No. If it was his Employer, he cannot do that. If your husband was a Contractor, and did not carry Insurance that he should have, the severance might be OK. Employee v. Independent Contractor is more complicated than just a W-2 vs. 1099 form. Your husband should probably find a NC Workers' Compensation Attorney to review his specific facts.
We give free general concepts to be helpful, but you should give ALL your facts to a licensed Attorney in your state before you RELY upon any legal advice.
He needs a workers' compensation lawyer. He was working for a "non-insured" employer, and his injuries would be covered under the workers' comp laws. The homeowner is not responsible unless the homeowner's negligence caused him to get hurt. If he simply fell off the roof, then he has a work comp claim. I have handled non-insured cases in the past and would be happy to talk to your husband and tell him how to get started with a claim. Non-insured claims have a lot of problems but the NC INdustrial Commission is cracking down on non-insurerd employers and putting some of them in jail for non-payment. Your husband can contact me through AVVO.
Yes, your husband needs to see an attorney, and I would recommend doing so as soon as possible. Even though there is no workers' compensation insurance, that does not mean that your husband can't file a workers' comp claim. There are ways to compel payment from the employer. Our firm has also always taken the position that if the employer didn't carry comp insurance, and it was required to do so (i.e. it had more than 3 regular employees), then our client is permitted to file suit in a civil court, opening up the possibility of additional damages such as pain and suffering.
T. Shawn Howard, attorney
Maginnis Law, PLLC
19 West Hargett Street, Suite 906
Raleigh, NC 27601
Licensed in North Carolina
The information provided should not be considered legal advice and does not create an attorney client relationship. I am not licensed to practice in any State other than North Carolina. The results of your case will depend on the presentation of evidence, the law and other factors that may change depending on an in depth analysis of the facts of the case. Please see an attorney before making legal decisions.
He should promptly see a local lawyer.
This post does not imply or constitute an attorney-client relationship. Time sensitive information should never be sent to the Law Firm via e mail or website. We offer no opinion on any applicable statute of limitation. Consult an attorney immediately.
Uninsured claims are tricky business. The employer remains responsible for payment of workers compensation benefits and there is an additional claim that could be filed by the NC Attorney Generals Office seeking penalties for failure to keep workers comp insurance. This is a common occurrence where an employer may try to say that workers are "independent contractors" and issue a 1099 where, under the law, they are really employees and the business should have carried workers comp insurance. In regard to whether your husband is an "employee" versus an "independent contractor" boils down to the right to control. The Industrial Commission looks at several factors including method of payment (hourly or by the job), who controls quality/method of work, and whether he is on the clock or can work his own hours, etc. This case is very likely to be litigated and your husband will need an attorney to protect his rights. I have included a link to Board Certified Specialist in Workers' Compensation Law. I am on that list and am happy to speak with you and answer any additional questions you may have about the process and your husband's case in particular.
Independent contractor Employment law for businesses Business insurance Personal injury Personal injury settlement Types of personal injuries Work-related personal injuries Residential property Business Employment Employment law and finances Workers' compensation Employee wages and severance pay Wrongful termination of employment Employment as an independent contractor Civil rights