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Automobile Collisions / Workers' Compensation

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Employees Not Independent Contractors Get Workers Compensation

Employees not independent contractors get workers compensation.  What if the person injured is an exotic dancer, who could be an independent contractor or an employee?

LeAndra worked as an exotic dancer, performing five to seven days a week throughout North and South Carolina, dancing at different establishments, including Studio 54 Boom Boom Room (the club) in Columbia, S.C. One night when LeAndra was dancing at the club, a fight broke out and she was struck in the abdomen by a stray bullet, which caused severe damage to her internal organs and resulted in the loss of a kidney as well as substantial scarring--which could be devastating for a woman in her line of work.

LeAndra filed a claim for workers' compensation and was denied.  The hearing examiner, appellate commission and court of appeals all agreed she was an independent contractor, essentially self-employed, and not entitled to workers' comp.  The South Carolina supreme court took a closer look and decided she deserved compensation as an employee.

Even though she worked for cash and never filed a tax return, several factors make LeAndra an employee rather than an independent contractor.  First, the club exercised complete control over her working conditions (when, where, appearance, job duties), the club furnished the equipment (stage, pole, VIP lounge), the club determined method of payment (set prices, collected funds and divided shares), and the club had the exclusive right to fire her.  See Lewis v. L.B. Dynasty, 2015 WL 1223710 (S.C. March 18, 2015).

In Wisconsin, the result would be similar under Wis. Stats. Sec. 102.07(8) independent contractors are employees unless all of the following:

1. Maintains own office, equipment, and materials.

2. Has a federal employer identification number or has filed separate income tax returns.

3. Controls the means of performing the work.

4. Incurs the main expenses related to the work.

5. Responsible for the satisfactory completion of work.

6. Receives compensation for per job or commission.

7. May realize a profit or suffer a loss for work.

8. Has continuing business liabilities.

9. Success or failure of business depends on the relationship of business receipts to expenditures.

Injured employees not independent contractors get workers compensation, but one should not assume they are independent contractors and not entitled to workers' compensation benefits just because they are not a W2 paycheck person.

McCormick Law Office attorneys best results in successful awards of worker's compensation benefits for a painter, drywaller, carpenter and truck driver that were originally denied as not covered employees were in proving these factors.  Honest and trustworthy documentation is key, so great care in record keeping is of value.  A truly self-employed contractor should have workers' compensation to cover themself.

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