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EMPLOYEES NOT COVERED UNDER SC WORKERS COMPENSATION LAW

NOT EVERY EMPLOYEE IS PROTECTED UNDER SC WORKERS COMPENSATION LAW 

In most cases, the discussion about whether SC workers compensation laws cover an accident or an employee is fairly clear. People who are employed by a company and are injured on the job are covered employees, and workers compensation benefits, including medical treatment, lost time from work, and some degree of permanent disability apply. However, this is not always the situation. As small businesses contract and hire fewer people, SC workers compensation law may or man not apply. The answer depends on how many workers and what types of jobs they perform.

The statute of whether SC workers compensation laws apply is SECTION 42‑1‑360 “Exemption of casual employees and certain other employments from Title.” In relevant part, “[T]his title does not apply to: (1) a casual employee; (2) any person who has regularly employed in service less than four employees in the same business within the State; (3) a state and county fair association; (4) an agricultural employee; (5) a railroad, railroad employee, railway express company, or railway express company employee; (6) a person engaged in selling any agricultural product for a producer of them on commission; (7) a licensed real estate sales person engaged in the sale, leasing, or rental of real estate for a licensed real estate broker on a straight commission basis and who has signed a valid independent contractor agreement with the broker; (8) a federal employee in this State; (9) an individual who owns or holds under a bona fide lease‑purchase or installment‑purchase agreement a tractor trailer…(and who operates) under a valid independent contractor contract…” We have redacted certain portions of this law for ease of discussion and will attempt to simplify it even further now. The first exemption involves “casual employees.” This situation is where an employer just needs someone for a specific task and does not want to hire an outside vendor. The “employee” really is just someone who fills a short-term need for a particular project not usually performed as part of the employer’s business. For example, our law firm may periodically pay someone to detail the office or perform “touch up” painting each year. It may be the same person or someone different. If this individual were to be injured, it would fall to our general liability carrier as they are not a “covered employee” under SC workers compensation law.

The next exemption is the one most usually contested by both plaintiffs lawyers as well as defense lawyers. Why do people fight so hard to get covered under SC workers compensation law? Usually, it is because fault is not an issue in workers compensation cases. In many situations, the injured person’s only real hope of collecting anything is to file a workers compensation claim. Otherwise, they will get nothing as the accident was caused by their own actions or negligence. Here in Rock Hill SC, we have seen significant downsizing by local small businesses. If the number of “regularly scheduled” employees falls below four (4) or more, there is no legal requirement to carry workers compensation insurance, and the SC Workers Compensation Commission has no jurisdiction to hear a claim. Over the past few years as the economy struggled, we experienced a similar contraction and reduction of employees in Fort Mill SC and even Indian Land SC. Fortunately, we have seen significant new growth in businesses and construction in the Charlotte NC area which has benefitted us all here in South Carolina. Thankfully, new construction and new businesses are being started in Columbia SC as well. Those were difficult times, and we all hope the worst in behind us. As employers add new people, whether full time or part time, SC workers compensation law will be triggered, and coverage will need to be secured. The term “regularly scheduled” applies to both types of employees, not just the full time ones.

Exemption three deals with state and county fairs which are seasonal, claims are “fairly” rare. However, exemption four addressing “agricultural employees” is much more common given our State’s rich farmlands and economic base. It should be noted that, if applicable, SC workers compensation law covers injured workers whether they are legally employed or not. In short, their immigration status does not matter, and frankly, many farms and agricultural industries would simply not survive without migrant labor. More responsible employers will elect to be covered under workers compensation insurance. Otherwise, many serious injuries go uncompensated and are not included in annual statistics of work-related accidents in South Carolina. Exemption five is covered under federal workers compensation laws, and exemption six is really dealing with commission-only, independent contractor sales for agricultural sales.

Exemption seven addresses realtors which can include thousands of licensed, but perhaps not active, real estate agents. In the real estate broker business model, individual agents are truly “independent contractors” in terms of how they market their services and conduct their business. Where it gets somewhat confusing is that they have to register their license with a particular broker and then have all sales or leasing contracts be approved and monitored by a broker-in-charge. Exemption eight specifically deals with federal employees, who like railroad accidents, are covered under federal workers compensation laws. Exemption nine addresses tractor-trailer or semi-truck accidents. Workers compensation claims involving drivers of big trucks can be difficult in terms of whether the driver is an “independent contractor” or an “employee” of a company. In larger, national trucking companies, the analysis is straightforward, and most drivers are covered employees. However, in smaller trucking firms, many employers often “blur” the lines and try to characterize employees as independent contractors in an attempt to save money on expensive workers compensation insurance premiums.

WORKERS COMPENSATION IS THE ONLY LEGAL REMEDY AGAINST EMPLOYER

In cases where the injured employee is hurt in an accident caused by the negligence of their employer, it would be very desirable to go outside of workers compensation and file a regular negligence claim. After all, the biggest part of any regular lawsuit is “pain and suffering” which is not included as part of an injured worker’s damages under SC workers compensation law. Sometimes, however, you get lucky. I remember a case in Columbia where a school teacher was sexually assaulted when she was getting her classroom ready towards the end of the summer before school actually began again in the fall. Her physical injury was relatively minor, but the emotional part of her injuries was tremendous. We initially filed a workers compensation claim as this should have been her only option. In the employer’s Answer, they asserted that she was “outside the course and scope of her employment” as the school year had not yet started, and further, that the Workers Compensation Act did not apply. With that unintended result of an aggressive defense, we withdrew our workers compensation claim and filed a premises liability lawsuit on our client’s behalf. In other situations, it is the employer that is seeking the protection of the limited benefits of SC workers compensation law. In a single vehicle tractor trailer accident where a driver was seriously injured due to poor maintenance, his employer, who had been paying him as an “independent contractor” for years, suddenly wanted to claim “their driver” as an employee. Of course, you are estopped from selectively claiming one status over another one to fit your particular needs in a situation. But, it was entertaining to watch the change in emphasis once someone was seriously injured.

Before automatically filing for workers compensation benefits, your attorney should carefully review all circumstances to see what options are available or precluded and determine which strategy is best suited for your case. This is where experience really counts. Make sure your SC workers compensation lawyer has the background and credentials to do their best for you and your family.

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