Disclaimer: This article provides general information about South Carolina law and does not constitute legal advice.
Detailed Answer
Under South Carolina law, a claimant who seeks to recover lost wages in a civil or workers’ compensation case must prove the amount of earnings lost with reasonable certainty. When original pay rate and hour records are missing, you can use secondary evidence and reasonable estimation methods to bridge the gap.
1. Use Secondary Evidence under S.C. Rule of Evidence 1004
The South Carolina Rules of Evidence allow admission of secondary evidence when originals are lost or unavailable. You may introduce copies of W-2 forms, tax returns, bank statements or employer correspondence to establish your historic wage rate and hours worked. See S.C. Rule of Evidence 1004.
2. Gather Alternative Documentation
- Tax Returns: Use federal and state returns to show annual income and back into hourly rates.
- W-2 and 1099 Forms: These provide year-end totals of earned wages.
- Bank and Payroll Service Statements: Identify direct deposits that match payroll intervals.
- Employer or Co-worker Affidavits: Obtain sworn statements about your typical schedule and rate.
- Diaries or Calendars: Track days and hours worked during the period in question.
3. Calculate a Reasonable Estimate
Once you collect available data, apply consistent methodology:
- Hourly Workers: Divide annual earnings by total hours worked in a representative period to get an average hourly rate.
- Salaried Employees: Divide annual salary by standard work weeks (52) and hours per week.
- Use Averages: If you have records for some weeks but not all, calculate an average of known weeks and apply it to missing weeks.
4. Supplement with Expert or Vocational Testimony
In complex cases, a vocational economist can reconstruct earning capacity and lost wages using industry data and your work history. Their report can support your estimate and meet the court’s “reasonable certainty” requirement in civil litigation.
5. Workers’ Compensation Recordkeeping Requirement
Under South Carolina’s Workers’ Compensation Act, employers must maintain payroll records and wage statements. See S.C. Code Ann. §42-9-10. If these records are unavailable, you may still prove wage loss through alternative documentation and affidavit evidence.
Helpful Hints
- Start gathering alternative records immediately after an incident or termination.
- Keep a contemporaneous diary of missed work days, hours and activities.
- Request a formal affidavit from supervisors or coworkers verifying your schedule.
- Subpoena payroll providers or third-party services if an employer will not cooperate.
- Consult a vocational expert early to guide evidence collection and methodology.