People who may be eligible for workers’ compensation benefits in South Carolina must be employees and must have an on-the-job injury or illness, also meeting all deadlines and reporting requirements for work-related injuries and the filing of a workers’ compensation claim, generally.  However, claims can be very nuanced and not as straightforward as they seem, and that is why I always recommend that people consult with an attorney for free to know their rights.

Oftentimes workers who are paid in cash are misclassified as independent contractors by their employers.  Whether a worker is an independent contractor or an employee is a question of law.  Sometimes employers will say they do not have a workers’ compensation insurance policy or that because a worker is undocumented, they have no rights.  Misinformation abounds.

What if I am misclassified as an independent contractor by my employer?

You can still proceed with your workers’ compensation claim, but you will want to be able to show that you were, in fact, an employee, and not an independent contractor.  In South Carolina workers’ compensation law, there is a test with multiple factors designed to determine whether a worker qualifies as an independent contractor or an employee.  You should consult with an attorney to have this evaluation done to determine whether you qualify for workers’ compensation benefits under South Carolina law.

What if my employer does not have workers’ compensation insurance?

You may be able to proceed with a claim regardless, by involving the South Carolina Uninsured Employers Fund or going upstream to another contractor, depending on the circumstances.  In order to prevail and obtain benefits from the State of South Carolina as opposed to a private insurance company, you must show that the employer was required to have workers’ compensation insurance.  It may also be possible to make your claim with your employer’s upstream contractor, for example, if you work for a sub-contractor and there is an insured general contractor.  You should consult with an attorney to explore all your options under South Carolina Workers’ Compensation laws and to determine coverage.

What if I am undocumented and do not have permission to work?

You have rights.  Under South Carolina’s Workers’ Compensation laws, you can still qualify for benefits under the law.  Sometimes, employers will threaten unemployed employees and provide misinformation, such as threatening to retaliate against the worker if they file a claim, or advising the worker that he or she does not have any rights because he or she is undocumented.  These actions by employers should not take place.  You should immediately consult with an attorney for a private consultation about your rights.

What if I was terminated from my employment after my work accident?

This is not extremely uncommon, although it does not happen with extreme frequency either in South Carolina Workers’ Compensation cases.  This issue can be a quagmire, depending on the circumstances.  But you may still be entitled to all the workers’ compensation benefits under South Carolina law regardless of your employment status at the time you make the claim.  Termination can also be relevant to your rights and benefits as your claim progresses.