by Kenneth A. David, Esq.

In today’s changing economy, it is not always clear if a claimant is actually an employee under Georgia workers’ comp law. Two important aspects of this issue are:

1) Only employees fall within the workers’ comp system – independent contractors and interns do not; and

2) The definition of “employee” is not the same under Georgia workers’ comp law as it is under other laws.

For instance, there has been litigation lately where Uber drivers (the taxi-like service) have sued to establish that they are employees and not independent contractors. Also, interns have argued for employee status or at least certain benefits, including wages. It is clear under Georgia law that in order for a claimant to be considered an employee she must be paid. “Pay” can be in the form of wages or it could be other benefits for free, such as housing. However, if there is no compensation, then the claimant is not an employee unless the employer voluntarily chose to cover the claimant. As far as whether a claimant is an employee versus an independent contractor, O.C.G.A. §34-9-2(e) establishes criteria for when someone is an independent contractor: 1) the claimant has a contract – written or implied – which establishes such a relationship; 2) the claimant has the right to exercise control over the time, manner and method of the work to be performed; and 3) the claimant is paid by the job or unit, not hourly or by salary.

Employers generally argue that a claimant should be an independent contractor and not an employee but keep in mind that if the claimant is not an employee she can sue the employer in tort, within the civil court system, where awards could be much higher, punitive damages are available, and there will be no exclusive remedy protections.