If you are injured at work, you may be eligible for workers’ compensation. Employers are required by the South Carolina Workers’ Compensation Law (SC Code Section 42-1-10 et seq to provide coverage for their employees. Workers’ compensation will pay many of the costs incurred when employees are injured on the job, including medical bills, lost wages, and damages or benefits for permanent disabilities. Workers’ compensation protects employees from some of the losses suffered from their workplace injuries. So whom is a “employee”? While the term “employee” may seem straightforward, and in many workplaces will be relatively clear, it is not as simple as it at first seems. Who qualifies as “employee” for workers’ compensation purposes in a workplace with sub-contractors? Or when a temporary agency provides the worker? What about volunteers? This article examines who specifically counts as an employee for workers’ compensation purposes in South Carolina.
Regular Full-Time and Part-Time Employees
As you can probably guess, generally regular full-time employees are covered by South Carolina’s Workers’ Compensation Act. Part-time employees are also covered. It does not matter whether the employment is legal. For example, undocumented workers and workers who are under the legal age of employment are still eligible for workers’ compensation protection. The South Carolina statute that defines workers’ compensation terms defines “employee” as:
“The term “employee” means every 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.” SC Code Section 42-1-130.
While in many ways the definition above seems clear, there are several categories of workers who are not covered by South Carolina’s Workers’ Compensation Act. These workers include:
- Railroad Workers – Railroad workers are not covered by South Carolina’s Workers’ Compensation Act. However, the Federal Employers’ Liability Act (FELA) covers railroad workers who are injured on the job.
- Federal Employees in South Carolina – Like railroad workers, federal employees do have another way to get support similar to workers’ compensation and that is through the Federal Employees Compensation Act (FECA).
- Less Than Four Employees – A business that regularly employs less than four employees does not have to cover its workers with workers’ compensation.
- Agricultural Employees – This is a very large exception in South Carolina. Agricultural employers can choose to pay for workers’ compensation coverage for their employees, but they are not required to.
- “Casual” Employees– This exception is extremely fact specific. If you have questions about whether you are a “casual” employee you, you should talk to a knowledgeable workers’ compensation attorney.
The South Carolina Workers’ Compensation Act does not cover unpaid volunteers. Volunteers are considered gratuitous workers and not “employees.” Organizations that regularly use volunteers are able to get coverage that would offer similar protections to workers’ compensation.
Independent contractors are not covered under South Carolina’s Workers’ Compensation Act. The problem is that the difference between independent contractors and employees is a fine line. Case law has defined the difference between the two as whether “the alleged employer has the right and authority to control and direct the particular work or undertaking, as to the manner or means of its accomplishment.”
The legal test laid down by South Carolina Appellate Courts as to whether someone is an employee, rather than an independent contractor or other uncovered position, has to do with the amount of control the employer has over the employee. There are four factors that the court looks at to determine whether the employer has enough control over the worker to be considered an “employee”:
- Direct evidence of the right to, or evidence of, control. Evidence of control can look many different ways depending on the nature of the business. For example, if someone works as a driver, evidence of control may look at whether the employer tells the employee what time he or she has to leave, what route to take, where and when to get gas, etc.
- The method of payment. The court will look at how a worker was paid to determine whether or not he or she is an employee. Being on a regular payroll may be evidence of an employee, while paying after being invoiced by the worker would be evidence of an independent contractor.
- The furnishing of equipment. Whether the worker or the employer provides the equipment is evidence of the degree of control the employer has over the worker. For example, for the driver above, if he or she uses an employer’s vehicle then it is evidence of an employer-employee relationship. If not, it could be evidence that the worker is not an employee and therefore should not be covered by workers’ compensation.
- The right to fire. Control over an employee can be evidenced by whether he or she can be fired.
If you believe your employer might try to escape workers’ compensation liability by claiming that you are not an employee, you most likely need an experienced workers’ compensation lawyer to represent you in your claim.
Subcontractors will most often be independent contractors and therefore not covered. However, people who work for subcontractors are “statutory employees” and are therefore covered. If the subcontractors themselves do not cover their employees, then the employees will be covered by the business that hired the subcontractors. Therefore, a business hiring subcontractors will want to inquire as to whether the subcontractor has workers’ compensation coverage for his or her employees.
Remember that just because some employees are not covered by workers’ compensation does not mean that the employees cannot still sue their employer if negligence by the employer caused the on the job injury.
Greenville, South Carolina Workers’ Compensation Attorneys
If you are injured on the job, you should contact a skilled workers’ compensation attorney as soon as possible. If you have questions about whether or not you are covered as an employee, a knowledgeable workers’ compensation attorney can help you to identify where you may be able to get benefits from. Our experienced workers’ compensation attorneys at Double Aught Injury Lawyers in Greenville, South Carolina, can help you to make the case that you should be covered as an employee and help you get the workers’ compensation benefits that you deserve.