Findlaw reports a South Carolina Court of Appeals case in which the court determined that the worker (Fergurson) was not an employee and eligible for workers compensation benefits. The court reviewed whether the person who engaged with the worker exercised enough control for the worker to be an employee instead of an independent contractor and concluded that the worker was not an employee. The court said:
Ferguson argues the Appellate Panel erred in finding he failed to carry his burden of proving he was an employee of Unterkoefler. We disagree.
Section 42–1–130 of the South Carolina Code (2015) defines an “employee” as:
[E]very person engaged in an employment under any appointment, contract of hire, or apprenticeship, expressed or implied, oral or written, including aliens and also including minors, whether lawfully or unlawfully employed, but excludes a person whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer․
Section 42–1–360 of the South Carolina Code (2015) provides the Workers’ Compensation Law does not apply to:
(1) a casual employee, as defined in Section 42–1–130; or
(2) any person who has regularly employed in service less than four employees in the same business within the State or who had a total annual payroll during the previous calendar year of less than three thousand dollars regardless of the number of persons employed during that period.
Thus, Ferguson must prove he was an employee of Unterkoefler and Unterkoefler regularly employed four or more employees. “Under settled law, the determination of whether a claimant is an employee or independent contractor focuses on the issue of control, specifically whether the purported employer had the right to control the claimant in the performance of his work.” Wilkinson ex rel. Wilkinson v. Palmetto State Transp. Co., 382 S.C. 295, 299, 676 S.E.2d 700, 702 (2009). “In evaluating the right of control, the Court examines four factors which serve as a means of analyzing the work relationship as a whole: (1) direct evidence of the right or exercise of control; (2) furnishing of equipment; (3) method of payment; (4) right to fire.” Id.
At the hearing before the Commissioner, the Fund contended Ferguson was not an employee of Unterkoefler and, in the alternative, Unterkoefler subcontracted the jobs from eMove to Ferguson. The Commissioner found Ferguson failed to prove he was an employee of Unterkoefler.
Considering the first of the four factors of control, the right to control, Ferguson worked for Unterkoefler part time and helped him load and unload trucks rented by customers of Unterkoefler. In the few jobs Ferguson completed for Unterkoefler on his own, like the one when he was injured, Unterkoefler did not exercise control over the work he performed. Unterkoefler merely gave Ferguson the customer’s information. The customer dictated the date, time, and location of the job. When the job was completed, Unterkoefler gave Ferguson cash for the entire cost of the job. Unterkoefler testified he did not financially benefit from a job completed by Ferguson unless he performed the job with Ferguson.
Regarding the furnishing of equipment, Unterkoefler provided a labor service to his customers. He did not have his own moving truck or equipment, and he used the truck his customers rented and any equipment that came with their rental truck. He did not have a uniform for himself or anyone who helped him. He and his helpers also used their own transportation to travel to and from the customer’s residence.
Concerning the method of payment, Unterkoefler was paid by the job and split his earnings with the number of helpers he had during the job, paying them in cash. Finally, as to the right to fire, Unterkoefler could choose to use someone other than Ferguson for a job. Ferguson could also decline or refuse to perform a job. There was no set schedule, and Ferguson did not work on a consistent basis.
Therefore, after reviewing the evidence, we find the Appellate Panel correctly found Unterkoelfer was not Ferguson’s employer…
Read the full decision at FERGUSON v. NEW HAMPSHIRE INSURANCE COMPANY 2013 001896