"Independent" roofer's right to collect workers compensation

An insurer recently lost another round in the ubiquitous battle over whether an employee can be defined as an independent contractor and denied the right to collect workers compensation.  Many employers, some as large as FedEx, attempt to treat their employees as independent contractors in an effort to minimize employee benefits and expenses.

In the case of FedEx, the business plan was wildly profitable as employees were even required to buy their delivery trucks; a recent court ruling may have finally taken at least some of the FedEx profit out of this arrangement, but we constantly run into injured employees whose bosses have created a tax and wage scheme that cheats their employees. Sometimes these "plans" are in a gray area of mixed control (in other words, the "employee" may actually enjoy some of the benefits of an independent working relationship); in other cases we have encountered, the plan has been devised by aggressive accountants and gullible employers are victimized along with their employees if they haven't purchased needed protections.

In Loos v. J.B. Installed Sales, Inc., the comp magistrate considered the roofing company's tax records as the "most relevant" factor in determining that Loos was an independent contractor rather than an "employee".  The Workers Comp Appeal Board and the Court of Appeals reversed that decision and noted that under the pertinent statute, the employer's wage and tax treatment of the individual were not even a consideration:  the question was whether the employer "controlled" the relationship under MCL 418.161(1)(n).  In the short term, at least, Loos' employer was lucky; since he failed to purchase comp coverage for Loos, the general contractor had to provide it.