Hamilton, Westby, Antonowich & Anderson, L.L.C.
This paper was written and presented by Mr. Anderson in December 1998 as part of a workers' compensation seminar offered by the Council on Education in Management. The seminar is designed for employers, insurers, self-insureds and anyone involved with the management of workers' compensation claims. If you would like to obtain more information on this seminar contact the Council or Mr. Anderson.
Under Georgia law, in order for a person to be eligible for workers' compensation benefits they must first be found to be an employee or a statutory employee. See O.C.G.A. §§ 34-9-1 and 34-9-8. If a person is found to be an "independent contractor" pursuant to the Workers' Compensation Act then they are not entitled to workers' compensation benefits. It is important for an employer to remember that by successfully defending a case on the grounds that the person is not an employee, the employer also loses the exclusive remedy protection of the Workers' Compensation Act such that they are exposed to tort liability. O.C.G.A. § 34-9-11.
The Georgia workers' compensation system does not necessarily consider a person to be an independent contractor in the same manner in which the general work force or industry may. While there are specific guidelines which have been established in Georgia to determine whether a person is an independent contractor, different weight is applied to these guidelines such that it is often a gray area and is open to different interpretations. The overall test under Georgia law used by courts to make a determination as to whether a person is an employee or an independent contractor is whether the alleged employer has the right to control the time, the manner, the methods, and the means of execution of the work to be completed under the contract. This is as opposed to the alleged employer's right to insist upon a conforming final product. An entity does not become an employer merely because they provide specifications for a final product, however, if they control the time, manner and method of completing the final product, they are more likely to be found to be an employer. See Simpkins v. Uniguard Mutual Ins. Co., 130 Ga.App. 535, 203 S.E.2d 742 (1974).
Georgia courts have established a checklist of factors which are utilized to determine whether there is an employer/employee relationship. Again, these factors are applied somewhat differently depending upon the trier of fact. While this is not a definitive test, the Georgia Court of Appeals has arguably adopted this checklist which is based upon the Restatement Agency Second, Section 220(2). The checklist is:
See, R.E. Moss v. Central of Georgia Railroad Co., 135 Ga.App. 904, 219 S.E.2d 593 (1973).
Examining this checklist more closely: as the control which an alleged employer has over an alleged employee increases, so does the chance that the worker will be considered an employee for workers' compensation purposes. Employers Mutual Liability Ins. Co. v. Johnson, 104 Ga.App. 617, 122 S.E.2d 308 (1961). If the alleged employer has the right to hire and terminate employees who are employed by the "subcontractor," then this has been found by the Georgia courts to support a finding of an employer/employee relationship. See Clements v. Georgia Power Co., 148 Ga.App. 745, 252 S.E.2d 635 (1979). The opposite is also true in that if the "subcontractor" is entirely in charge of hiring and terminating his or her workers, then this supports a finding of an independent contractor relationship. Simpkins v. Uniguard Mutual Ins. Co., 130 Ga.App. 535, 203 S.E.2d 742 (1974).
Whether the one employed is engaged in a distinct occupation or business or whether the work of the worker is part of the regular business of the alleged employer is an important factor. In layman's terms, is the worker performing part of the daily business activities of the alleged employer or has the worker been contracted with to perform some non-integral part of the alleged employer's business. For example, a law firm retaining an attorney to litigate cases would arguably be part of the law firm's normal business as opposed to hiring a cleaning crew to dispose of trash.
Another factor is whether the work to be performed is completed under the direction of the alleged employer or by a specialist who needs no supervision. This is a determination as to how much control the alleged employer has over the alleged employee. For example, if the "subcontractor" supplies a foreman and no supervision is required by the alleged employer; if the "subcontractor" has a certain skill or expertise which the alleged employer does not have, and whether the alleged employee is in a separate and distinct business from the alleged employer are all factors to be considered. The more skill and expertise which a subcontractor has which are different from the alleged employer's business, the greater chance an independent contractor relationship will be found. R.E. Moss v. Central of Georgia Railroad Co., 135 Ga.App. 904, 219 S.E.2d 593 (1975).
If the alleged employer provides the tools and materials for the job, this is an indication of controlling the time, manner and method of the duties and makes the relationship more likely that of an employer/employee. (Id.).
The longer the alleged employee is working on the job, the more likely that an employer/employee relationship exists. (Id.) This will depend upon the type of job as well.
The method of payment for the work to be completed is also a factor. Specifically, a worker who is paid by the hour or receives a salary is more likely to be viewed as an employee. The worker who is paid a pre-determined price for a final product or is paid on a per unit basis, is more likely to be viewed as an independent contractor. Simpkins v. Uniguard Mutual Ins. Co., 130 Ga.App. 535, 203 S.E.2d 742 (1974).
The intention of the parties, while not entirely controlling, is generally considered one of the more important factors in determining the relationship. Obviously, a written contract is of great benefit to a trier of fact in determining the intention of the parties. If one intends to create an independent contractor relationship, it is advisable to have a written contract with the subcontractor indicating that an independent contractor relationship is being established. In addition, it should also be noted in the written agreement that the subcontractor is responsible for their own workers' compensation benefits. While this is not a guaranteed manner of avoiding workers' compensation liability, it will help in showing the intent of the parties. In addition to a written contract, a court will generally take testimony from the parties to the contract as to their intentions. It is also common for attorneys to obtain tax documentation from both the alleged employer and employee in order to determine whether the worker has listed him or herself as self-employed and whether the alleged employer withholds taxes and social security benefits from the alleged employee's wages. If the worker is listed as self-employed on the tax documentation and is also responsible for paying their own taxes, this increases the chances that the parties intended to create an independent contractor relationship.
The above checklist is not foolproof and is not entirely controlling. The trier of fact will look at all of the circumstances and make a determination as to whether a worker is an employee or an independent contractor. In summary, the employer wishing to establish an independent contractor relationship as opposed to an employer/employee relationship should take care not to control the time, manner and method of the work to be performed. They should also retain persons to complete the work who have enough expertise to complete the work without ongoing supervision. They should not provide the tools or materials for the job. They should require that the retained person pay their own taxes and the employer should issue a 1099 form. In addition, the employer should, if at all possible, not pay the worker by the hour but should pay a on a per job or per unit basis. Finally, the parties should have written agreement which clearly delineates their intention to create an independent contractor relationship.
An important consideration in attempting to defend a workers' compensation claim on the basis that the injured person is an independent contractor and not an employee is that the alleged employer will lose the exclusive remedy protection afforded under the Workers' Compensation Act. O.C.G.A. § 34-9-11 provides that the rights and remedies granted to an employee under the Workers' Compensation Act shall exclude all other rights and remedies of such an employee or other person standing in the employee's shoes against the employer and insurer. O.C.G.A. §§ 34-9-1(3) and 34-9-11. O.C.G.A. § 34-9-11(c) specifically provides the exclusive remedy protection for an employer which contracts with a temporary agency or leasing company so long as that agency or company has workers' compensation insurance. Successfully defending a workers' compensation claim on the basis that a worker is not an employee will expose the employer to possible tort actions.
The legislative intent behind this statute and the overall Workers' Compensation Act was that an employer would give up certain defenses, such as contributory negligence, in exchange for the Workers' Compensation Act placing a cap on liability and allowing some control over the medical treatment of an injured worker. Bluebell Globe Manufacturing Co. v. Baird, 64 Ga.App. 347, 13 S.E.2d 105 (1941).
While the Georgia courts have historically supported the legislative intent behind the exclusive remedy provision, there is a recent Georgia Supreme Court case which potentially threatens to undermine the exclusive remedy provision. In Potts v. UAP-GA AG.CHEM., Inc., S97G1889 (9-14-98), the Supreme Court reversed a granting of summary judgment to the employer and its branch manager finding that they were not entitled, as a matter of law, to tort immunity pursuant to the exclusive remedy provision of the Workers' Compensation Act. This case involved an employee who became sick after being exposed to cleaning chemicals on the job. The employee was in and out of the hospital and was treated for chemical poisoning and other possible conditions. One of the treating physicians discontinued the treatment for chemical poisoning and testified that the basis for this decision was that he had been told by the branch manager that the claimant could not possibly have been exposed to any chemicals on the job. The claimant eventually died and the claimant's widow and children brought a wrongful death and survival action against the employer and the employer's branch manager alleging fraud and intentional infliction of emotional distress. The Trial Court granted summary judgment finding that the action was barred by the exclusive remedy provision of the Workers' Compensation Act. This was affirmed by the Court of Appeals but was overturned by the Georgia Supreme Court.
The Georgia Supreme Court found that tort immunity is dependent upon the compensability of the injury under the Workers' Compensation Act. It held that the if the willful act of a third person was directed against an employee for personal reasons then this was not a compensable injury under the Workers' Compensation Act and there would be no tort immunity. In other words, the Supreme Court found that the injury, here the death, did not arise out of and in the course of the claimant's employment with the employer but arose out of personal animosity between the employer's branch manager and the employee. The Court also noted that the alleged fraud of misinforming the doctor did not occur during the claimant's employment or at the employer's place of business as it occurred once the claimant was in the hospital. The Court further found that the employee was not performing any job duties at the time the alleged fraud occurred. The Court found that damages, here the claimant's death, resulting from the alleged fraud of misinforming of the doctor, did not arise out of or in the course of the employment, but was instead as a result of intentional misconduct of the employer's branch manager and, as such, the exclusive remedy provision was not applicable.
Realizing that this opinion is only a ruling on a granting of a summary judgment motion and that the matter will now be referred back for a jury trial in a tort action, the opinion is of some concern to employers and insurers in that the Court appears to be chipping away at the exclusive remedy protection. From a legal point of view, the Court distinguishes this opinion from previous opinions which appear to be in conflict with it by stating that "the absence of any reasonable remedy in this case readily distinguishes it from those which involve an action for mere delay in payment for or authorization of medical treatment." (See, Bright v. Nimmo, 243 Ga. 378, 320 S.E.2d 365 (1984) where the Georgia Supreme Court held that the intentional delay of workers' compensation payments did not give rise to an independent cause of action against the employer or his insurer as penalties for such a delay were provided by the Workers' Compensation Act. See also, Aetna Casualty & Surety Co. v. Davis, 253 Ga. 376, 320 S.E.2d 368 (1984) where the Georgia Supreme Court denied the claimant's attempts to circumvent the exclusive remedy provision in finding that the Workers' Compensation Act provides penalties for the insurers controverting medical payments without reasonable grounds).
The dissenting opinion in Potts states that the claimant's death "flows from a work-related incident." That any statements by the employer's branch manager arose in the course of the claimant's employment and as such, the exclusive remedy provision should apply. The dissent also notes that by denying tort immunity, the Court is encouraging employers to refuse to speak with health care providers regarding work-related injuries.
One basis for the Court's distinguishing the Potts case from the prior above referenced cases appears to be that the Workers' Compensation Act provides for penalties and other remedies in the prior cases but not for the death Potts. The Workers' Compensation Act does provide for penalties in death claims. Arguably, O.C.G.A. § 34-9-265(e) provides for a 20% penalty to be imposed on death benefits where it is determined that the death of the employee was a direct result of an injury proximately caused by the intentional act of the employer with the specific intent to cause such injury. In the Potts case, if the alleged fraud of misinforming the doctor was entirely personal, then this does not fit within the definition of "injury" as defined by the Workers' Compensation Act and this penalty provision would not apply. See O.C.G.A. § 34-9-1.
While it is often said that bad facts make bad law, the Potts case appears to draw its primary distinction from the prior cases on the basis that the branch manager's comments were entirely personal and did not arise out of or in the course of the claimant's employment. The author suggests to employers, insurers and any of their agents that they be extremely careful in dealing with medical providers and also with subsequent employers of workers' compensation claimants. Only information which is true and can be proven in court should be provided to outside sources, such as medical providers. Under the Potts case, to do otherwise may allow a claimant to bypass the exclusive remedy protection of the Workers' Compensation Act.
When a employee provides a temporary substitute to perform that employee's work and the substitute is paid directly by the employee and not by the employer, one might imagine that the substitute worker would not be covered under the Workers' Compensation Act. If this situation occurs with the expressed or implied knowledge of the overall employer, that substitute worker is covered under workers' compensation just as the employee would be. This is true despite the fact that the substitute worker is not being paid by the employer. See, Hockmutch v. Perkins, 55 Ga.App. 649, 191 S.E. 156 (1937); Payne v. Rivers, 28 Ga.App. 28, 110 S.E. 45 (1921).
A unique situation arises where one employer loans an employee to another employer. For workers' compensation purposes, the employee is not actually employed for two (2) employers. The Georgia courts have developed the "loaned servant test" as a guideline to determine which employer will be responsible for workers' compensation benefits when a loaned employee is injured. As is true for the above-stated independent contractor checklist, this test will be applied differently by each individual trier of fact and allows for some gray areas. The three (3) part test is as follows:
If any one of the three (3) elements is not met, then the court should find that the borrowed employee remains the employee of the original employer. See, United States Fidelity & Guarantee Co. v. Forrester, 126 Ga.App. 762, 191 S.E.2d 787 (1972); Adams v. Johnson, 88 Ga.App. 94, 76 S.E.2d 135 (1953).
In order for a loaning employer and a borrowing employer to help understand their potential exposure, it is helpful if the two (2) employers have a written agreement setting out their intentions. It is suggested that the agreement should specify with as much detail as possible hours and duties for which the borrowed employee will work for each particular employer.
While it seems reasonable that if an employer engages the services of a temporary agency to provide a worker, then that employer should not be responsible for workers' compensation benefits for the temporary employee, this is not necessarily true. The Georgia Workers' Compensation Act has a provision which could make the employer liable despite the use of a temporary agency. This is also true in situations where a general contractor may be found liable for workers' compensation benefits for an employee for one of its subcontractors.
Specifically, O.C.G.A. § 34-9-8 provides that "a principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer." This is commonly referred to as the "statutory employer" provision of the Workers' Compensation Act. This Code Section allows an injured worker to pass through his or her immediate employer to seek workers' compensation benefits from any intermediate or principal employer. In the temporary agency situation, if the temporary agency does not have workers' compensation insurance, the injured temporary agency employee could potentially collect workers' compensation benefits from the overall employer that contracted with the temporary agency. In the contractor situation, the general contractor will sublet work out to subcontractors who hire employees. If a subcontractor's employee is injured in a compensable case and if the subcontractor does not have workers' compensation insurance, the employee of the subcontractor may "climb up the ladder" to the general contractor and pursue their workers' compensation insurance. See, O.C.G.A. §§ 34-9-8, and 34-9-11.
The best way for an employer/general contractor to protect themselves from claims of this nature is to require that the subcontractor or temporary agency provide proof of carrying workers' compensation insurance for its workers. Typically, this is accomplished with a certificate of insurance. In addition, an employer may also contact the State Board of Workers' Compensation Coverage Department in an effort to determine whether a temporary agency/subcontractor has workers' compensation insurance. As a practical matter, the temporary agency/subcontractor could cancel its insurance the day after obtaining a certificate of insurance and registering with the State Board of Workers' Compensation. As such, these suggestions are not full proof. Out of an abundance of caution, an employer/general contractor should contact the insurance company listed on the certificate of insurance in an effort to verify current coverage and the type of coverage. Common sense should dictate in this regard and an employer/general contractor should deal only with reputable subcontractors and temporary agencies who have a proven, trusted reputation in the community.
To the author's knowledge, there have been no reported workers' compensation cases involving injuries to telecommuters in Georgia. In addition, case law regarding telecommuters is extremely limited in other jurisdictions. There are at least three (3) possible factors that are responsible for this limited case law. First, the majority of workers' compensation cases prior to hearing are settled. Second, the increase in home based employees is a relatively recent development. Third, there is an argument that the lack of telecommuter cases is in part based upon the telecommuter's fear that reporting a work-related injury may result in losing the ability to work at home.
When considering at-home injuries, it is essential to first make the determination that the person injured is an employee. A determination must be made as to whether that person may be an independent contractor as opposed to an employee. (See sub-section II of this paper).
The primary difficulty from an employer's point of view with at-home injuries is that an employer normally controls the condition of its premises where its employees are engaged in performing their duties. If a liquid is spilled on a floor and it is left for an employee to slip on, the employer arguably had control over whether that liquid and the danger associated with it were properly and timely handled. An employer reaps benefits of minimizing the dangers at the work place as it will minimize injuries. The responsibility of assuring a safe work environment typically ends at the employer's property line.
Georgia Courts have found that having a home office is an important factor for the determination of subject matter jurisdiction for workers' compensation purposes. In Conwood Corporation v. Guinn, 201 Ga.App. 43, 410 S.E.2d 315, the Georgia Court of Appeals held that an employee whose actual accident occurred in Tennessee could still file a claim in Georgia. This was based on the fact that the employee maintained an office in his home in Georgia because the employer required him to have a place to keep "merchandise, samples, and damaged goods;" and that, in addition to storing samples and damaged goods in his home office, the employee conducted company business from his home office, including keeping records and preparing daily reports. The employee also deducted the cost of his home office and all expenses associated therewith on his Federal income tax return; he received goods shipped by the employer to him at his home; and he began and ended each workday from his home office. In addition to these at-home office activities, the employee also spent at least one-half of his time calling on clients in the State of Georgia. This case begins to provide some insight into the Court of Appeals' possible acceptance of telecommuter, at-home injury claims. The fact that the Court finds the employee's at home activities to be sufficient to provide subject matter jurisdiction indicates that the Court will recognize telecommuter claims. The problem then becomes what exceptions and limitations the Court will place on at-home injuries.
The Courts will have to determine how the "going and coming" rule and the "ingress" and "egress" rule will be applied in telecommuter cases. In general, to be compensable, an injury does not have to occur after an employee is actively engaged in their employment duties. An employee is entitled to a reasonable time for ingress and egress from the place of work while on the premises of the employer. Peoples v. Emory University, 206 Ga.App. 213, 424 S.E.2d, 874 (1992); Crawford v. Meyer, 195 Ga.App. 867, 395 S.E.2d 327 (1990); see also, DeHowitt v. Hartford Fire & Ins. Co., 99 Ga.App. 147, 108 S.E.2d 280 (1959); U.S. Casualty Co. v. Russell, 98 Ga.App. 181, 105 S.E.2 378 (1958). If an employee is injured on an employer's property within a reasonable time of ingress or egress, it is generally accepted that such an injury would arise out of and in the course of the employee's employment and would, therefore, be compensable. While a "reasonable time" for ingress and egress has not been statutorily defined, case law has provided us with the knowledge that an employee taking 30 minutes from leaving their automobile in a company parking lot and beginning work was not an unreasonable time. See, United States Casualty Co. v. Russell, 98 Ga.App. 181,105 S.E.2d 378 (1958); see also, Williams v. American Mutual Liability Ins. Co., 72 Ga.App. 205, 33 S.E.2d 451 (1945).
When an employee is injured in, or going to or from, a parking lot which is owned or operated and maintained by the employer, the accident is generally compensable. However, when an injury occurs in a public parking lot which is not owned or controlled by the employer, the injury is not compensable. See, City of Atlanta v. Spearman, 209 Ga.App. 644, 434 S.E.2d 87 (1983); Tate v. Bruno's, Inc. d/b/a Food Max, 200 Ga.App. 395 408 S.E.2d 456 (1991). This distinction raises the question as to how the courts will deal with the driveway, garage, etc. of a telecommuter's home. Clearly, the employer does not own or operate these areas, however, the ingress and egress rule may be used to argue that this claim should be compensable for a telecommuter.
In Georgia, generally an employee injured while going to or from his place of employment is not "in the course of employment" and is, therefore, not entitled to workers' compensation benefits. See, O.C.G.A. § 34-9-1; Jose Andre Painting v. Jaimes, 207 Ga.App. 596, 420 S.E.2d 640 (1993); Bituminous Casualty Corp. v. Humphries, 91 Ga.App. 271, 85 S.E.2d 456 (1954). Please note that this general rule has numerous exceptions and is only applicable where an employee has set hours and a set location of employment and where travel is not part of the employment. See, Corbin v. Liberty Mutual Ins. Co., 117 Ga.App. 823, 162 S.E.2d 226 (1968). Two primary general exceptions to this rule are where the employer either furnishes transportation or reimburses the employee the cost for transportation; and where the travel has a business purpose, as well as a personal purpose, such that it becomes a "dual purpose." Generally, this dual purpose occurs when an employee is asked to perform a specific job duty while in the process of going to or coming from work and can also occur where the employment contract and duties are so vaguely understood that the employee can show some benefit to the employer taking place during this travel.
Because the work at-home relationship extends the concept of the employer's premises to include the employee's home, it is conceivable that the result may cause an employee's travel between the home and the employee's primary business to become compensable.
While Georgia has not yet decided this issue, other jurisdictions have developed a "dual purpose" test to determine whether travel between the home and office will be compensable should an injury occur. Examples would include whether the travel would have occurred "but for" the personal purpose of going home after work. In most of these cases where the court has relied upon the "dual purpose" test to deny compensability, the use of the home was for the convenience of the employee and was not done on a regular basis. See Larson's, Section 18.31, et seq. It is conceivable that when the work at-home activities are part of the actual employment contract, that the "going and coming rule" will no longer apply to deny workers' compensation coverage to an employee injured traveling between his home office and his employer's primary business location.
As the use of technology continues to increase, more employees are likely to become telecommuters. The overall problem with telecommuters, from a workers' compensation point of view, is making a determination as to when they are working and when they are not working. This by definition raises the question as to whether an injury "arose out of and in the course of" that employee's employment.
As there has been no direction from the courts or the legislature in Georgia, it is difficult to predict what steps can be taken to minimize an employer's exposure for telecommuters. The author suggests that it is essential that the employee and employer enter into a written contract defining when the telecommuter will be considered at work. For example, certain hours should be established. Perhaps a specific room in the employee's home can be established as the at-home work site. Maybe the employer will require that the employee be logged into the company's computer. Other activities, such as gathering notes and documents and beginning to plan one's day over coffee at the kitchen table should specifically be excluded as non-work activities. In addition to these steps, it will likely be useful if an employer travels to the employee's home and inspects the work area. This will allow the parties to clearly understand the written agreement outlining the work duties and areas, and will also allow the employer to arguably have some control over the work area and its safety. Of course, from a court's point of view, the fact that an employer has visited and approved a work area within someone's home will certainly indicate that the employee is a telecommuter with the permission of the employer.
It is also suggested that before an employer allows an employee to work at home, the employer should require that the employee has sufficient homeowner's insurance, car insurance, health insurance, and any other applicable insurance policies. This is important because from a common sense point of view, an injured worker who has the ability to choose between different insurance coverage is less likely to claim a non-work injury as being work-related then one whose sole remedy is the workers' compensation insurance.
William N. Anderson received his BA in 1990 from the University of North Carolina at Charlotte. He received his Juris Doctor from Mercer University in 1993. While in law school, he was a member of the law review (1991-1993), received the Dean's Public Service Award, and was the Co-Chair of the 1993 National Conference of Law Reviews.
He is a partner with the law firm of Hamilton, Westby, Antonowich & Anderson, where his primary area of practice is workers' compensation defense. Mr. Anderson often speaks to employers, insurers, and self-insurers regarding workers' compensation issues. He is the co-founder of GA WorkersComp, and may be reached at firstname.lastname@example.org or (404)-872-3500.[Back to Top]