In South Carolina the Worker’s Compensation Commission only has jurisdiction over employers who have or should have had WC insurance. The statute on point explains, the Commission lacks jurisdiction over a “person who has regularly employed in service less than four employees in the same business within the state.” S.C. Code Ann. Section 42-1-360(2)(Emphasis added).https://law.justia.com/codes/south-carolina/title-42/chapter-1/section-42-1-360/
1. Regular Employment:
The law does not require the employer have four employees on the date of the accident, though that would be ideal. Instead, in Hartzell v. Palmetto Collision, the Court of Appeals noted the SC court’s reliance on NC law to determine characteristics of “regular employment” as mentioned in §42-1-360 (2). Hartzell, 406 S.C. 233, 750 S.E.2d 97 (2013). The case adopted the NC court’s test to determine what qualifies as “regularly employed” which is as follows: 1) employment of the same number of individuals though not necessarily the same individuals 2) during the relevant period of time 3) with some constancy 4) not by chance or for particular occasion 5) without regard to the regularity of days or hours worked. Hartzell, 406 S.C at 750, 750 S.E.2d. at 102 (2013). https://casetext.com/case/hartzell-v-palmetto-collision-1
2. Relevant time period:
The Commission inquiry will be answered by determining what is the “relevant time period” during which the Commission should consider if an employer had 4 or more employees. In Hernandez-Zuniga, the SC Court of Appeals held the “employer’s established mode or plan of operation dictates, to a large extent, the relevant time period and both duration and regularity of occurrence are important factors.” Hernandez-Zuniga v. Tickle, 374 S.C. 235, 647 S.E. 2d. 691 (2007). https://case-law.vlex.com/vid/hernandez-zuniga-v-tickle-894727726 The court cited a NC Court of Appeals case, Grouse v. DRB Baseball Management (DRB). Grouse v. DRB Baseball Management, 121 N.C. App. 376. 465 S.E. 2d 568 (1996). Grouse found it appropriate to examine the one-year period preceding the date of the accident to determine the number of employees. They found the NC Commission had jurisdiction, though DRB only had three employees on the day of the actual accident. Id.https://law.justia.com/cases/north-carolina/court-of-appeals/1996/coa94-977-1.html
Henandez also cites Professor Larson on the matter of jurisdiction. 4 Larson states in its applicable section “if an employer has once regularly employed enough men to come under the act, it remains there even when the number employed temporarily falls below the minimum.” 4 Larson, Workers’ Compensation §§74.01-02; Hernandez, 647 S.E. 2d at 697.
Conclusion:
If your employer has or had 4 or more employees during what the Workers’ Compensation Commission determines to be the “relevant time period,” the South Carolina Uninsured Employers’ Fund (SCUEF) will step into the place of the employer and provide WC benefits to the claimant, even if the employer did not have 4 employees on the date of the accident. Uninsured Employers’ Fund | State Accident Fund Challenges may arise to proving the number of employees as often these employers do not keep proper payroll records and owners can even be difficult to find, but even just the claimant’s own testimony can be sufficient in those circumstances.
These claims require a hearing with the Uninsured Employers Fund and are ones where counsel will likely be essential. https://www.kphippslaw.com/steps-to-take-post-accident/
