You Be the Judge

Can Helper Recover Comp From eBusiness?

A moving service that pairs moving customers with movers' helpers claims it is not the employer of those helpers for the purposes of workers' comp.
By: | May 15, 2015

A moving business operated by Sean Unterkoefler executed a contract to assist customers of eMove, an Internet marketplace where individuals renting moving trucks could search for and hire local moving companies to assist with loading or unloading rental trucks. When a job was complete, eMove would release the customer’s payment to the moving company, keeping 15 percent of the payment for its services.

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Unterkoefler used rental moving trucks and equipment supplied by customers. He set the days and times he would perform moving services and set his own rates, times, and coverage areas. Customers set the date, time, and location of the jobs. When Unterkoefler could not complete the job himself, he asked for help and paid his helpers in cash.

A moving helper was working part time for Unterkoefler when he injured his hand and arm while moving a washer/dryer unit. The helper had performed 10 to 15 jobs for Unterkoefler in five months and also worked for other moving companies. He sought workers’ compensation benefits.

The workers’ compensation commissioner denied benefits, finding the helper failed to prove he was an employee of Unterkoefler or that eMove was his statutory employer. The Workers’ Compensation Commission affirmed the commissioner’s decision. The helper appealed.

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How the Court Ruled

The court explained that Unterkoefler did not have the right to control the helper in the performance of his work. When he was injured, the helper was completing a job for Unterkoefler on his own. Unterkoefler did not exercise control over the work he performed but merely gave him the customer’s information. The customer dictated the date, time, and location of the job. When the job was completed, Unterkoefler gave him cash for the entire cost of the job.

Regarding the furnishing of equipment, Unterkoefler did not have his own moving truck or equipment and used the truck that customers rented. Regarding the method of payment, Unterkoefler was paid by the job and split his earnings with the number of helpers he had during the job, paying them in cash. Unterkoefler could choose his helpers, and the helper could decline a job. There was no set schedule, and the helper did not work on a consistent basis.

Furthermore, the court found that Unterkoefler was not subject to the workers’ compensation law because he did not regularly employ four or more employees during the relevant time period.

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A is incorrect. The court found that eMove was not the helper’s statutory employer. The court agreed with eMove’s argument that it was not a moving company. Its business or trade was to create a marketplace for individuals to meet movers.

C is incorrect. The court concluded that Unterkoefler was not the helper’s employer.

B is correct. In Ferguson v. New Hampshire Insurance Co., et al., No. 5307 (S.C. Ct. App. 04/01/15), the South Carolina Court of Appeals held that Unterkoefler was not the worker’s employer.

Editor’s note: This feature is not intended as instructional material or to replace legal advice.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

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The R&I Editorial Team can be reached at [email protected]