 60 months.

Often, Chapter 13 bankruptcy debtors are apprehensive of their Chapter 13 payment for fear that over the course of three to five years, their job situation may change. It is common for people to ask, “Will my Chapter 13 payment change during my bankruptcy?”

There are two ways to answer this question:

1) Whether your Chapter 13 payment will increase during your bankruptcy, and

2) Whether your Chapter 13 payment will decrease during your bankruptcy.

Bankruptcy Questions

First, let’s discuss whether your Chapter 13 payment will increase during your bankruptcy. The bankruptcy Trustee has the ability to examine your pay stubs, bank statements, and tax returns at any time during your bankruptcy. Usually, the Trustee will do a review of your case annually. If, for example, you receive a major pay increase during your bankruptcy, the Trustee may increase your plan payments to reflect your new income. Sometimes, your Chapter 13 payment is arbitrarily increased by the Trustee to ensure that enough money is being paid for the Trustee to pay all of your secured debts (house, car, furniture, etc).
Now let’s discuss whether your Chapter 13 payment will decrease during your bankruptcy. If your pay decreases significantly, it is sometimes possible to file a motion with the court to modify your plan payments. Your attorney will be able to discuss your options with you if you suffer a job loss or a major pay decrease. Whether a plan payment can be decreased depends on the specific facts of the case – for example, how much debt is owed, how much is owed to secured creditors, how much is owed in taxes, etc.

The bottom line is that you are usually not locked into your Chapter 13 payment – if your income significantly increases or decreases, there is a chance that your Chapter 13 payment can or will be modified to reflect the change in income. However, you will need to speak with your bankruptcy attorney about the specifics of your case.

Do All Employers Need to Provide Workers' Compensation Insurance?

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In short, it depends. According to North Carolina General Statute §§ 97-2(1), 97-2(3), 97-93 an employer must carry workers’ compensation insurance if:

Three or more employees regularly employed in the same business or establishment, or

One or more employees employed in activities which involve the use or presence of radiation, or

If providing agriculture or domestic services, 10 or more full?time nonseasonal agricultural workers regularly employed by the employer

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This is to ensure that if an employee were to be injured on the job then the insurance company could handle the cost, therefore limiting the risk of the employer being insolvent and not being able to pay for treatment.  This also ensures that the employee will receive compensation for their treatment sooner.

However, there are some exceptions to this rule.  One of these exceptions is when there is an independent contractor working for an employer.

Since an independent contractor is not an employee, the employer does not have to provide workers’ compensation insurance for them.  Since, technically, they are not an employee, the North Carolina Industrial Commission does not have jurisdiction over this relationship.  The definition for employee is defined by North Carolina statute §97-2, but there are some easy ways to determine if you are an employee or an independent contractor.  The first of these would be to look at the kind of tax form you receive.  If you are receiving a W2 then you are most likely an employee, if you are receiving a 1099 then you are probably an independent contractor.  Also do you get paid overtime or certain hourly wages? Do you wear a uniform that the owner of the business has required you to wear? These are all helpful ways to determine if your “employer” must have workers’ compensation insurance  in case you are injured on the job.

How Are Workers' Compensation Benefits Determined?

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Workers’s compensation benefits are determined by a variety of factors.  One of the first questions is whether the injured worker is able to return to their job?  When a worker is injured on the job they are sent to a physician to determine the extent of their injury.  The physician may allow the worker to return to work and they will receive their regular salary as they perform their regular work duties.

On the other hand, the physician may determine the employee cannot work their regular job and may allow the worker to work, for example, only 20 hours per week.  If they are seriously injured, the physician may not allow them to return to the job until they reach what is known as “maximum medical improvement” or “M.M.I.”.  If the worker is unable to work their full schedule or a partial schedule, the employer’s workers’ compensation insurance company must compensate the injured worker’s benefits, such as salary, the worker would had received if they had not been injured.

Normally, the injured worker receives two-thirds of their average weekly wages lost due to the injury. The worker usually receives a weekly paycheck from their employer’s workers’ compensation insurance company to compensate the worker due to the lost time because of the injury.

Doctor Examining an X-Ray | Workers' Compensation

You may ask why only two thirds of the average weekly wages?  The general consensus is if the worker is receiving “full” benefits or 100% of their usual income, the worker would have no “incentive” to return to work.  Also the worker does not have to pay transportation cost or wear and tear on a vehicle if they are at home injured. Therefore, the North Carolina Industrial Commission has ruled that two-thirds of the worker’s salary is fair compensation.

The worker should receive these benefits until they are allowed, by the physician, to return to work or until a settlement is reached with the insurance company of the employer.

If you have been injured while at work it is important to contact a North Carolina workers’ compensation lawyer immediately.

What Injuries are NOT Covered by Workers’ Compensation Laws?

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North Carolina Workers' Compensation Lawyers | Duncan Law, PLLCThe first question to ask is whether your employer falls under the Workers’ Compensation Act.  Generally speaking, an employer with three or more employees is required to carry workers’ compensation insurance.  As a result, if your employer has only two employees, they are most likely not required to carry workers’ compensation insurance and any injury you sustain would not be covered under workers’ compensation.  However, it will depend on the structure of the legal entity of the business and they type of business, so this number may be more or less.

You must also be an employee to receive workers’ compensation benefits.  Contract “employees” or independent contractors are not covered by the workers’ compensation act, so an injury incurred while working as a contract “employee” may not be covered by workers’ compensation

Next, is the injury sustained by an accident while performing your assigned job functions?  This question can best be answered by comparing what injuries can and cannot be covered by workers’ compensation.  Injuries you incur while on the job and while performing your job duties are generally included in a workers’ compensation claim.

Examples of Injuries Included in Workers’ Compensation:

If you work in a warehouse and a crate falls and breaks your foot as you are attempting to remove it from a shelf, the injury would be considered a workers’ compensation claim.

You are a sales person and while at a customer’s location you are accidentally hit by a forklift, this would most likely be a workers’ compensation claim.

Examples of Injuries NOT Included in Workers’ Compensation:

You are chasing a fellow employee in the parking lot after work, and you trip, fall and break your foot.  This would most likely not be considered a workers’ compensation claim.  You are obviously at work, but you are not performing your job duties when the accident occurred.

You are a sales person and you stopped to buy gas.  When you went into the store to purchase a cup of coffee, you slip and fall and you break your leg.  You may have a claim against the store where you fell, but you would most likely not have a workers’ compensation claim.

As you can tell by these examples, a workers’ compensation claim requires the accident occurred while you were an employee performing your job functions. Like most areas of the law, workers’ compensation claims can become pretty complex. To learn more, contact our Charlotte, NC workers’ compensation lawyers or our Greensboro, NC workers’ compensation lawyers.

What If I Stop Receiving Mortgage or Car Statements After Filing for Bankruptcy?

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Once you file a bankruptcy, an automatic stay goes into effect.  This automatic stay states that no creditor can try to collect any debt from you; according to statute 11 U.S.C § 362 (6), “any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title”.   If a creditor does contact you with payment demands, a Charlotte bankruptcy lawyer or Greensboro bankruptcy lawyer can file what’s known as a “motion for sanctions” which reprimands the creditors attempting to collect the debt.

Bills in Mailbox

Even though you are current, and are going to keep your house or car; many creditors will still not send you a bill once you have filed the bankruptcy.  Ever heard the phrase, “better safe than sorry”?  Well, this is exactly why you are not receiving your statements now; they do not in any way want to violate the automatic stay.  If you had set up automatic bill pay, this will likely stop as well.  You just have to remember regardless of whether you receive a bill, you must continue to make your house or car payment!  If not, the creditors have the legal right to foreclose on your home or repossess your vehicle.

What can you do?  Simply call them and request that they still continue to send you your statements.  They may send something to your bankruptcy attorney asking for he/she to sign off to give permission for you to resume receiving statements for their records, but in most cases, it is as simple as that.  Again, the main reason a creditor stops sending you statements is because they do not want those statements to be viewed as an effort to collect a debt which would violate the automatic stay that goes into effect when your bankruptcy is filed.

Can I Still Get Workers' Compensation Benefits If I Return to Work?

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Returning to work after suffering an injury at work can be a risky move.  If your claim says that you are completely unable to work and then you return to work while you are still able to receive workers compensation benefits, then your employer no longer has to continue paying your workers compensation benefits.

Injury at Work | Charlotte, NC & Greensboro, NCThere is an option to have a trial return to work.  According to North Carolina Statute  §97-32.1, this is where you will return to work for a certain amount of time (up to 9 months), during this period you can still receive partial benefits from your employer.  You would have to file certain forms and paperwork to do this.  You want to make sure your employer and the Industrial Commission are fully aware that this is simply a trial period and you are not returning to work permanently at the current time.  If you make a full return to work then your compensation benefits will be terminated.  If during this trial period it is determined that you are still unfit to work then you can continue to receive full benefits that will be unimpaired by your trial return to work.  The trial period can only last for a maximum of nine months.

In summary, in most situations if you fully return to work you will no longer receive workers’ compensation payments.  However, you have a couple options other than fully returning to work. First, you can go back to work on a limited basis and receive reduced payments. A second option is returning to work for a trial period and, if you then decide you are not ready for a full return, then your full payments will resume and be unaffected.  The main point is if you and your doctor both feel you are not ready to return to work then you should consult your workers’ compensation attorney before deciding to return to work. Returning to work prematurely will cause you to lose any future benefits.

What if I Accidentally Leave a Creditor Off of My Bankruptcy?

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Under the stress of a bankruptcy filing, there are times when a creditor is inadvertently forgotten and left off of a bankruptcy filing. If you file Chapter 7 bankruptcy or Chapter 13 bankruptcy and realize that you accidentally left a creditor off of your bankruptcy, it may not be too late.

Bills in MailboxIf you realize before your creditors’ meeting that you have omitted a creditor, you will need to contact your attorney immediately. Generally speaking, you can add a creditor before your creditors’ meeting. Your attorney may charge a small fee and the court will charge a filing fee, but for most debtors these fees are insignificant compared to the amount owed to the omitted creditor. Your attorney will also send out the proper notices to the omitted creditor after the creditor has been added to the bankruptcy filing.

If you realize after your creditors’ meeting that you have omitted a creditor, there are more strict time limitations to adding a creditor and you will need to contact your attorney immediately to determine whether or not the time frame for you to add a creditor has lapsed.

The most important way to avoid accidentally omitting a creditor from your bankruptcy prior to the filing of your petition is to double-check your credit report from each of the three main credit reporting agencies: Equifax, TransUnion, and Experian (visit www.AnnualCreditReport.com to get your free credit report). You will also want to double-check your bills from your creditors to make sure that you have included all of your debts on your bankruptcy petition.