Employment Law

July - October 2012

Employment status
To determine whether a claimant is an employee or an independent contractor, the court must examine the following four factors as a means of analyzing the work relationship as a whole: (1) direct evidence of the right or exercise of control; (2) furnishing of equipment; (3) method of payment; and (4) right to fire.
Lewis v. L.B. Dynasty, No. 5032 (S.C. Ct. App., Sept. 5, 2012) (Shearouse Adv. Sh. No. 31)

Feb. - May 2012

“Past due benefits” does not unequivocally include health insurance benefits.
Knight v. Austin, No. 27095 (S.C. Sup. Ct., Feb. 22, 2012) (Shearouse Adv. Sh. No. 7)

Educators’ pay
Where certified educators are performing educational duties, even if classified as another position, they are entitled to a salary that is commensurate with the teachers' pay schedule.
Bell v. SCDC, No. 27114 (S.C. Sup. Ct., Apr. 11, 2012) (Shearouse Adv. Sh. No. 13)

Federal Arbitration Act
The Federal Arbitration Act does not apply to an employment agreement if the dispute does not implicate interstate commerce. The analysis is the same regardless of whether the agreement is an employment contract or a recruiting contract.
Flexon v. PHC-Jasper, No. 4950 (S.C. Ct. App., Mar. 7, 2012) (Shearouse Adv. Sh. No. 9)

Temporary employees
Implementing a "retirement opportunity" and immediately "recasting" the vacant positions as temporary positions is a violation of recall rights under 23A S.C. Code Ann. Regs. 19-719.04.
Bell v. SCDC, No. 27114 (S.C. Sup. Ct., Apr. 11, 2012) (Shearouse Adv. Sh. No. 13).

July - Oct. 2011

Payment of Wages Act
Under the S.C. Payment of Wages Act, S.C. Code Sections 41-10-10 to 100, without evidence that a person permitted a group to violate the Act, he cannot be held liable simply because he was a member of the group.
Allen v. Pinnacle Healthcare Sys., LLC, No. 4855 (S.C. Ct. App., July 27, 2011) (Shearouse Adv. Sh. No. 25).

Public policy exception
The Court overruled Evans to the extent that it holds a jury may determine whether discharging an employee on certain grounds is a violation of public policy. In South Carolina, an at-will employee has a cause of action for wrongful termination where there is a retaliatory termination in violation of a clear mandate of public policy. The public policy exception does not only apply in situations where the employer asks the employee to violate the law or the reason for the termination itself is a violation of criminal law. Although the Court agreed with the Evans court that there is no statutory remedy within the Act that would preclude an employee from maintaining a wrongful termination action, the Court declined to address whether the public policy exception applies when an employee is terminated in retaliation for filing a wage complaint with the Department of Labor.
Barron v. Labor Finders of S.C., No. 27018 (S.C. Sup. Ct., Aug. 1, 2011) (Shearouse Adv. Sh. No. 25).