Workers' Compensation Rights of a Misclassified 1099 Worker

Q: Does signing a 1099 make someone an independent contractor in Texas?

No. The paperwork is evidence, not the answer. Tex. Lab. Code § 401.012(a) defines an employee, for the workers' compensation part of the code, as each person in the service of another under a contract of hire, whether express or implied, or oral or written. Texas courts sort employees from independent contractors by looking at who has the right to control the details of the work, not simply at what the parties called the arrangement.

Q: What happens if a Texas company has no workers' compensation coverage?

It loses its traditional defenses. Under Tex. Lab. Code § 406.033(a), in an action against an employer who is not covered, it is not a defense that the employee was contributorily negligent, that the employee assumed the risk of injury or death, or that the injury or death was caused by the negligence of a fellow employee. The employee must still prove the employer's negligence under § 406.033(d).

Q: Can a worker sign away the right to sue a non-subscribing employer before getting hurt?

No. Tex. Lab. Code § 406.033(e) provides that a cause of action described in § 406.033(a) may not be waived by an employee before the employee's injury or death, and that any such agreement is void and unenforceable. A waiver after an injury is possible only under the strict conditions in § 406.033(f) and (g), including a waiting period, a medical evaluation, and conspicuous written terms.

Question

I've been working for a company for 9 months now and signed a 1099 when I was hired, but I hurt my ankle really bad at work because of extreme overcrowding of boxes from multiple containers being delivered every week. I feel like the owner just brushed it off, even though he's treated other hurt employees way better. A doctor kept me off work for a week, and I was told if the swelling didn't go away then I need to see a specialist because I may have torn something, but the owner would only pay me half days, so I went back to work after a week wearing an old walking boot I had. On my second day back, one of the other employees poured water on the floor even though I'd asked the owner to ask him to please stop many times aand ied m

A. Jason Velez · Accepted Answer

Signing a 1099 does not settle whether you are an employee. Texas looks at the reality of the working relationship, not the label on the paperwork — and on what you describe, that question is worth having a lawyer answer. Tex. Lab. Code § 401.012(a) defines the term for the workers' compensation part of the code: "In this subtitle, 'employee' means each person in the service of another under a contract of hire, whether express or implied, or oral or written." Nothing in that sentence turns on a tax form. Subsection (b) extends the term to particular workers, and subsection (c) excludes a person whose employment is not in the usual course and scope of the employer's business. The test courts apply to sort employees from independent contractors turns on who has the right to control the details of the work — how, when and where it is done, not just the result. That control test is judge-made rather than statutory, but it is the question that decides your case, and the facts you describe about how your work was directed are exactly what it looks at. Where that answer lands determines your route. If you are an employee and the company carries workers' compensation, benefits are available without proving anyone was at fault, and Tex. Lab. Code § 408.001(a) makes them the exclusive remedy against the employer for a work-related injury. Two deadlines apply: Tex. Lab. Code § 409.001(a) requires notice to the employer not later than the 30th day after the injury occurs, and Tex. Lab. Code § 409.003 requires a claim to be filed with the Division of Workers' Compensation not later than one year after the injury. Sections 409.002 and 409.004 save a late notice or claim where the employer or carrier had actual knowledge, where the division finds good cause, or where the claim is not contested. You told the owner about the injury, and he paid you partial wages — those facts speak to actual knowledge. If you are an employee and the company carries no coverage, Texas strips it of its usual defenses. Under Tex. Lab. Code § 406.033(a), it is not a defense that you were contributorily negligent, that you assumed the risk of injury, or that a fellow employee's negligence caused it — which matters here, since a co-worker poured the water. Under § 406.033(d) you would still have to prove the company's negligence, and repeatedly asking the owner to stop the water is the sort of notice that argument is built on. Under § 406.033(e), anything you signed before the injury purporting to waive that claim is void and unenforceable. What you can do 1. See the specialist your doctor recommended, and tell them the ankle was reinjured after you went back to work. A gap in treatment becomes an argument against you later. 2. Give the company written notice of both incidents — the original ankle injury and the second one — with dates, and keep a copy. 3. Ask the company in writing whether it carries workers' compensation insurance, and for the carrier's name. 4. Save everything that shows how your work was actually controlled: schedules, texts and messages directing your hours and tasks, training materials, the 1099 and any hiring paperwork, and your pay records. 5. Write down the dates you asked the owner about the water on the floor and about the overcrowded boxes, and the names of anyone who heard you. 6. Photograph the container crowding and the floor conditions if they still look the way they did. 7. Ask a Texas work injury lawyer whether you are an employee under the control test and whether the company carries coverage. Those two answers decide everything else. Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page. ⏱ Time limits apply. Tex. Lab. Code § 409.001(a) sets 30 days to notify the employer and § 409.003 sets one year to file with the division; Tex. Civ. Prac. & Rem. Code § 16.003(a) generally requires a personal injury suit to be brought not later than two years after the day the cause of action accrues, which is the clock for a negligence claim. You have two separate incident dates here, which can mean two separate clocks. Have a Texas attorney sort them out rather than calculating them yourself.

Workers' Compensation Rights of a Misclassified 1099 Worker

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