| Generally, compensation will be denied for injuries incurred prior to an employee being actually hired. However, courts have tended to reject form over substance and allowed compensation when the employee was hired though he had not finished the full hiring process such as completing the employer's business paperwork like payroll and tax forms. Compensation turns on whether a contract of hire has been entered into between the employer and potential employee -- an express or implied contract will suffice.
Whether an implied contract of hire has been entered into is a factual question. To answer the question, courts will examine the actions of both the employer and potential employee. For example, it is likely that a contract of hire will be found when, at the conclusion of the interview, the employer's human resources representative tells the employee to report for work on a given day. If there is a considerable lag time between the direction to report for work and the time the employee is supposed to arrive per such directions, an injury incurred will likely only be compensable if the injury is causally related to the employment. This is true even if the injury occurs on the employer's premises. Other evidence favoring the employment relationship includes when the employer gives the employee travel pay to assist him in arriving at the designated work locale. Generally, workers' compensation protection would commence at the start of the employee's travels.
Other pre-employment situations where workers' compensation may be allowed include when the employee works during a probationary period. Often, employers will subject an employee to a probationary period of, for example, three months, in order to assure themselves that the employee is capable of performing the job. Thus, when the employee is injured as a result of his employment conditions, workers' compensation benefits will be recoverable despite the fact that he had not yet completed the requisite probationary period. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |