Plaintiff’s attempts to circumvent the Defense Base Act in negligence cases continue March 1, 2009Posted by Aaron Walter in Uncategorized.
Tags: Blackwater, Good Friday Massacre, independent contractor
Reports of new attempts to pierce the protections afforded to employers under the Defense Base Act have been popping up throughout the news world.
The daughter of a Michigan man apparently killed by friendly fire is embarking on a wrongful death suit against KBR, who most disgustingly appears to have misled the family as to the nature of the employee’s death.
Also, see my previous posting regarding a this pending class action lawsuit against KBR.
Now, families of Blackwater security contractors recently lost their bid before a an Administrative Law Judge to sue Blackwater for wrongful death based on the contractors alleged status as independent contractors. I have neither read the opinion in this case, nor the briefs from either party, but I can imagine that Blackwater’s victory here was based on the traditional definitions of independent contractor agreements.
The Defense Base Act is a workers’ compensation system applying to employers and employees. If you are not an employee, you are not protected by the workers’ compensation system. If you suffer an “accident” then you can expect no medical care or cash benefits from your employer. However, if you are not an employee, but rather an independent contractor, and the contractor is injured or killed because of the employer’s negligence, then you are free to sue them for personal injuries/wrongful death. A wrongful death case could be worth millions of dollars, whereas a workers’ compensation claim is limited by the rules of the workers’ compensation system. See our website for a full description of benefits and limitations of this system.
How can you tell if someone is an independent contractor or an employee? Well, there is no single test, but courts generally look at several factors including how you are paid, whether taxes are taken out of wages (although just because your wages are reported on 1099 tax form instead of a W-2, your employer has not automatically made you an independent contractor), the type of work done, who supplies the tools for the job, who sets the hours, and how much control over the work is afforded to the contractor versus the employer. You can bet that many of these factors were weighed by the court in the above case.
The real Catch-22 here is that while the family, who alleges some form of serious negligence by Blackwater, lost their case and is left only with benefits under the Defense Base Act, if Blackwater contractors were found to be independent contractors, that would mean that the 100s of injured Blackwater employees who suffered injuries not involving negligence by Blackwater would be left in the cold. They would not be eligible for medical treatment and would simply have to fend for themselves. In many instances employers try their hardest just to have employees classified as independent contractors so they can deny workers’ compensation rights. You can’t have it both ways.
The notable exception to the protections afforded employers under the Defense Base Act is when a harm done by the employer to the employee is deemed to be intentional. Such may be the case with the previously blogged about Good Friday Massacre.
It is sad to see these families denied by the courts, but it is getting to be fairly predictable. Will someone eventually pierce the shield of workers’ compensation in an Iraq/Afghanistan war case? Yes, I believe they will. When will it come? Stay tuned.