Who is an Employee?

At first glance, the question appears simple. However, the determination of whether an injured person qualifies as an employee for purposes of the Nebraska Workers’ Compensation Act depends on many variables and can be complicated. Generally, the stronger the relationship between the worker’s duties and the normal business of the employer, the closer it comes to being a sufficient employment relationship.

For example, “traditional employees,” which include every person in the service of those employers not mentioned as excluded employers (such as railroad companies, household domestic servants, and agricultural operations), and whose employment is in the usual course of the regular trade, business, profession or occupation of his employer, are generally regarded as employees for purposes of the Nebraska Workers’ Compensation Act. Neb. Rev. Stat. §48-115.

Independent contractors, on the other hand, are not entitled to coverage under the Act, but they can make a formal election to come under its provisions. Who is an independent contractor? The Nebraska Supreme Court has identified 10 factors to be considered in determining whether a person is an employee or an independent contractor. Larson v. Hometown Comm., 248 Neb. 942, 540 N.W.2d 339. These factors are: (1) amount of control, (2) whether a worker is engaged in a distinct occupation or business, (3) kind of occupation involved, (4) skill required in the particular occupation, (5) which party supplies the instrumentalities, tools, or place of work, (6) length of employment period, (7) method of payment, (8) whether the work is part of the regular business of the employer, (9) whether the parties believe they are creating an employer/employee relationship, and (10) whether the employer is or is not in business.

There are further considerations to be made when dealing with such situations as self-employed persons, executive officers, loaned employees, casual employees, and volunteers. For more information about what types of workers are covered by the Nebraska Workers’ Compensation Act, please contact Sara Hughes at shughes@baylorevnen.com or any of the firm’s workers’ compensation attorneys at (402) 475-1075.