Presumptions are a useful method by which courts and administrative bodies save themselves time and trouble by simply “assuming” that certain facts are already proven, unless someone wishes to prove otherwise. Usually, an assumption is made for the facts on a single instance, with no long-standing, ongoing consequences for any party. That is no longer the case
The “Fair Play Act” (NY Labor Law, Article 25A) makes a presumption so sweeping that its consequences may not have been appreciated at the time of passage in 2010. It contains (Sect. 861-c) a presumption that any person performing services for a construction contractor is an employee of that contractor – unless an elaborate set of steps (15 or more) is taken to rebut the presumption. Such a presumption would make a worker covered under the contractor’s work comp policy – but what if the worker wanted to sue the contractor instead? Such suits are quite common – and quite lucrative. (WCxKit)
In that case, the contractor has a benefit never before given – an assumption that the negligence case must be dismissed – even though the two parties have never given any indication that they had an employer/employee relationship. To resolve these matters, the WCB is given exclusive power to determine if such a relationship exists.
The employer can remain silent and compel the worker to prove that all fifteen indicia existed which would show that he was not an employee, however, the employer is better off immediately serving a subpoena upon the negligence plaintiff, appearing in the comp claim, for all business and tax records going back as far as they are maintained. (IRS records, in NY, can be obtained by serving a subpoena on the worker, directing that he produce certified copies of his federal tax returns.)
Regardless of what presumptions, and the contractor’s records, might show, there is no substitute for seeing what the worker has been representing, under penalty of perjury, to the IRS. True, the NY comp and labor laws allow for inconsistent findings that permit a person to be an employee for some purposes and an independent contractor for tax purposes – but many workers would prefer not to have to explain their tax returns at length. And the explanations might drift toward exploring the validity of deductions.
When passing the Fair Play Act, the legislature was assuredly not intending to hand plaintiff negligence lawyers in construction accidents a can of worms, much less a den of rattlesnakes, but that is precisely what it has done. Defense of construction site accidents will be experiencing a sea-change in 2011. (WCxKit)
Note: The subpoena is issued under Sect. 119 of the NY Work Comp Law since, at this point, the matter is before the Workers Compensation Board. Enforcement of the subpoena is, however, in Supreme Court for the county where the comp hearing is heard, and is subject to the Civil Practice Law and Rules (CPLR).
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, New York. He is a frequent writer and speaker, and has represented employers in the areas of workers' compensation, Social Security disability, employee disability plans, and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100.
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