Spencer v. Johnson & Johnson Seafood, Inc. ( 1990 )

EAGLES, Judge.

Defendant assigns as error the Commission’s findings that an employer-employee relationship existed between plaintiff and defendant. “Defendant contends that the Plaintiff has failed to show that an employer-employee relationship existed between the parties and that the Industrial Commission had no jurisdiction to make an award to the Plaintiff in this matter.” Defendant argues that when applying the factors articulated in Hayes v. Board of Trustees Eton College, 224 N.C. 11, 29 S.E.2d 137 (1944), plaintiff has not carried the burden of showing that she was an employee of Johnson & Johnson Seafood, Inc. Defendant contends that the evidence is clear that plaintiff was an independent contractor and not an employee or servant. We agree.

It is well established that in order for a claimant to recover under the Workers’ Compensation Act, the employer-employee relationship must exist at the time of the claimant’s injury. The Industrial Commission’s determination that this relationship did not exist in the instant case is a jurisdictional fact and is therefore not conclusive on appeal. This Court has the duty to examine the entire record and make independent findings concerning the existence of the employer-employee relationship. The burden of proof on the issue falls on the claimant.

Ramey v. Sherwin-Williams Co., 92 N.C. App. 341, 342, 374 S.E.2d 472, 473 (1988).

“G.S. sec. 97-2(2) defines an ‘employee’ as ‘every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, . . . but excluding persons whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer. . . .’” Id.

The distinction between employee and an independent contractor for purposes of the Workers’ Compensation Act must turn on the particular facts of the case. Our Supreme Court has stated that the ‘vital test’ to be answered in distinguishing between the two is whether ‘the employer has or has not retained the right of control or superintendence over the contractor or employee as to details.’ Hayes v. Elon College, 224 N.C. 11, 15, 29 S.E.2d 137, 140 (1944). As a guide to determining what degree of independence a worker has retained, the Court in Hayes outlined a number of factors which, if found, point towards a worker’s being considered to be an independent contractor:

The 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.

The presence of no particular one of these indicia is controlling. Nor is the presence of all required.

Id., quoting 224 N.C. at 16, 29 S.E.2d at 140 (citations omitted).

After carefully reviewing the record in light of the factors articulated in Hayes, we conclude that plaintiff has failed to carry her burden of proof establishing the existence of an employer-employee relationship at the time of her injury by accident and may not avail herself of the Workers’ Compensation Act.

We find the following facts to be controlling in this case. First, plaintiff went to defendant only when she heard work was available. She was free to work for any other fish houses depending on the availability of work. As a matter of fact, plaintiff also worked for Meekins Seafood during the same time she worked for defendant.

Second, plaintiff received no training from defendant nor was she instructed on how to shuck the scallops. Plaintiff used her own knife, gloves and apron. At the hearing, plaintiff even testified that most workers used their own equipment even though defendant did have equipment available for those who needed it.

Third, plaintiff did piece work. She was paid $.40 per pound of scallops shucked. She did not receive a salary or hourly wages. Plaintiff’s pay was dependent upon the pounds of scallops shucked.

Fourth, plaintiff further testified at the hearing that defendant did not give any instructions on what to do or how to shuck the scallops. Plaintiff testified that no one was terminated because he/she did not do his/her job correctly.

Fifth, plaintiff testified that no one was hired for the job. The workers just found out usually by word of mouth about the availability of work, put their name and social security number on a piece of paper and began work. Plaintiff testified that she received a check from defendant on Friday or Saturday of each week that she worked and neither income taxes nor social security taxes were withheld from her pay. Plaintiff further testified that the check from defendant had “contract labor” written on it. During the hearing one of plaintiff’s witnesses, who was also a scallop shucker for defendant, testified that she received a 1099 Form at the end of the year for income tax purposes. Alvin Johnson also testified that the “boats paid for the shuckers” since the money paid to the shucker-workers was deducted from the money defendant paid to the boat operators for the scallops.

Sixth, plaintiff testified that the only supervision the workers had was when weighing the scallops and at that time workers were merely told not to let the scallops sit beyond a certain time period before weighing them.

Seventh, plaintiff testified that she set her own work hours and was free to work whenever she pleased.

Here the evidence conclusively indicates that plaintiff was an independent contractor and not an employee of defendant for purposes of the Workers’ Compensation Act. Accordingly, the Commission was without jurisdiction to render an award under the Workers’ Compensation Act.

Reversed and remanded.

Judge Greene concurs. Judge WELLS dissents.