Lewis v. L.B. Dynasty, Inc.

SHORT, J.,

dissenting.

The majority finds the Appellate Panel of the South Carolina Workers’ Compensation Commission (Appellate Panel) was correct in finding Lewis was an independent contractor of the Boom Boom Room Studio 54 (the Club) in Columbia. However, I would find that Lewis was an employee of the Club; therefore, I respectfully dissent.4

“The existence of an employment relationship is a jurisdictional issue for purposes of workers’ compensation benefits *138and is reviewable under a preponderance of the evidence standard.” Shatto v. McLeod Reg’l Med. Ctr., 394 S.C. 552, 557, 716 S.E.2d 446, 449 (Ct.App.2011). Because the issue of Lewis’s employment status is jurisdictional, this court makes findings based on its view of the preponderance of the evidence. See Brayboy v. WorkForce, 383 S.C. 463, 464, 681 S.E.2d 567, 567 (2009) (making its findings based on its view of the preponderance of the evidence because the issue of Bray-boy’s employment status was jurisdictional).

“Under South Carolina law, the primary consideration in determining whether an employer/employee relationship exists is whether the alleged employer has the right to control the employee in the performance- of the work and the manner in which it is done.” Paschal v. Price, 392 S.C. 128, 132, 708 S.E.2d 771, 773 (2011). “The test is not the actual control exercised, but whether there exists the right and authority to control and direct the particular work or undertaking.” Kilgore Group, Inc. v. S.C. Emp’t Sec. Comm’n, 313 S.C. 65, 68, 437 S.E.2d 48, 49 (1993). “ ‘An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, without being subject to the control of his employer except as to the result of his work.’ ” Bates v. Legette, 239 S.C. 25, 34-35, 121 S.E.2d 289, 293 (1961) (quoting 56 C.J.S. Master and Servant § 3(1)). “The four principal factors indicating the right of control are (1) direct evidence of the right to, or exercise of, control; (2) the method of payment; (3) the furnishing of equipment; and (4) the right to fire.” Paschal, 392 S.C. at 132, 708 S.E.2d at 773. This court evaluates the four factors with equal force in both directions. Wilkinson v. Palmetto State Transp. Co., 382 S.C. 295, 300, 676 S.E.2d 700, 702 (2009).

Although I could not find any South Carolina appellate court cases that have addressed whether an exotic dancer is classified as an employee or independent contractor, other courts in various jurisdictions have analyzed the same or similar arrangements between exotic dancers and clubs and found an employment relationship existed. See Club Paradise, Inc. v. Oklahoma Emp’t Sec. Comm’n, 213 P.3d 1157, 1161 (Okla.Civ.App.2008) (finding the exotic dancers were employees of Club Paradise based on the club’s control over its dancers’ performance, and noting the workers performed *139on the club’s premises, the club could dismiss its workers at any time, and either party could terminate their relationship without liability); Yard Bird, Inc. v. Va. Emp’t Comm’n, 28 Va.App. 215, 224-25, 503 S.E.2d 246 (1998) (finding exotic dancers were employees based on the amount of control the Yard Bird had over its dancers, and noting the club attempted to enforce its rule that dancers not leave the premises between sets, dancers could choose times they worked, but only in conformity with the club’s schedule, and the club required dancers to comply with liquor control laws and regulations that governed its licensing status). While these jurisdictions do not apply an identical test to that utilized by the courts in South Carolina for determining whether an employment relationship exists, they are to some degree similar and consider the degree of control the alleged employer exerts over the worker.

In the case before us, Lewis presented evidence that the Club exercised the right to control her and the other exotic dancers in the performance of their work. When hired, Lewis was required to present her identification and sign a form agreeing to comply with the Club’s rules. The Club provided virtually all of the necessary tools for the dancers to perform, including towels, lockers, alcohol, music, chairs, tables, a stage, poles, a “V.I.P.” area, and customers. Although dancers could choose their own costumes, they could not remove the bottom portion of their costume or choose when they performed on stage. The Club set the fees for V.I.P. dances and required the dancers to remit a portion of the fees they collected to the Club. The Club fined or fired dancers if they missed their turn in the rotation or altered the V.I.P. dance price. Once the dancers reported to work, the Club fined or fired them if they left before a certain time. In addition, the Club fined or fired dancers for failure to comply with the Club’s rules. Thus, under the totality of the circumstances, I find the Club exercised the sufficient amount of control over Lewis in the performance of her work to establish an employment relationship, and the Appellate Panel erred in finding Lewis was an independent contractor.

. The Club did not have workers’ compensation insurance; therefore, the South Carolina Uninsured Employer’s Fund (the Fund) became involved in the case. The Fund filed an initial brief on appeal; however, it did not file a final brief. Rule 208(a)(4), SCACR, provides that if a respondent does not file an initial brief, this court is permitted to take whatever action the court deems proper. Respondent’s failure to file a brief alone can justify reversal. See Turner v. Santee Cement Carriers, Inc., 277 S.C. 91, 96, 282 S.E.2d 858, 860 (1981) (noting that respondent did not file a brief with the court and her failure to do so allowed the court to take such action upon the appeal as it deemed proper, and stating this failure alone would justify reversal; however, it simply considered it as an additional ground). Despite the Fund’s failure to file a final brief, this court permitted the Fund to appear and argue the case at oral argument.