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Can you fire an employee while they are out on a workers' comp claim?


Can you fire someone while they are out on a Workers’ Comp claim?  Yes….but be careful and cross all your t’s and dot all your i’s before you do!

You can terminate a workers’ comp claimant as long as they are not protected by any other laws.  So before moving forward with the termination you must determine the following:

                Is the claimant protected under the Family and Medical Leave Act?

                Is the claimant covered under the ADA laws?

                Is the claimant being terminated for any other discriminatory reason?

Now, once you’ve covered all those points you still need to assess the consequences of the termination.

Negative Consequences can include the possibility that a Workers’ comp Commissioner might be more sympathetic toward an unemployed claimant and/or the length a claimant is out of work may exceed the norm due to the fact that they don’t have a job to return to.

Conversely, the positive side is you may be able to terminate a poor-performer/problem employee.

construction risk advisorsRemember, the most important thing is documentation, documentation, documentation!  If you are terminating any employee, claimant or otherwise, make sure you have written records of poor performance evaluations and conversations, documents of attendance abuse, etc.  And we highly recommend you contact your lawyer prior to issuing that termination!

Is Your Construction Company Misclassifying Workers?


connecticut employee misclassificationMost business owners know that independent contractors are less expensive to employ than employees.  Yet many companies pay independent contractors to do the exact same job, for the same number of hours as their regular employees.  The advantages to using independent contractors is that they typically cost less, have lower wages, payroll isn't contemplated for workers' compensation, no social security taxes, and state/federal taxes are not withheld.  Going this route, gives the contractor utilizing independent contractors a major advantage at bidding work because their base costs and overhead are substantially lower than a contractor that is playing by the rules.  The other loser in this scenario, is everyone that pays taxes.  Law abiding taxpayers are shouldering the load of income taxes and unemployment compensation taxes that unsavory contractors are passing on to them by intentionally misclassifying workers to save money.  The other potential loser is a 1099 contractor that is injured on the job and doesn't receive workers' compensation because they weren't an employee.

As you may have heard, the State of Connecticut is trying to close a hefty budget deficit.  One of the myriad solutions that has been offered is for the Department of Labor to step up enforcement on construction sites.  If you're the general contractor on a job, and one of your subs is improperly classifying their workers as independent contractors, the job can be shut down on the spot and the DoL can fine the owner of the job several hundred dollars a day; retroactive to every day the site was operating with misclassified workers.

Unfortunately for general contractors and job owners, when you get a certificate of insurance you can only see what lines of coverage are in force at the time the certificate was issued, and what limits are contained therein.  There is no way to tell how your subs' workers are being paid, or whether they are legitimately covered by workers' comp.  If one of your subs bids a job at a significantly lower cost than everyone else, that's your red flag that something is amiss.  Or they're just really bad at estimating.

The other potential way for a General Contractor to know whether their sub is misclassifying, is if on their certificate of insurance, the company is listed as a sole-proprietor.  As a sole-proprietor, the sole employee is not legally mandated to carry workers' compensation. Until they have someone helping them on the job site.  Even for a day.  So now, it's your job or your foreman's job to make sure that this sole proprietor is performing 100% of the work in their contract by themselves, with no outside helpers.  If the Department of Labor shows up on your site, and finds a sole proprietor and his helper performing work is a perfect example of why a site could be shut down.  It could have looked more cost effective during the bidding process, but the fines and work stoppage will be significantly more costly to the GC and the owner than hiring a contractor on the up and up would have been.


To learn more, check out this exciting 108 page report from the Department of the Treasury and the IRS

More reading on Misclassification law enforcement that is Connecticut Specific

Upcoming Changes to Employment Law


Just when you thought you had mastered them all, a number of new employment laws are on the table. If voted through you’ll have even more challenges when it comes to tracking various types of leave.

So here are highlights of the possible coming attractions!

confused112408FMLA Enhancement Act

If passed, this bill could expand the current FMLA (Family Medical Leave Act) to include leave for attending children’s activities.

Another change could be to give victions of domestic violence FMLA protected leave

Family Leave Insurance Act

Employers could be required to provide 8 weeks of paid leave to employees to care for a sick family member or new child.

 Healthy Families Act

Would require certain employers, who employ 15 or more employees for each working day during 20 or more workweeks a year, to provide a minimum paid sick leave of: (1) seven days annually for those who work at least 30 hours per week; and (2) a prorated annual amount for those who work less than 30 but at least 20 hours a week, or less than 1,500 but at least 1,000 hours per year.

Whether one of these is passed or all of them are, you’ll need to be reviewing your current leave policies, updating employee manuals and re-educating your supervisors and managers.  It looks like the Federal government is going to continue to keep the Human Resource Professionals very, very busy!

Is your employee handbook up do date?  Need a second set of HR eyes to make sure your T's are crossed and your I's are dotted?  Construction Risk Advisors has a full time HR consultant on staff for any and all compliance issues a Connecticut Contractor could face. 

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