In today’s economy, more and more employers are eschewing official hiring in favor of bringing on independent contractors, who can be paid less and are not legally entitled to benefits in most situations. Many worker’s rights granted to employees are not given to independent contractors, but some are still preserved, especially if there is an issue of improper classification.
Bringing A Workplace Discrimination Suit
Without being a full employee, an independent contractor has much less standing to bring suit against a discriminatory employer, simply because they do not enjoy all the benefits of employment. The rationale is that since they are not full employees, they have greater freedom to go elsewhere, though this is not always accurate. As a consequence, many practices that are usually grounds for an employee to allege workplace discrimination are not prohibited by law.
There is one significant exception, however. Section 1981 of the Civil Rights Act of 1866 (not 1966) expressly protects racial minorities’ rights to enter into contracts—and all the worker’s rights that go along with that action. This has been held to extend to independent contractors’ rights in terms of combating discrimination, as a discriminatory environment may affect the person of color’s ability to enter into a contract.
Misclassification Issues: Contractors or Employees?
The bulk of suits brought by independent contractors will hinge on the issue of whether they are truly contractors or employees. South Carolina has no specific definition of “independent contractor” in its state law, though a definition of sorts has developed via state law and case precedent. Generally, an independent contractor can be defined by three major characteristics: (1) whether or not the employment is independent—in other words, whether someone must come to an office and work in the same manner as most other employees or not; (2) the methods by which the work is completed—if the employee has discretion as to how the job can be done; and (3) the degree of employer control the person is subjected to (aside from requirements as to the completion of the work).
South Carolina courts use a four-part “right to control” test to determine whether the authority to control the worker exists. Other factors include the method by which the worker is paid, the right to fire the worker (or not), and whether or not equipment is provided to the worker. If sufficient evidence shows that the employer has control over the worker, they are generally held to be an employee, rather than an independent contractor. If found an employee, the worker may be entitled to all the benefits of an employee, possibly including retroactive amounts.
Get Help from a South Carolina Employment Attorney
If you are an independent contractor and you believe that you have been discriminated against, all may seem lost. But there may be a way to find your employer liable for such treatment. Consulting a knowledgeable South Carolina employment law attorney can be a good first step. Attorney A. Christopher Potts and his Charleston firm have many years’ experience handling discrimination cases, and will do their very best to assist you.
Contact us today to schedule an appointment.