South Carolina: Control Not Key to Determining Statutory Employee Status

The Supreme Court of South Carolina held that an employee of an uninsured cargo delivery business (West Expedited) was the statutory employee of another delivery business (Seko Charlotte), with whom West Expedited had contracted to deliver a load of parts to Wisconsin in spite of Seko Charlotte’s contention that it exercised no control over the employee once the delivery in Wisconsin had occurred. The employee was killed in an automobile collision while returning to South Carolina after making the delivery. The single commissioner determined that the decedent was Seko Charlotte’s statutory employee at the time of his fatal accident pursuant to S.C. Code Ann. § 42–1–410. The appellate panel reversed, concluding that the decedent was not an employee of Seko Charlotte on the return trip because West Expedited had the exclusive right of control over the decedent after the deliveries were made in Wisconsin.

The Supreme Court indicated the appellate panel had concentrated on the wrong issue. The issue was not one of control; of course, Seko Charlotte exercised little control over the decedent once the delivery had been accomplished. Rather, the correct issue was whether (a) the work being performed by the decedent employee was an important part of Seko Charlotte’s trade or business, (b) the activity performed was a necessary, essential, and integral part of the owner’s business; or (3) the identical activity performed by the subcontractor has been performed by employees of the owner. If any of these tests was satisfied, the decedent was Seko Charlotte’s statutory employee. The Court held that under these facts, the decedent qualified as a statutory employee. Seko Charlotte had conceded the decedent was a statutory employee on the trip to Wisconsin; nothing ever changed.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Collins v. Seko Charlotte & Nationwide Mut. Ins. Co., 2015 S.C. LEXIS 172 (Apr. 29, 2015) [2015 S.C. LEXIS 172 (Apr. 29, 2015)]

See generally Larson’s Workers’ Compensation Law, § 70.01 [70.01]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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