Legal Question in Employment Law in North Carolina

In terms of workers' compensation coverage, I would tend to agree with you. The law there gives several factors to consider when looking at a person in terms of an employee vs. an independent contractor. The essential component is a right to control. If the employer has the right to control, it is immaterial whether he actually exercises it. Scott v. Waccamaw Lumber Co., 232 N.C. 162, 59 S.E.2d 425 (1950) �...when one who, exercising independent employment, contracts to do a piece of work, according to his own judgment and methods, and without being subject to his employer except as to the result of the work,... is clearly an independent contractor.� Denton v. South Mt. Pulpwood Co., 69 N.C. App. 366, 317 S.E.2d 433, cert denied, 311 N.C. 753, 321 S.E. 2d 131 (1984). When determining whether an alleged employee is actually an employee, as opposed to an independent contractor, the test is to decide whether the alleged employer has retained the power to sufficiently control the details of the work performed by the alleged employee. In Hayes v. Bd. of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944), the Supreme Court provided eight factors that courts should consider in determining the degree of control exercised by the hiring party. An independent contractor relationship likely exists if [t]he person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time. Several factors have been developed to make this determination and those factors are to be considered with other indicia. The presence of no one particular factor is controlling, nor is the presence of all required. McCown v. Hines, 353 N.C. 683, 549 S.E.2d 175 (2001); Hayes v. Bd of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944).

Take a look at those factors. Not all need to apply for there to be a finding that you are an employee, at least in terms of workers' compensation and in the eyes of the NC Industrial Commission.