Plaintiff Found to be Employee
In Archie v. Kirk, (COA 11-436) decided on December 20, 201, the North Carolina Court of Appeals reviewed a decision by the North Carolina Industrial Commission awarding worker’s compensation benefits to a person electrocuted while working on a billboard. In that case, the record showed that the Plaintiff was sometimes paid a lump sum amount but often paid by the hour. The evidence also showed that Kirk exercised little supervision over on the Plaintiff. In affirming the decision of the Industrial Commission and holding that an employer – employee relationship existed between Kirk and the Plaintiff, the Court focused on the fact that Kirk had the right to supervise job performance by the Plaintiff even if that supervision did not occur very often. The Court also relied upon evidence that Kirk transported the Plaintiff to jobsites and provided tools to be used on the job.
IMPORTANT: North Carolina courts generally look at the following factors to determine whether a person is an independent contractor: Whether the person (1) is engaged in an independent business, calling or occupation; (2) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (3) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (4) is not subject to being fired because he adopts one method of doing the work rather than another; (5) is not regularly in the employ of the other contracting party; (6) is free to use such assistants as he may think proper; (7) has full control over such assistant’s; and (8) selects his own time.