HR Fly on the Wall: Workers’ Compensation Preliminary Hearing, Part 2

In Part One of this series, theHR Fly listened in on the beginning of a workers’ compensation preliminaryhearing, as the Administrative Law Judge (ALJ) started the hearing, set theparameters and questioned the employment attorney as to the employer’sself-insurance against workers’ compensation claims.

In Part Two, the HR Fly gets tolisten in as the ALJ reviews the evidence presented by the parties and issuessome rulings.  Things are about to getinteresting.  Eat your heart out, Jeff Goldblum!

HR Fly: Put your ear to the wall and listen for the buzz…

ALJ: On the question of employee classification, Ihave evidence from Acme in the form of payroll records and deposition testimonyfrom the head of payroll, Ms. Baker, who testified that Mr. Smith began workingfor Acme full-time, but that he was later re-classified as an independent contractor after he joined Carpenters Local290.  From Mr. Smith, I have hisdeposition testimony, his union membership certification and written interrogatoriesfrom his supervisor, Mr. Stevens, Acme’s General Contractor.

Pzzt: The ALJ is prepared to issue a ruling on the question of independent contractor status.  Oh, and about that quadruple vision?  That’s normal.  We have two eyes, but they’re compound.  Just trust me. 
ALJ: On the question of employee classification, I find in favor of Mr. Smith.  The testimony from Mr. Stevens indicates that he provided direct guidance and direction to Mr. Smith when he was employed full-time by Acme and that even after he joined Carpenters Local 290, Mr. Smith continued to receive specific instructions from Mr. Stevens.  Those instructions included specific measurements for lumber cuts, locations for spackling work on the loading dock and workplace rules and regulations regarding safety. 
Ms. Jones: Your Honor, once Mr. Smith joined Carpenters Local 290, his guidance began to come directly from the union.  Mr. Stevens continued to oversee the projects as a whole, but the evidence suggests that he ceased providing specific instructions to Mr. Smith. 
ALJ: Mr. Smith?
Mr. Smith: That’s not entirely true, Your Honor.  As I mentioned in my deposition, I did begin to receive some instruction from the union, but Mr. Stevens was very much present during my daily activities even after I joined.  He supervised me directly and offered specific instructions on my work, as you indicated. 
ALJ: Yes, I do recall that testimony.  Again, I’m finding in favor of Mr. Smith on this question.  Ms. Jones, do you have anything else to add? 
Ms. Jones: We may take an appeal from that decision, Your Honor.  I just want to reserve our right to do so on the record.
Pzzt: The ALJ found in favor of Mr. Smith because Mr. Stevens, Acme’s general contractor, continued to supervise and direct his work after he joined the union and Acme intended to re-classify him as an independent contractor.  Employers who wish to hire or properly classify and maintain individuals as independent contractors must be familiar with the legal requirements for independent contractor status in their states.  
For example, if I wanted you to be my independent contractor, I’d suggest you buzz around that jelly doughnut sitting over there.  But hey, if you want to eat the jelly first, as opposed to the delicious-looking sugar-crusted dough, that’s entirely up to you. 
Check back tomorrow for the third and final installment of this riveting workers’ compensation preliminary hearing and the HR Fly’s commentary as the ALJ rules on the question of the employee, Mr. Smith’s intoxication at the time of his accident. 

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