Workers’ compensation benefits are a lifeline for workers who suffer an on-the-job injury. However, not every worker is covered. Independent contractors are not employees, so they are not typically covered by a company’s workers’ compensation policy. Call McCravy, Newlon, Sturkie & Clardy to speak with a Spartanburg workers’ compensation lawyer. We know how to get independent contractors benefits when they have been misclassified. Reach out for a private consultation.
Who is Covered by Workers’ Compensation?
South Carolina law requires that employers buy a workers’ compensation insurance policy to cover full- and part-time employees. This insurance policy will pay benefits to any employee injured on the job:
- Medical treatment
- Wage loss benefits
- Vocational rehabilitation
- Death benefit
Unfortunately, independent contractors are not “employees” under the law, so they are not covered even if they are hurt at a jobsite or while working. With the rise of “gig” jobs, more and more people are not covered by workers’ compensation in South Carolina.
Can Independent Contractors Get Workers’ Compensation?
Yes! Some workers are misclassified as independent contractors when they really are employees. Employers have an incentive to misclassify. They can reduce the number of employees covered by their workers’ compensation insurance policy. That means lower premiums and higher profits. Also, the state penalties for misclassification are meager, and the state rarely performs audits. There is little risk to an employer to misclassify a work, but potentially a big reward.
In South Carolina, there is a judge-made test for determining whether you are really an employee or an independent contractor. If you qualify as an employee under the test, you can get workers comp for independent contractors.
The key to the workers comp independent contractor test is whether the employer has a right to control how the independent contractor performs work. This is the “right to control” test.
Key factors include:
- Direct evidence of a right to control how work is performed;
- Furnishing the worker with equipment or tools;
- The method of payment;
- Having the right to fire the worker.
Courts construe workers’ compensation laws liberally to favor coverage, which should benefit anyone claiming they are an employee.
Are You an Independent Contractor or an Employee?
Many employers believe the label they use should end the analysis. They call a worker an independent contractor and they think that’s the end of the matter legally. But that’s not how it works. You might be an employee if:
- The employer directs when and where you perform work. Generally, independent contractors can decide when to work, provided they finish the job before the customer’s deadline.
- The employer demands you hire certain people. Independent contractors are typically free to subcontract with other businesses to get a job done. If the employer demands you work with certain people, then they are acting like an employer.
- The employer provides tools or equipment to perform a job. For example, you might drive a taxi for a company that provides you with a car and meter. They are providing the main tool for the job, so you look like their employee, not an independent contractor.
- Your employer provides a detailed list of infractions that will get you fired and closely supervises you. Generally, a true independent contractor is only judged on the quality of the finished product or service. When an employer wants to supervise, they are exercising a right to control.
- You are provided with a W-2 form. This is evidence that you are really an employee and not an independent contractor.
The opposite is true, too. If you provide all the tools or equipment and have the right to work whenever you want, then you look like an independent contractor under the workers comp independent contractor test.
Instead of guessing whether you were misclassified, call McCravy, Newlon, Sturkie & Clardy. A Spartanburg workers’ compensation lawyer can review the facts and determine whether you qualify as an employee. In our experience, more workers than ever before are being misclassified, and you don’t want to lose out on benefits while injured.
File a Workers’ Compensation Claim
The only way a misclassified worker will receive benefits is to file a claim. You should ask the company you work for if they have a form. You want to submit a timely claim. Also, promptly notify them of any accident.
If the employer refuses to help—after all, they think you’re an independent contractor—you should reach out to our law firm. We know how to submit a claim for benefits.
The South Carolina Workers’ Compensation Commission is charged with administering and enforcing workers’ compensation laws. They also investigate whether a worker was misclassified as an independent contractor. If you qualify, you should receive benefits for your on-the-job injury, including no-cost medical care.
Remember, workers’ compensation benefits are no-fault. Your negligence could have caused the accident, but you should still receive benefits so long as you are too injured to return to work full-time.
Support Your Claim with Evidence
The Workers’ Compensation Commission will want evidence showing you are an employee. You can help your case by gathering as much evidence as possible:
- Paystubs or other proof of payment;
- Any communication from the employer, including job contracts or emails;
- Your memories of whether an employer wanted to control when you did work or who you hired;
- The names of the people at the company who you communicated with regularly;
- Dates of employment;
- Evidence of the accident that caused your injury, including witnesses;
- Medical records for your injuries.
This information will help flesh out a claim. Our firm might end up interviewing people or requesting documents from the company to find additional evidence in support.
Challenge Your Misclassification
Too many workers are misclassified around the nation, and South Carolina is no different. If you are an employee, you deserve workers’ comp benefits, including medical care and wage loss benefits.
Get the legal help you need to make a solid claim. Call McCravy, Newlon, Sturkie & Clardy to speak with an experienced workers’ comp lawyer in Spartanburg about your on-the-job injury and your prognosis.