South Carolina Independent Contractor Agreement Template
South Carolina runs one four-factor control test across all three acts, so what changes from statute to statute is the burden of proof, not the answer.
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Introduction
An Independent Contractor Agreement is a contract between a business and a self-employed worker covering scope, payment, ownership of the work product, and how the engagement ends. South Carolina does not require one for most engagements, and the reason is worth understanding before you rely on the document. Classification here is decided by a legal test rather than by the title on the paper, and South Carolina is unusual in running the same test almost everywhere. S.C. Code Ann. 41-27-230(1)(b) defines employment by the usual common law rules, S.C. Code Ann. Regs. 47-8 reduces those rules to four factors for the unemployment agency, and the South Carolina Supreme Court applies the identical four factors in workers' compensation: control, who furnishes the equipment, the method of payment, and the right to terminate. What shifts from act to act is the burden rather than the test. On the wage side there is no state test at all, because the Payment of Wages Act defines only employer and wages and contains no definition of employee, and South Carolina has neither a state minimum wage law nor a state overtime law, so federal law occupies that space. Written-contract requirements do exist here, but only in three sectors. Outside them a well-drafted agreement is evidence of how the parties intended to operate, not a rule the state is obliged to follow.
Key Things to Know
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South Carolina has never enacted an ABC test. S.C. Code Ann. 41-27-230(1)(b) defines employment as service by an individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee. That is a control test, and the statute contains no burden-shifting language of the kind used in ABC states.
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S.C. Code Ann. Regs. 47-8 tells unemployment examiners which four factors to weigh: whether the employer has the right to control or exercises control over the services performed, whether the employer furnishes the equipment, whether the method of payment indicates an employment relationship, and whether the employer has the right to terminate the relationship.
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Workers' compensation uses the same four factors. In Lewis v. L.B. Dynasty, Inc., 411 S.C. 637 (2015), the Supreme Court restated the list as direct evidence of the right or exercise of control, furnishing of equipment, method of payment, and right to fire, held that each factor is considered with equal force, and confirmed that the mere presence of one factor indicating employment is not dispositive. The crux is the purported employer's right to control.
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The burden differs even though the test does not. In a workers' compensation claim the burden of proving the employer-employee relationship is on the claimant, by the greater weight of the evidence, and because classification is jurisdictional an appellate court takes its own view of the preponderance of the evidence rather than deferring to the Commission. Cutting the other way, the Act is construed liberally in favor of coverage and only exceptions and restrictions to coverage are strictly construed.
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Wage and hour law here works by omission. S.C. Code Ann. 41-10-10 defines only employer and wages. There is no statutory definition of employee anywhere in the Payment of Wages Act and no ABC or economic realities test in the chapter, so the common law control inquiry governs by default. South Carolina also has no state minimum wage statute and no state overtime statute, which leaves minimum wage and overtime to the Fair Labor Standards Act and its separate economic realities analysis.
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Two provisions limit what paperwork can achieve. S.C. Code Ann. 41-10-100 provides that no provision of the Payment of Wages Act may be contravened or set aside by a private agreement, so a worker who is in fact an employee keeps the Act's protections whatever the contract says. S.C. Code Ann. Regs. 47-8 adds that the South Carolina Department of Employment and Workforce is not bound by the rulings of other entities when it decides whether an employer-employee relationship exists.
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The written-contract mandates are sector-specific, not general. Direct sellers leave the unemployment definition under S.C. Code Ann. 41-27-260(18) only where a written contract provides that the individual will not be treated as an employee for federal and state tax purposes. Vehicle owners and bona fide lease-purchasers driving for a motor carrier need a valid independent contractor contract under S.C. Code Ann. 41-27-260(19) and 42-1-360(9). A licensed real estate salesperson on straight commission is outside the Workers' Compensation Act under S.C. Code Ann. 42-1-360(7) only where the salesperson has signed a valid independent contractor agreement with the broker. Outside those sectors no written agreement is required and none creates a presumption.
Key decisions before you file
Before you file a Independent Contractor Agreement in South Carolina, a few decisions shape the document: which option to choose and what each one means. The Independent Contractor Agreement guide walks through them.
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South Carolina Requirements for Independent Contractor Agreement
Employment means service performed for wages under a contract of hire by any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee. The statute contains no ABC test and no burden-shifting language, so the analysis is a control inquiry rather than a set of prongs the hiring party must disprove.
The Department of Employment and Workforce examines whether the employer has the right to control or exercises control over the services performed, whether it furnishes the equipment, whether the method of payment indicates an employment relationship, and whether it has the right to terminate. The regulation also states the Department is not bound by the rulings of other entities, though it may consider material from the United States Department of Labor, the Internal Revenue Service, state agencies, and the courts.
The Supreme Court weighs direct evidence of the right or exercise of control, furnishing of equipment, method of payment, and the right to fire, each with equal force, with the crux being the purported employer's right to control the claimant in the performance of the work. The mere presence of one factor indicating an employment relationship is not dispositive.
The burden of proving the relationship of employer and employee is on the claimant, and the proof must be made by the greater weight of the evidence. Because classification is jurisdictional, an appellate court may take its own view of the preponderance of the evidence. Workers' compensation law is construed liberally in favor of coverage, with only exceptions and restrictions to coverage strictly construed.
The Payment of Wages Act defines only employer and wages. There is no definition of employee in the chapter and no ABC or economic realities test, so the common law employer-employee relationship governs by default. South Carolina also has no state minimum wage statute and no state overtime statute, which leaves those obligations to the Fair Labor Standards Act and its separate economic realities analysis.
No provision of the Payment of Wages Act may be contravened or set aside by a private agreement. A contractor label does not remove the Act's protections from a worker who is in fact an employee. Related duty owed to employees: S.C. Code Ann. 41-10-30(A) requires written notice at hiring of normal hours and wages agreed upon, the time and place of payment, and the deductions to be made, with changes given in writing at least seven calendar days before taking effect.
A direct seller is outside the unemployment definition of employment only where three conditions hold together: the individual sells or solicits the sale of consumer products other than in a permanent retail establishment, substantially all remuneration is directly related to sales or other output rather than hours worked, and the services are performed under a written contract providing that the individual will not be treated as an employee for federal and state tax purposes.
An owner or bona fide lease-purchaser of a tractor trailer, tractor, or other vehicle who, under a valid independent contractor contract, provides that vehicle and driving services to a motor carrier is excluded from employment for unemployment purposes and is considered an independent contractor rather than an employee under the workers' compensation title. Any acquisition or financing must be on terms equal to those available in customary and usual retail transactions in the State. The parties may separately agree that the driver is covered under the carrier's policy, in which case the driver is an employee for that title only.
The Workers' Compensation Act does not apply to a licensed real estate salesperson engaged in the sale, leasing, or rental of real estate for a licensed real estate broker on a straight commission basis who has signed a valid independent contractor agreement with the broker. All three elements are required, so commission-only pay without the signed agreement does not carry the exclusion.
The Act does not apply to an employer who has regularly employed fewer than four employees in the same business within the State, or whose total annual payroll in the previous calendar year was less than $3,000. The definition of employee at S.C. Code Ann. 42-1-130 is otherwise broad, covering every person engaged in employment under any appointment, contract of hire, or apprenticeship, express or implied, oral or written, and it permits a sole proprietor or partner actively engaged in the business to elect into coverage if the insurer is notified.
Frequently Asked Questions
Less than in most states, and that is the point. South Carolina applies one common law control test across unemployment insurance and workers' compensation, and has no state classification test for wages at all. The agreement is therefore evidence of how the parties intend to operate rather than a form the state prescribes, except in three sectors where a written contract is an element of an exclusion.
No. South Carolina has never enacted one. S.C. Code Ann. 41-27-230(1)(b) defines employment by reference to the usual common law rules applicable in determining the employer-employee relationship, and S.C. Code Ann. Regs. 47-8 applies four control factors rather than three prongs. The regulation notes that the agency may consider material published by the Internal Revenue Service and others, but the twenty-factor federal list is not the South Carolina standard.
Whether the hiring party has the right to control or exercises control over the services performed, whether it furnishes the equipment, whether the method of payment indicates an employment relationship, and whether it has the right to terminate the relationship. S.C. Code Ann. Regs. 47-8 gives that list to unemployment examiners and the Supreme Court applies the same four in workers' compensation, holding in Lewis v. L.B. Dynasty, Inc. that each is considered with equal force.
The claimant. Proof of the employer-employee relationship must be made by the greater weight of the evidence. Because the question is jurisdictional, an appellate court may take its own view of the preponderance of the evidence rather than deferring to the Commission. Pulling the other way, workers' compensation law is construed liberally in favor of coverage, and only exceptions and restrictions to coverage are strictly construed.
Not generally. Three sectors are the exception. Direct sellers need a written contract providing that the individual will not be treated as an employee for federal and state tax purposes under S.C. Code Ann. 41-27-260(18)(c). Vehicle owners driving for a motor carrier need a valid independent contractor contract under S.C. Code Ann. 41-27-260(19) and 42-1-360(9). Licensed real estate salespersons on straight commission need a signed independent contractor agreement with the broker under S.C. Code Ann. 42-1-360(7).
There is no state minimum wage statute and no state overtime statute in South Carolina, so those questions are answered by the Fair Labor Standards Act, which uses its own economic realities analysis rather than the state control factors. The Payment of Wages Act at S.C. Code Ann. ch. 41-10 governs how and when wages are paid to employees, and it defines only employer and wages, leaving employee to the common law.
No. S.C. Code Ann. 41-10-100 states that no provision of the chapter may be contravened or set aside by a private agreement. If the worker is in fact an employee, the Act's requirements apply whatever the contract says, including the written notice of hours, wages, pay time and place, and deductions that S.C. Code Ann. 41-10-30(A) requires an employer to give each employee at the time of hiring.
It is not obliged to. S.C. Code Ann. Regs. 47-8 states that the South Carolina Department of Employment and Workforce is not bound by the rulings of other entities when making its determination about whether an employer-employee relationship exists. A contract and a 1099 are evidence that goes into the four-factor weighing, and consistent day-to-day conduct is what makes them persuasive. Attorney review is an option where the exposure is significant.
S.C. Code Ann. 42-1-360(2) takes an employer outside the Act where it has regularly employed fewer than four employees in the same business in the State, or where its total annual payroll in the previous calendar year was less than $3,000. Separately, S.C. Code Ann. 42-1-130 lets a sole proprietor or partner who is actively engaged in the business elect into coverage, provided the insurer is notified of the election.