New Department of Labor Memo Could Mean Big Changes for Employers

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Man in car driving showing smart phone.The Department of Labor (DOL) recently issued a memo indicating a change in direction in how the Department will determine whether an individual is an employee or an independent contractor. Other posts have described how critical the distinction between an “independent contractor” and an “employee” is for determining whether an injured person is entitled to workers’ compensation benefits. The new memo lists new factors to consider when determining whether a person is an employee or independent contractor. These include:

  • Is the work an “integral part” of the employer’s business? The more closely related the worker’s job is to the employer’s business, the more likely it is the worker will be found to be an employee. The example is provided of a carpenter providing integral services to a residential home framing company.
  • Does the worker’s managerial skill affect the worker’s opportunity to profit or loss? If a worker’s own activities have a strong influence on whether that worker realizes a profit from his or her activities or suffers a loss from those activities, the worker is more likely to be an independent contractor.
  • How does the worker’s relative investment compare to the employer’s investment? The more personal resources the worker invests into his or her job compared with the resources the employer invests into the worker, the more likely it is the worker is an independent contractor.
  • Does the work performed require special skill and initiative? A worker who has control over the scope of the job, how the job is performed, and is able to market his or her skill to other employers is likely to be an independent contractor. The existence of highly specialized skills by itself does not indicate a person is an independent contractor, but rather it is how these skills are used that is determinative.
  • Is the relationship between the worker and employer permanent or indefinite? A worker who provides services on an at-will basis is more likely an employee and not an independent contractor, whose services are usually provided on a job-by-job basis.
  • What is the nature and extent of the employer’s control over the worker? The more details about the worker’s work that the employer can control or dictate – when it must be performed, the order in which tasks are completed, the materials that must be used, etc. – the more likely it is the worker is an employee.

Contact a South Carolina Workers’ Compensation Attorney for Help
The memo sums up the DOL’s opinion thusly: “most workers are employees.” This means that if you are injured on a jobsite in South Carolina, you may have a strong argument to make that you are entitled to workers’ compensation benefits – even if your employer is claiming you are an independent contractor. Workers’ compensation attorney David R. Price, Jr. can evaluate the facts and circumstances of your case, including the nature of your employment relationship with your employer, and help determine whether you are entitled to benefits. If so, he will assist you and vigorously represent your interests and help you secure the compensation benefits you need. Call (864) 271-2636 to schedule your free initial consultation today.


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