Rest Assured v. SCDEW ( 2014 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Rest Assured, LLC, Appellant,
v.
South Carolina Department of Employment and
Workforce, Respondent.
Appellate Case No. 2013-000774
Administrative Law Court
Ralph King Anderson, III, Administrative Law Judge
Unpublished Opinion No. 2014-UP-235
Heard May 7, 2014 – Filed June 18, 2014
REVERSED
Thornwell F. Sowell, III, of Sowell Gray Stepp &
Laffitte, LLC, of Columbia, and David Cochran Dick, Jr.,
of Charleston, for Appellant.
Debra Sherman Tedeschi, of Columbia, for Respondent.
PER CURIAM: Rest Assured, LLC, appeals an order by the Administrative Law
Court (ALC) finding for the South Carolina Department of Employment and
Workforce (SCDEW) that individuals working as personal care aides were
employees pursuant to South Carolina law. Rest Assured also challenges the
ALC's refusal to allow it to supplement the record. We reverse and find the aide
workers were independent contractors.
We agree with Appellant's argument that their personal care aide workers were not
employees but contract workers. The contract agreement and the conduct between
Appellant and its workers were similar to that of Wilkinson ex rel. Wilkinson v.
Palmetto State Transp. Co., 382 S.C. 295, 299, 676 S.E.2d 700, 702 (2009) (stating
whether independent contractor or employee status prevails depends on the issue of
control and whether employer had the right to control the performance of the
work). In our consideration of the record as a whole, we do not find there is
substantial evidence in the record to support the ALC's decision. See ESA Servs.,
LLC v. S.C. Dep't of Revenue, 392 S.C. 11, 24, 707 S.E.2d 431, 438 (Ct. App.
2011) (noting that "although this court shall not substitute its judgment for that of
the ALC as to findings of fact, we may reverse or modify decisions that are
controlled by error of law or are clearly erroneous in view of the substantial
evidence on the record as a whole").
We disagree with Appellant's argument that the record should be supplemented.
Subsection 1-23-380(3) of the South Carolina Code (Supp. 2013) requires for
additional evidence to be submitted it must be material and there must be good
reasons for the failure to present the evidence. Here, Appellants presented no good
reason for their five-year delay in presenting the evidence.
REVERSED.
HUFF, THOMAS, and PIEPER, JJ., concur.