Sellers v. Tech Service, Inc. (Lawyers Weekly No. 011-055-17, 13 pp.) (Stephanie McDonald, J.) Appealed from the Workers’ Compensation Commission. S.C. App.
Holding: Where it appears that a dispute about overtime was resolved by the employer (owned by the claimant’s cousin) starting to pay the claimant as an independent contractor, but where the employer retained the same rights of control over the claimant, the claimant remained an employee rather than an independent contractor.
We affirm the Workers’ Compensation Commission’s ruling that the claimant was an employee.
Facts
On Nov. 8, 2013, the claimant was injured when he fell from a 30-foot ladder while working for the employer at a construction site. The employer denied the claimant’s workers’ compensation claim, asserting that the claimant was an independent contractor rather than an employee.
In March 2013, the claimant had complained to his cousin, Tracy Davis, owner of the employer, about not receiving proper overtime pay and deductions from his paycheck.
According to the claimant, Davis offered to make him a “1099 employee” and help the claimant with his taxes when he filed. This would allow him to do work according to a flat rate pricing book, and if he finished the work in less time than the book contemplated, “it’s actually like you are making 20 bucks an hour instead of 14 bucks an hour.”
Employment Test
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 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.
Regardless of whether or not the employer exercised actual control over the details of the claimant’s work, there is evidence that it had the right to exercise such control.
First, the Commission found (1) the claimant was instructed by either Davis or his supervisor, Jacob Hamilton, on the work he was to perform, and his work was supervised; (2) the claimant reported to work as he was instructed; (3) the claimant did not bid for work on any projects he performed for the employer; (4) the employer did not inform the general contractor of the project on which the claimant was injured that he was working as a subcontractor or independent contractor; (5) the employer directed the claimant to wear its uniform, which he wore each work day; (6) the claimant carried the employer’s business cards and service contracts, which he executed with customers as an agent of the employer; and (7) the claimant had the authority to order, purchase, and pick up supplies at Gateway Supply using the employer’s account.
There is evidence that the claimant bought his own workers’ compensation policy (allegedly paid for by the employer and purchased “tax purposes only”), he submitted “Sellers Heating and Cooling” invoices to the employer, and he was paid pursuant to a Form 1099. However, there is no independent contractor agreement in this case.
The employer’s right to control the time, place, and amount of the claimant’s work weighs heavily in favor of finding an employment relationship.
Second, in deciding whether the employer furnished equipment to the claimant, the Commission found (1) the claimant was not financially capable of purchasing all of the tools pictured in the hearing exhibits; (2) most of the tools were purchased by the employer and provided to the claimant, including the ladder from which the claimant fell on the date of his accident; (3) the claimant was able to charge any supplies he needed on the employer’s account; (4) the claimant did not pay for any supplies out of pocket and did not have his own supply account; and (5) the evidence was unclear whether the claimant was provided a van by the employer.
We find the employer’s furnishing of equipment for the claimant to use while on the job favors a finding of employment.
Third, the Commission found the claimant’s income from the employer after March 2013 was largely consistent with his income from prior years, and the most significant change was that the employer planned to report the claimant’s earnings using a Form 1099.
There was no employment contract, and the testimonial evidence does not clearly indicate the amount and method by which the employer paid the claimant. This suggests the claimant and Davis had a dispute regarding how the claimant’s wages were being calculated. We find the “method of payment” evidence further weighs in favor of affirming the Commission’s finding of an employment relationship between the claimant and the employer.
Fourth, evidence that Davis and Hamilton supervised, inspected, and monitored the quality of the claimant’s work product supports the finding that the employer had the right to terminate its working relationship with the claimant without liability. The “right to fire” factor favors a finding of employment.
Accordingly, we affirm the Commission’s conclusion that the greater weight of the evidence supports the finding of an employment relationship between the claimant and the employer at the time of the accident.
The Commission considered additional facts: (1) in obtaining permits for the job on which the claimant was injured, the employer represented that no subcontractors or independent contractors would be involved, (2) the employer continued to list the claimant as an employee on its internal business records, and (3) the claimant is not licensed to do business individually and lacks the HVAC contractor licensing required to conduct his trade in South Carolina. That the Commission’s order refers to additional facts not conclusive as to employment statutes does not alter our conclusion.
Affirmed.
