According to Matthew L. Schrader
, an attorney at Reminger in Columbus, most homeowners don’t put much thought into having a household employee until it’s too late. “It’s not a problem until there’s a problem, and when there’s a problem, it’s not a small one,” he says.
Matter and Means
Household employees differ from independent contractors because the homeowner who hires the worker determines the matter and means of the employment under Ohio law. When a household employee is working on the homeowner’s property, the homeowner is also determining how that employee will work. A nanny, for example, is assigned tasks, given a schedule, compensation and the means to complete the tasks.
When an independent contractor is hired, they determine the matter and means of the work. A painter, for example, will bring their own brushes, paints and ladders, and complete the work without equipment or instruction from the homeowner. When the job is completed, the homeowner will receive a bill.
In the event that the nanny, or any other type of household employee, is injured in the course and scope of their employment, the employee relationship to the property owner can unravel into serious legal ramifications.
“You could be running afoul of the law for not having secured workers’ compensation coverage for them,” says Belinda S. Barnes
, an attorney at Gallagher, Gams, Pryor, Tallan & Littrel in Columbus. “What may be even worse is if they are seriously injured and there’s a potential liability claim against you. You may have an uninsured interest because there may be an exclusion for employees in your homeowners policy.”
Schrader had a client in these shoes. They had a household employee and didn’t think to get workers’ compensation insurance coverage. “The client ended up getting busted for workers’ compensation, for not paying workers’ compensation premiums, and then became personally liable for this persons’ workers compensation claim and it really turned into a horrible nightmare,” he says.
Cover Yourself and Your Worker(s)
Once workers’ compensation coverage is secured for any household employees, it’s important to take a close look at your homeowners insurance. Call your insurance agent and make sure that if this person is not considered an employee, you have adequate homeowners insurance coverage for any type of accident or injury that might occur.
There are also protections to consider when hiring an independent contractor. “Whenever I have somebody doing something at my house, I want to see their information showing that they are bonded, licensed, and insured and they carry workers’ compensation coverage,” Barnes says. “Let’s say they fall off your roof doing some work and they don’t have workers’ compensation coverage, they could potentially make a claim against you.” While both attorneys agree
it’s not likely an independent contractor would recover on a claim or lawsuit filed against a homeowner, defending against a claim is pricey. It’s always better to play it safe and ensure the contractor has coverage.
To protect against liability under a personal injury claim, be sure to inform an independent contractor about any hazards on your property, such as a rotted porch or pothole.
If a worker is injured on your property and files for workers’ compensation, they do not have to prove negligence—only that they were injured in the course and scope of their employment.
“Let’s say you hired someone to come over to your house to paint and he shows up with a T-shirt and shorts and shoes and has nothing with him. You give him the paint brushes, the rollers, the paint trays, the brushes, the ladders, the tape, and all the supplies. That type of scenario might turn what would ordinarily be an independent contractor into an employee,” Schrader says.
It’s important to contact a law firm and seek legal advice from a reputable workers’ compensation attorney if any legal issues arise.