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Sellers v. Tech Serv., Inc. - 421 S.C. 30, 803 S.E.2d 731 (Ct. App. 2017)

Rule:

Under South Carolina law, the primary consideration in determining whether an employer/employee relationship exists 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 four employment test factors regarding the right of control include: (1) direct evidence of the right or exercise of control; (2) furnishing of equipment; (3) the method of payment; and (4) the right to fire.

Facts:

On November 8, 2013, Plaintiff Stacy Sellers sustained injuries while performing heating, ventilation, and air conditioning (HVAC) construction at a single-family home in the Market Commons subdivision in Myrtle Beach (City). The next day, Sellers notified Riverport Insurance Company (Riverport) of his accident. On November 20, Riverport's third-party claims administrator denied the claim because Sellers had "knowingly and voluntarily" excluded himself from defendant employer's, Tech Service, Inc.,workers' compensation insurance policy.  The South Carolina Workers' Compensation Commission found that (1)  Sellers was a Tech Service employee, rather than an independent contractor, at the time of his injury and (2) based its determination on immaterial information. 

Issue:

Was Sellers a Tech Service employee at the time of his injury given the fact that Tech Service has the right and authority to control and direct the work of Sellers?

Answer:

Yes

Conclusion:

The South Carolina Court of Appeals held that the Labor and Industrial Relations Commission properly applied the four factors of the employment relationship inquiry, and the Commission's order determining Sellers was a Tech Service employee at the time of his injury, as defined in S.C. Code Ann. § 42-1-130, and not an independent contractor, was proper. Regardless of whether or not Tech Service exercised actual control over the details of Sellers’ work, Tech Service had the right to exercise such control, given in part because the claimant reported to work in the manner in which he was instructed, Tech Service directed him to wear a company uniform, he executed agreements with customers as an agent of Tech Service, he drove a company van, and the company furnished equipment for Sellers to use while on the job.

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