Under the Act “[t]he term “employee” means every person engaged in employment under any appointment, contract or hire, or apprenticeship, expressed or implied, oral or written, including the aliens and also including minors, whether lawfully or unlawfully employed, but excludes a person who’s employment is both casual and not in the course of the trade, business, profession, or occupation of his employer…” §42-1-130 goes on to state that employee also includes all members of the South Carolina State National Guard while performing duties in connection with their membership, all volunteers state Constables appointed, all officers and employers of the state, except those elected by the people, or by the general assembly, or appointed by the governor. The law goes on to state that employees include all officers and employees of municipal corporations and political subdivisions, except those elected by the people or elected by the counsel or other governing body of any municipal corporation or political subdivision. Importantly, “sole proprietors” or a “partner” of a business may elect to be included under the Act. However, he or she is not covered unless he or she affirmatively opts in to the Act.
So the big battle ground here is that many employers try to claim that their workers are “independent contractors”. To be clear, please do not think that your case is barred or that you do not have a workers compensation case just because the employer or even you think that you are an independent contractor. What the parties think about the relationship has no bearing on determining whether or not you will be considered as an employee under the Act. Key factors that determine whether or not you’ll be considered to be an employee under the Act are (1) the method of payment you receive, (2) the employers right to hire and fire you, (3) who provided the materials and tools to you to work on your job, and (4) who has the right to control your actions while on the job. To try to simplify a very complex topic, if you are paid by the hour than you are more likely to be an employee. Conversely, if you are paid by the job you are most likely to be considered an independent contractor. If the employer provides tools and materials for you to do the job then you are more than likely an employee. If you provide all the tools and materials for the job it’s one factor that would indicate you may be an independent contractor. Please note here that almost any construction job and many other types of jobs it is common for you to show up with your tool belt and maybe show up with some materials to help on the job site. However, if the employer is providing the materials for the job (for example scaffolding, drywall materials, lumber, paint, work truck, and really any and all types of materials that would be used on the job) then you still have a strong argument that you are an employee and not an independent contractor. Important to this analysis is who has the right to control you and to hire and fire you when on the job site. As a practical matter no one has complete control over any employee when they are on a job site, however, this test is used to determine if the employer is the one that is setting the hours that you attend work, the hours that you take breaks or lunch breaks, the employer tells you when where and how to do the job, where to go and so forth, then he or she has likely exercised the amount of control that would make a strong argument that you are an employee under the Act. We all exercise some level of control on a job site in terms of when to take a break or when to go to the bathroom or when to do a specific task on the job, so do not let the fact that you have some level of autonomy and freedom to make decisions on the job make you think that you are not an employee and are an independent contractor. It’s very important to talk to an experienced South Carolina workers compensation attorney to help you determine whether or not you are an employee or independent contractor under the Act.
Often times employers will try to put up what I call a “scarecrow” to make you believe that you are an independent contractor and not an employee. Just like the scarecrow that farmers put up in the field to make it look like someone is attending to the crops and to keep the birds away, employers often will issue you a 1099 in an attempt to make you believe that you are an independent contractor and not an employee. To be clear it does not matter whether your employer issues you a 1099 or a W2, it does not matter whether you think you are an employee or independent contractor or the employer thinks you’re an employee or independent contractor. Workers compensation law is going to protect you and apply the four part test listed above to determine whether or not you are an employee under the Act. Again I strongly suggest that you seek an experienced workers compensation attorney to help you develop the evidence to prove the factors necessary to bring a successful and compensable workers compensation claim in South Carolina.
While there have been many cases that have laid out the test for determining the employer-employee relationship in South Carolina, the most recent case as in the time of writing this article is the South Carolina Supreme Court case of Shatto v. McLeod Regional Medical Center which was decided by the Supreme Court in 2013. In Shatto, the Court pointed out that the critical inquiry in determining the employer-employee relationship is whether there exists the right and authority to control and direct the particular work or undertaking. In this case there was a nurse anesthetist who worked at a hospital pursuant to her contract with a staffing agency. In finding that the employer-employee relationship existed the Court pointed out several key factors including that while the nurse anesthetist at no point during employment received money or other benefits directly from the hospital, but rather from the employment agency that originally hired her, nonetheless, the hospital was found to have exercised enough direct and actual control over her work and importantly also provided the equipment that she used while performing her job function and had the right to fire the injured worker in the event that the work that she was performing for the hospital did not meet their standards. Having considered all of the above factors the Court found that the nurse was in fact an employee of the hospital and therefore had the right to seek workers compensation benefits under South Carolina law.
There are some oddball jobs that sometimes will not be found to have an employer-employee relationship and are not compensable under the Act. An in depth analysis on these issues goes beyond the scope of this article. However, it is important to note that when driving trucks or tractor trailers that there is law that sometimes will find that you are in the Act and sometimes find that you are out of the Act. This is a complex area of the law and I would highly recommend that you seek advice from experienced legal counsel to help determine what your strengths and weaknesses are to your argument that you have a case under South Carolina law. And again while every case will be determined on a facts and circumstances analysis and stand on its own facts, it is important that in the past our courts have found that taxi cab drivers are employees and illegal aliens also can be found to be employees under the South Carolina Workers Compensation Act. Importantly, even though there are laws through the Immigration Reform and Control Act which prohibits the hiring of unauthorized aliens, this does not bar illegal aliens who are injured on the job in the course and scope of their employment from filing workers compensation claims in the State of South Carolina.
If you have questions as to whether or not you are an employee or an independent contractor for the purposes of workers compensation in South Carolina, call us now to learn your rights. The initial consultation is free and we’re available to answer your questions 24/7.