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Employers will often attempt to classify an employee as an independent contractor to avoid paying worker’s compensation claims if the employee is injured on the job.

In Sellers v. Tech Service, the South Carolina Court of Appeals held that an employee, who fell from a ladder on the job, was not an independent contractor and that Tech Service was responsible for providing worker’s compensation insurance to Sellers.

The Employment Test: Employee or Independent Contractor?

If an employer/employee relationship exists, the employer must provide worker’s compensation insurance. The primary question that the court will ask is “whether the alleged employer has the right to control the employee in the performance of the work and the manner in which it is done… The test is not the actual control exercised, but whether there exists the right and authority to control and direct the particular work or undertaking.”

The Courts have found that there are four “employment test factors” to consider when determining whether an employer has the right to control the employee:

Direct evidence of the right or exercise of control. In this case, direct evidence included:

  • Sellers was told what jobs to do and his work was supervised.
  • Sellers reported to work when he was told.
  • Sellers did not bid for any of the work that he did for Tech Service.
  • Tech Service did not inform the general contractor that Sellers was a subcontractor or independent contractor.
  • Sellers wore a Tech Services uniform every day.
  • Sellers used Tech Services business cards and service contracts. Sellers ordered, paid for, and picked up supplies using Tech Service’s account.

Furnishing of equipment. The Court determined that Tech Services had provided Seller’s equipment, finding that:

  • Tech Services purchased most of Seller’s tools, including the ladder that he fell from.
  • Sellers charged his supplies to a Tech Services account.
  • Sellers did not have his own supply account and did not pay for supplies out of pocket.
  • Tech Services may or may not have provided Seller’s van to him – there was contradictory testimony about who paid for the van.

The method of payment. The Court found that:

  • Tech Services determined the method and amount that Sellers was paid.
  • Although Tech Services attempted to classify Sellers as an independent contractor and began issuing a Form 1099, Sellers was paid roughly the same income on a weekly basis before and after Tech Services began issuing the Form 1099.
  • After they attempted to classify Sellers as an independent contractor, Sellers began submitting “Sellers Heating and Cooling” invoices to Tech Services. The amounts on the invoices were dictated by Tech Services based on the number of hours they believed it should take Sellers to complete the jobs.
  • There was no employment contract, and there was contradictory testimony about how Seller’s wages were calculated.
  • The majority of Seller’s income was received from Tech Services before and after they attempted to classify him as an independent contractor.

The right to fire. “The power to fire, it is often said, is the power to control.” Although it was not clear whether Tech Services had the right to terminate Sellers without incurring liability, the Court found that the following facts made it likely that Tech Services had the right to fire Sellers:

  • Tech Services supervised, inspected, and monitored the quality of Sellers’s work product.
  • Sellers’ testimony that Tech Services had the right to terminate his employment.
  • Sellers would have to seek employment from another HVAC company if Tech Services terminated his employment.

The Court also noted that “South Carolina’s policy is to resolve jurisdictional doubts in favor of the inclusion of employers and employees under the Workers’ Compensation Act.” This means that, if it is a close call, the Courts will rule in favor of classifying a worker as an employee and bringing them under the umbrella of worker’s compensation coverage.

Injured on the Job in South Carolina?

If you have been injured on the job, our worker’s compensation attorney will meet with you, gather the evidence that you will need to make your claim, and help you to get the compensation that you are entitled to.

If you or someone you know has been injured on the job in Myrtle Beach, Conway, or Rock Hill, SC, call now and schedule a free consultation with a Myrtle Beach worker’s compensation lawyer on the Axelrod team. Call us at 843-353-3449 or fill out our contact form today.

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