Southwest Appraisal Group, LLC v. Administrator, Unemployment Compensation Act , 324 Conn. 822 ( 2017 )

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SOUTHWEST APPRAISAL GROUP, LLC v.
ADMINISTRATOR, UNEMPLOYMENT
COMPENSATION ACT
(SC 19651)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.
Argued December 15, 2016—officially released March 21, 2017
Michael J. Spagnola, for the appellant (plaintiff).
Richard T. Sponzo, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Philip M. Schulz, assistant attorney general,
for the appellee (defendant).
Opinion
ROBINSON, J. The sole issue in this appeal is whether
part C of the ABC test; see General Statutes § 31-222
(a) (1) (B) (ii);1 which governs whether an employment
relationship exists for purposes of the Unemployment
Compensation Act (act), General Statutes § 31-222 et
seq., requires proof that the putative employee perform
services for third parties other than the putative
employer, in order to be deemed an independent con-
tractor. The plaintiff, Southwest Appraisal Group, LLC,
appeals2 from the judgment of the trial court dismissing
its appeal from the decision of the Board of Review
of the Employment Security Appeals Division (board),
which found it liable for unemployment compensation
taxes, plus interest, for three of its automobile apprais-
ers following an audit by the defendant, the Administra-
tor of the Unemployment Compensation Act. On appeal,
the plaintiff claims that the trial court improperly
applied part C of the ABC test, which asks whether
‘‘such individual is customarily engaged in an indepen-
dently established trade, occupation, profession or busi-
ness of the same nature as that involved in the service
performed’’; General Statutes § 31-222 (a) (1) (B) (ii)
(III); in deeming the three appraisers to be employees
on the ground that the plaintiff had failed to prove that
they had performed appraisal services for anyone other
than the plaintiff, despite other evidence indicating that
they operated independent businesses. We conclude
that evidence of the performance of services for third
parties is not required to prove part C of the ABC test
but, rather, is a single factor that may be considered
under the totality of the circumstances analysis govern-
ing that inquiry. Accordingly, we reverse the judgment
of the trial court.
The record reveals the following facts and procedural
history.3 The plaintiff is a proprietor-owned automotive
damage appraisal business that assesses damaged vehi-
cles, including estimating repair costs and evaluating
total losses and salvages. Various insurance companies
contract with the plaintiff to inspect insured vehicles
for which damage claims have been filed. The plaintiff
then subcontracts with various independent appraisers,
who perform the damage appraisals on a flat fee basis.
Although the appraisers were required to pass a state
licensing test, the plaintiff did not pay for any of the
appraisers’ licensing or testing fees. The plaintiff
reported compensation to the appraisers on Internal
Revenue Service Form 1099, did not withhold any taxes,
and did not provide the appraisers with fringe benefits
such as health insurance, vacation time, travel reim-
bursement, or a retirement plan.
The plaintiff generally left the appraisers to their own
devices in accomplishing their tasks. The plaintiff did
not supply any of them with vehicles or professional
liability insurance. It also did not provide the appraisers
with any training or uniforms. The appraisers had their
own home offices and provided their own equipment,
such as cameras, telephones, and computers; the plain-
tiff provided them only a standardized cost estimating
software program that its insurance clients required.
The appraisers also had printed their own business
cards, which noted their contact information, licenses,
and independent status. Several of the appraisers had
registered business names. All of the appraisers individ-
ually bore the risk of making a profit or a loss.
In 2011, the defendant conducted an audit of the
plaintiff for tax years 2009 and 2010. Following the
audit, the defendant determined that six of the apprais-
ers—Sam Draco, Michael Gerber, Scott Kehoe, Russell
Mansfield, Andrew Patrick, and Philip Zembruski—
were misclassified as independent contractors rather
than as the plaintiff’s employees. The defendant further
determined that, because of the misclassification, the
plaintiff owed $2486.73 in unemployment contribution
taxes, plus interest, for calendar years 2009 and 2010.
After an evidentiary hearing pursuant to General Stat-
utes § 31-242,4 an appeals referee (referee) upheld the
defendant’s decision to assess unemployment taxes,
and dismissed the plaintiff’s appeal.
The plaintiff appealed from the decision of the referee
to the board pursuant to General Statutes § 31-249.5 In
its de novo review of the referee’s decision, the board
deemed parts A and B of the ABC test satisfied with
respect to all six appraisers, concluding that: (1) ‘‘the
weight of the evidence supports a finding that the
appraisers were not subject to the [plaintiff’s] direction
and control in the performance of their work’’; and
(2) the plaintiff had proven that the appraisers’ work,
performed at the homes and offices of the customers
of its insurance company clients, was done outside the
plaintiff’s place of business. The board then turned to
part C, which requires proof that ‘‘such individual is
customarily engaged in an independently established
trade, occupation, profession or business of the same
nature as that involved in the service performed . . . .’’
General Statutes § 31-222 (a) (1) (B) (ii) (III).
On the basis of these facts, the board concluded that
the plaintiff had proven part C with respect to Gerber,
Mansfield, and Zembruski because they each held them-
selves out as having an ‘‘independently established auto
damage appraisal business,’’ whose stability and lasting
nature was demonstrated by the receipt of significant
compensation from entities other than the plaintiff. The
board, however, determined that the plaintiff had not
proven part C with respect to Draco, Kehoe, and Pat-
rick. The board acknowledged that Draco, Kehoe, and
Patrick had indicia of independent business such as
home offices, independent state licensure, and business
cards, and that Draco, in particular, had held himself out
to the public as an independent appraiser and looked for
additional work from numerous insurance companies
and auto body shops by making his availability known
by word of mouth. Citing its decision in Martelle Build-
ers, Inc. v. Administrator, Unemployment Compensa-
tion Act, Dept. of Labor, Employment Security Appeals
Division, Board of Review Case No. 9010-BR-11 (May
15, 2012), however, the board noted that ‘‘[a]lthough
Draco made his services available to entities other than
the [plaintiff], he testified that he did not in fact perform
work for others. Part C of the ABC test requires the
[plaintiff] to demonstrate that the individuals are actu-
ally engaged in an independently established business.
The fact that Draco maintained contractual freedom to
engage in appraisal services for other entities does not
satisfy [p]art C of the ABC test.’’ The board reached
the same conclusion with respect to Kehoe and Patrick,
observing that they had not participated in the hearing
before the referee, and that James Murphy, the plain-
tiff’s proprietor, ‘‘could not demonstrate that either
Kehoe or Patrick performed similar services for others.’’
Indeed, the board emphasized that, unlike with Draco,
there was no evidence that Kehoe or Patrick had offered
their services to others or otherwise held themselves
out as independent appraisers, despite the fact that
both had registered independent business names.
Accordingly, the board rendered a decision sustaining
the plaintiff’s appeal and reversing the referee’s deci-
sion in part with respect to Gerber, Mansfield, and Zem-
bruski, but upholding the referee’s finding of liability
for unemployment contributions with respect to Draco,
Kehoe, and Patrick.
The plaintiff subsequently appealed from the decision
of the board to the trial court in accordance with Gen-
eral Statutes § 31-249b6 and Practice Book § 22-1 et seq.
Following oral argument, the trial court issued a memo-
randum of decision agreeing with the board’s conclu-
sion that the plaintiff had failed to satisfy part C with
respect to Draco, Kehoe, or Patrick. The trial court
rejected the plaintiff’s claim that the board had improp-
erly determined that proof of part C of the ABC test
requires ‘‘individuals [to] engage in work for multiple
entities simultaneously in order to qualify as indepen-
dent contractors,’’ and that the board’s precedent
‘‘merely allows [such work] to be one of many factors
for consideration.’’ The trial court concluded that
requiring proof that the putative employees actually
performed services for other entities is consistent with
the economic dependency concerns contemplated by
part C, such as whether the end of the relationship with
the putative employer will result in the unemployment
of the putative employees. Acknowledging that Draco,
Kehoe, and Patrick, like the other three appraisers,
‘‘maintained their own offices and equipment, were
responsible for maintaining their licenses, and had their
own business cards,’’ and that Draco had ‘‘advertised
by word of mouth,’’ the trial court nevertheless held
that the board reasonably gave ‘‘considerable weight’’
to the lack of evidence that they ‘‘had provided their
services to third parties either during the [audit] period
or beyond.’’ The court stated, ‘‘[s]imply put, there is
no indication on this record that any of these three
businesses would survive without their relationship
with the plaintiff.’’ Accordingly, the trial court rendered
judgment dismissing the plaintiff’s appeal. This appeal
followed. See footnote 2 of this opinion.
On appeal, the plaintiff claims that the trial court
improperly upheld the board’s construction of § 31-222
(a) (1) (B) (ii), namely, that part C of the ABC test
‘‘requires putative independent contractors not only to
be customarily engaged in an independently established
trade, occupation, profession or business of the same
nature as that of service performed, but to be custom-
arily engaged in an independently established and suc-
cessful trade, occupation, profession or business.’’
(Emphasis in original.) Describing this treatment of part
C as ‘‘radical and wholly unsupported,’’ the plaintiff
contends that no deference to the board’s decision is
required because it is inconsistent with the board’s use
of a totality of the circumstances approach to part C
in prior cases. See, e.g., Martelle Builders, Inc. v.
Administrator, Unemployment Compensation Act,
supra, Dept. of Labor, Board of Review Case No. 9010-
BR-11; Mintz v. Administrator, Unemployment Com-
pensation Act, Dept. of Labor, Employment Security
Appeals Division, Board of Review Case No. 836-BR-
91 (May 8, 1991). The plaintiff emphasizes that this
interpretation of part C will have ‘‘practical implications
. . . damning to Connecticut industry,’’ especially in
difficult economic times, by tying the legitimacy of an
independent contractor relationship to the putative con-
tractor’s business success. Arguing that the trial court
improperly relied on our decision in JSF Promotions,
Inc. v. Administrator, Unemployment Compensation
Act, 265 Conn. 413, 420, 828 A.2d 609 (2003), the plaintiff
also cites sister state cases such as Industrial Claim
Appeals Office v. Softrock Geological Services, Inc., 325
P.3d 560 (Colo. 2014), and In the Matter of the Appeal
of Hendrickson’s Health Care Service, 462 N.W.2d 655
(S.D. 1990), and contends that the ‘‘focus [instead]
should be on the steps taken and efforts made by the
putative independent contractor to perform work for
others and secure compensation for those services.’’
The plaintiff then argues that, when a proper totality
of the circumstances analysis is applied to the facts in
the record, it demonstrates that Draco, Patrick, and
Kehoe were independent contractors during the audit
period.
In response, the defendant contends that we should
defer to the board’s interpretation of part C because it
has previously been subjected to judicial scrutiny by
the Superior Court and has been time-tested since the
board’s 1988 decision in Feshler v. Hartford Dialysis,
Dept. of Labor, Employment Security Appeals Division,
Board of Review Case No. 995-BR-88 (December 27,
1988) (copy contained in the file of this case in the
Supreme Court clerk’s office). Emphasizing the reme-
dial nature of the act, the defendant argues that we
should construe exceptions strictly in favor of workers,
whom it is intended to benefit. The defendant then
contends that the board’s construction of part C as
requiring the actual performance of services for other
entities at the time of rendering the same services for
the putative employer is consistent with the ‘‘critical
statutory term ‘customarily engaged.’ ’’ The defendant
posits that the board’s construction of part C does not
‘‘require a successful business but only [the perfor-
mance of] services for others in an independent busi-
ness that still remains subject to the risk of profit or
loss.’’ The defendant argues that requiring the actual
provision of services to third parties other than the
putative employer is consistent with the interpretations
of part C in JSF Promotions, Inc. v. Administrator,
Unemployment Compensation Act, supra, 265 Conn.
420–21, Daw’s Critical Care Registry, Inc. v. Dept. of
Labor, 42 Conn. Supp. 376, 622 A.2d 622 (1992), aff’d,
225 Conn. 99, 622 A.2d 518 (1993) (per curiam), and
F.A.S. International, Inc. v. Reilly, 179 Conn. 507, 427
A.2d 392 (1980), along with numerous sister state cases.
See, e.g., Carpet Remnant Warehouse, Inc. v. Dept.
of Labor, 125 N.J. 567, 592–93, 593 A.2d 1177 (1991);
Margoles v. Labor & Industry Review Commission,
221 Wis. 2d 260, 269–73, 585 N.W.2d 596 (App.), cert.
denied, 221 Wis. 2d 654, 588 N.W.2d 631 (1998). Finally,
the defendant posits that, even under the plaintiff’s con-
struction of part C of the test necessitating a totality of
the circumstances analysis, the evidence in the record
nevertheless supports the board’s decision. We, how-
ever, agree with the plaintiff in part, and conclude that
a new administrative hearing is required because a puta-
tive employee’s work for other entities is a relevant,
but not dispositive, factor in the totality of the circum-
stances analysis that governs the relevant inquiry under
part C.
‘‘For purposes of the act, ‘employment’ is defined in
part by . . . § 31-222 (a) (1) (B) (ii), which provides in
relevant part that ‘[s]ervice performed by an individual
shall be deemed to be employment subject to this chap-
ter irrespective of whether the common law relation-
ship of master and servant exists, unless and until it is
shown to the satisfaction of the administrator that (I)
such individual has been and will continue to be free
from control and direction in connection with the per-
formance of such service, both under his contract for
the performance of service and in fact; and (II) such
service is performed either outside the usual course of
the business for which the service is performed or is
performed outside of all the places of business of the
enterprise for which the service is performed; and (III)
such individual is customarily engaged in an indepen-
dently established trade, occupation, profession or busi-
ness of the same nature as that involved in the service
performed . . . .’ This statutory provision is commonly
referred to as the ‘ABC test,’ with parts A, B and C
corresponding to clauses I, II and III, respectively. . . .
This statutory provision is in the conjunctive. Accord-
ingly, unless the party claiming the exception to the
rule that service is employment shows that all three
prongs of the test have been met, an employment rela-
tionship will be found.’’ (Citation omitted.) JSF Promo-
tions, Inc. v. Administrator, Unemployment
Compensation Act, supra, 265 Conn. 418–19.
Whether evidence that the putative employees per-
formed services for third parties other than the putative
employer is necessary to prove part C under § 31-222
(a) (1) (B) (ii) (III) presents an issue of statutory inter-
pretation subject to plenary review in accordance with
General Statutes § 1-2z. See, e.g., Standard Oil of Con-
necticut, Inc. v. Administrator, Unemployment Com-
pensation Act, 320 Conn. 611, 642, 134 A.3d 581 (2016).
In interpreting statutory language we ‘‘do not write on
a clean slate, but are bound by our previous judicial
interpretations of this language and the purpose of the
statute.’’ (Internal quotation marks omitted.) Commis-
sioner of Public Safety v. Freedom of Information Com-
mission, 312 Conn. 513, 527, 93 A.3d 1142 (2014).
Moreover, it is well settled that we accord ‘‘great
weight’’ and deference to previous agency interpreta-
tions of a statute when they are ‘‘time-tested’’ and ‘‘rea-
sonable.’’ (Internal quotation marks omitted.) Standard
Oil of Connecticut, Inc. v. Administrator, Unemploy-
ment Compensation Act, supra, 642–43.
‘‘[W]hen interpreting provisions of the act, we take
as our starting point the fact that the act is remedial and,
consequently, should be liberally construed in favor of
its beneficiaries. . . . Indeed, the legislature under-
scored its intent by expressly mandating that the act
shall be construed, interpreted and administered in
such manner as to presume coverage, eligibility and
nondisqualification in doubtful cases. . . . We also
note that exemptions to statutes are to be strictly con-
strued. . . . Nevertheless, the act should not be con-
strued unrealistically in order to distort its purpose.
. . . While it may be difficult for a situation to exist
where an employer sustains his burden of proof under
the ABC test . . . it is important to consider that [t]he
exemption [under the act] becomes meaningless if it
does not exempt anything from the statutory provisions
. . . where the law and the facts merit the exemption
in a given case. . . . Rather, statutes are to be con-
strued so that they carry out the intent of the legislature.
. . . We must construe the act as we find it . . . .’’
(Citations omitted; internal quotation marks omitted.)
Id., 616–17; see also General Statutes § 31-274 (c). In
applying the ABC test, we must balance preventing the
use of sham independent contractor agreements to
avoid unemployment insurance obligations against
‘‘hamper[ing] those who undertake to do business
together as independent contracting parties, rather than
as employer and employee,’’ on a legitimate basis.
(Internal quotation marks omitted.) Daw’s Critical
Care Registry, Inc. v. Dept. of Labor, supra, 42 Conn.
Supp. 404.
In the present case, it is undisputed that the plaintiff
has satisfied parts A and B of the ABC test. Accordingly,
we turn to part C, which considers whether the putative
employee ‘‘is customarily engaged in an independently
established trade, occupation, profession or business
of the same nature as that involved in the service per-
formed . . . .’’ General Statutes § 31-222 (a) (1) (B) (ii)
(III). The ‘‘adverb ‘independently’ modifies the word
‘established’ and in that context, fairly construed,
means that the trade, occupation, profession or busi-
ness was established independently of the ‘employer’
. . . . Moreover, such ‘independently established activ-
ity’ must be one in which the ‘employee’ is ‘customarily
engaged.’ ‘Customarily’ has been said to mean ‘usually,
habitually, regularly.’ . . . The use of ‘is,’ the present
tense, shows that the ‘employee’ must be engaged in
such independently established activity at the time of
rendering the service which is the subject of inquiry.
An established business has been said to be one that
is ‘permanent, fixed, stable, or lasting.’ ’’ (Citations
omitted.) Daw’s Critical Care Registry, Inc. v. Dept.
of Labor, supra, 42 Conn. Supp. 407. The ‘‘performance
of like services . . . must be independent of whatever
connection [the putative employees] have with [the
putative employer] and their continued performance of
such like services must not be subject to their relation-
ship with the principal.’’ F.A.S. International, Inc. v.
Reilly, supra, 179 Conn. 515. The question is whether
‘‘one or more enterprises created by [the putative
employees] which exist separate and apart from their
relationships with [the putative employer] and which
will survive the termination of that relationship.’’ Id.
Put differently, part C ‘‘seeks to discern whether the
worker is wearing the hat of an employee of the
employing company, or is wearing the hat of his own
independent enterprise.’’7 (Internal quotation marks
omitted.) Athol Daily News v. Board of Review of the
Division of Employment & Training, 439 Mass. 171,
181, 786 N.E.2d 365 (2003).
In considering the type of evidence necessary to
prove part C, we begin with JSF Promotions, Inc. v.
Administrator, Unemployment Compensation Act,
supra, 265 Conn. 413, on which both parties heavily
rely. In JSF Promotions, Inc., we considered whether
product demonstrators who distributed samples and
coupons to customers in stores, were employees of the
company, JSF Promotions, Inc. (JSF), which contracted
with the stores to provide those product demonstration
services, despite the fact that the demonstrators
worked under an ‘‘ ‘[i]ndependent [c]ontractor
[a]greement.’ ’’ Id., 416. Noting the lack of evidence
of independent enterprise, such as business cards, we
upheld the board’s determination that the product dem-
onstrators did not satisfy part C. Id., 416–17. Citing
sister state cases, including In the Matter of the Appeal
of Hendrickson’s Health Care Service, supra, 462
N.W.2d 657–59, we concluded that ‘‘the existence of a
contractual provision permitting the demonstrators in
the present case to perform demonstration services for
entities other than JSF does not necessarily mean that
they have established businesses independent of their
relationship with JSF. If the legislature had intended
to exclude from the statutory definition of employment
those workers who, in addition to satisfying the first two
prongs of the test, are free to engage in an independently
established trade, occupation, profession or business,
but who have not done so customarily, it easily could
have so provided. Accordingly, we conclude that the
third prong is not satisfied merely because the individu-
als are free to establish businesses or to work for other
entities.’’ (Emphasis altered.) JSF Promotions, Inc. v.
Administrator, Unemployment Compensation Act,
supra, 420; see id., 420–21 (‘‘[t]he fact that, under their
contract with JSF, the demonstrators were permitted
to engage in an independently established trade, occu-
pation, profession or business does not demonstrate
that they were not at the economic risk of unemploy-
ment by the conduct of JSF’’ [internal quotation
marks omitted]).
In our view, the defendant and the trial court read
too narrowly our statements in JSF Promotions, Inc.,
that part C ‘‘is not satisfied merely because the individu-
als are free to establish businesses or to work for other
entities,’’ and that ‘‘an individual who is permitted
under a contract for services to establish a business or
perform additional services for third parties does not
necessarily do so’’; (emphasis altered) id., 420; as stand-
ing for the proposition that an individual must actually
perform services for third-party entities in order to be
considered an independent contractor. Our observation
in JSF Promotions, Inc., that there was no evidence
that the product demonstrators had engaged in services
for other companies must be read in the context of the
record in that case, in which there was no ‘‘documenta-
tion that the demonstrators were in business for them-
selves,’’ such as business cards. (Internal quotation
marks omitted.) Id., 416. Without any other evidence
of an independent business, only proof that the product
demonstrators had also performed their services for
third parties while working for JSF would have sup-
ported the employer’s position that they were in fact
independent contractors. Particularly when read in light
of this court’s other cases considering part C,8 JSF Pro-
motions, Inc., suggests that the performance of services
for third parties is relevant evidence with respect to
part C, but must be viewed in the context of the
entire record.9
Both our cases and the board’s decisions applying
part C of the ABC test counsel, then, that part C must
be considered in relation to the totality of the circum-
stances, with that inquiry guided by a multifactor test.10
See, e.g., King’s Speech & Learning Center v. Adminis-
trator, Unemployment Compensation Act, Dept. of
Labor, Employment Security Appeals Division, Board
of Review Case No. 9000-BR-15 (June 2, 2015); Martelle
Builders, Inc. v. Administrator, Unemployment Com-
pensation Act, supra, Dept. of Labor, Board of Review
Case No. 9010-BR-11. This ‘‘totality of the circumstances
test . . . evaluates the dynamics of the relationship
between the putative employee and the employer; there
is no dispositive single factor or set of factors.’’ Indus-
trial Claim Appeals Office v. Softrock Geological Ser-
vices, Inc., supra, 325 P.3d 565. Factors to consider in
evaluating the totality of the circumstances under part
C include: (1) the existence of state licensure or special-
ized skills; (2) whether the putative employee holds
himself or herself out as an independent business
through the existence of business cards, printed
invoices, or advertising; (3) the existence of a place of
business separate from that of the putative employer;
(4) the putative employee’s capital investment in the
independent business, such as vehicles and equipment;
(5) whether the putative employee manages risk by
handling his or her own liability insurance; (6) whether
services are performed under the individual’s own name
as opposed to the putative employer; (7) whether the
putative employee employs or subcontracts others; (8)
whether the putative employee has a saleable business
or going concern with the existence of an established
clientele; (9) whether the individual performs services
for more than one entity; and (10) whether the perfor-
mance of services affects the goodwill of the putative
employee rather than the employer. See id., 564–65; see
also Margoles v. Labor & Industry Review Commis-
sion, supra, 221 Wis. 2d 269 (applying five factor test
to part C inquiry, namely: ‘‘[1] integration; [2] advertis-
ing or holding out; [3] entrepreneurial risk; [4] economic
dependence; and [5] proprietary interest’’).
Thus, just as the mere freedom to provide services
for third parties is not by itself dispositive under part
C; JSF Promotions, Inc. v. Administrator, Unemploy-
ment Compensation Act, supra, 265 Conn. 420;
‘‘whether the individual actually provided services for
someone other than the employer is [not] dispositive
proof of an employer-employee relationship.’’ Indus-
trial Claim Appeals Office v. Softrock Geological Ser-
vices, Inc., supra, 325 P.3d 565. Context matters—
consistent with JSF Promotions, Inc. v. Administrator,
Unemployment Compensation Act, supra, 420, and
Daw’s Critical Care Registry, Inc. v. Dept. of Labor,
supra, 42 Conn. Supp. 408–409—and our sister state
cases demonstrate that the degree to which a putative
employee provides similar services for third parties can-
not be considered in isolation from, or given primacy
over, the other factors. For example, in Softrock Geolog-
ical Services, Inc., the Colorado Supreme Court held
that the administrative agency had improperly applied
part C in determining that a geologist was an employee
because he worked only for a single company during
the audit period, in light of evidence that the company
‘‘did not provide [the geologist] with training or tools
during this time; rather, [the geologist] was expected
to, and did, use his own vehicle, tools, and equipment
(except for certain specialized equipment that he rented
from [the company]) to complete the jobs. [The geolo-
gist] also had his own business cards, maintained his
own liability insurance, and did not represent himself
as a [company] employee.’’11 Industrial Claim Appeals
Office v. Softrock Geological Services, Inc., supra, 562.
Similarly, the Vermont Supreme Court has concluded
that a seamstress satisfied part C because, in addition
to having ‘‘knitted for other companies and individuals
in the past,’’ she ‘‘owned her own equipment,’’ meaning
that her nearly forty hour per week workload for the
company at issue did not require a finding of employ-
ment insofar as some people need to work multiple
jobs ‘‘full-time . . . simply to make ends meet.’’ (Inter-
nal quotation marks omitted.) Fleece on Earth v. Dept.
of Employment & Training, 181 Vt. 458, 467–68, 923
A.2d 594 (2007). In contrast, In the Matter of the Appeal
of Hendrickson’s Health Care Service, supra, 462
N.W.2d 659, the South Dakota Supreme Court held that
health-care providers did not satisfy part C, when in
addition to not having ‘‘any clientele independent of
that provided by’’ the referral service, they also ‘‘did
not advertise their health care services . . . did not
have business premises or business cards,’’ and were
subject to dismissal for ‘‘violating the provisions of the
‘Subcontractor’s Responsibilities’ document,’’ indicat-
ing that they were ‘‘employed by [the referral service]
and dependent upon it for their livelihood.’’ These cases
demonstrate that evidence of the provision of services
to third parties, or lack thereof, becomes more signifi-
cant in proving independent contractor status in the
context of cases lacking other indicia of a putative
employee’s independent enterprise.12
We emphasize that particular caution is necessary in
considering the relative size or success of the putative
employee’s otherwise independent business in connec-
tion with the totality of the circumstances analysis
under part C. Giving improper primacy to this factor
risks ‘‘subjecting an employer unfairly to the decisions
of the putative employee and an unpredictable hindsight
review,’’ without consideration of ‘‘the intent of the
parties, the number of weekly hours the putative
employee actually worked for the employer, or whether
the putative employee even sought other work in the
field.’’13 Industrial Claim Appeals Office v. Softrock
Geological Services, Inc., supra, 325 P.3d 565; see Athol
Daily News v. Board of Review of the Division of
Employment & Training, supra, 439 Mass. 182 (‘‘[t]he
breadth of each carrier’s delivery service is a function,
not only of the original subscriber list given to the
carrier by the [newspaper], but of the individual initia-
tive of the carrier’’). It also, as the plaintiff points out,
would have a chilling effect on businesses’ willingness
to contract with otherwise legitimate small businesses
with minimal client bases and revenues, such as those
run as start-ups or by persons who are transitioning to
retirement.14 The defendant’s reliance on the ‘‘underly-
ing remedial purpose of the act as a whole’’ notwith-
standing, we should not ‘‘interfere with the legislature’s
intent of exempting employers from their obligation to
pay unemployment taxes when they hire independent
contractors to perform work for the enterprise. In other
words, because all portions of a statute are not intended
to have a remedial effect, the application of the remedial
canon of statutory interpretation should be restrained
in order to effectuate the legislative compromise’’
embodied by the ABC test. Standard Oil of Connecti-
cut, Inc. v. Administrator, Unemployment Compensa-
tion Act, supra, 320 Conn. 658.
Turning to the record in the present case, we con-
clude that the trial court improperly upheld the board’s
decision that the plaintiff did not satisfy part C of the
ABC test. The board’s decision was based on a misap-
prehension of the governing legal standard insofar as
it accorded dispositive weight to the lack of evidence
that Draco, Kehoe, and Patrick performed services for
third parties, despite the ample evidence suggesting
that they had independent business enterprises.
Accordingly, we conclude that remand to the board is
required for fact-finding in accordance with the proper
legal standard.15 See Almada v. Administrator, Unem-
ployment Compensation Act, 137 Conn. 380, 392–93,
77 A.2d 765 (1951) (remanding case to administrative
agency for new hearing and finding of facts in accor-
dance with court’s articulated definition of lockout);
Fabrizi v. Administrator, Unemployment Compensa-
tion Act, 12 Conn. App. 207, 209–12, 530 A.2d 203 (1987)
(trial court should have remanded case to agency to
determine factually whether employee quit voluntarily
and without cause, rather than directing judgment);
accord Dept. of Public Safety v. State Board of Labor
Relations, 296 Conn. 594, 606 and n.16, 996 A.2d 729
(2010) (remand to labor agency required for application
of proper statutory standard defining ‘‘managerial
employees’’); see also General Statutes § 31-249b; Prac-
tice Book § 22-9 (a).
The judgment is reversed and the case is remanded
to the trial court with direction to sustain the plaintiff’s
appeal and to remand the matter to the Board of Review
of the Employment Security Appeals Division for fur-
ther proceedings in accordance with this opinion.
In this opinion the other justices concurred.
1
The ABC test is set forth in General Statutes § 31-222 (a) (1) (B) (ii),
which defines the term ‘‘employment’’ to include, in part, services performed
by ‘‘any individual who, under either common law rules applicable in
determining the employer-employee relationship or under the provisions of
this subsection, has the status of an employee. Service performed by an
individual shall be deemed to be employment subject to this chapter irrespec-
tive of whether the common law relationship of master and servant exists,
unless and until it is shown to the satisfaction of the administrator that (I)
such individual has been and will continue to be free from control and
direction in connection with the performance of such service, both under
his contract for the performance of service and in fact; and (II) such service
is performed either outside the usual course of the business for which the
service is performed or is performed outside of all the places of business
of the enterprise for which the service is performed; and (III) such individual
is customarily engaged in an independently established trade, occupation,
profession or business of the same nature as that involved in the service
performed . . . .’’ See also JSF Promotions, Inc. v. Administrator, Unem-
ployment Compensation Act, 265 Conn. 413, 418, 828 A.2d 609 (2003) (‘‘[t]his
statutory provision is commonly referred to as the ‘ABC test,’ with parts A,
B and C corresponding to clauses I, II and III, respectively’’).
We note that, although General Statutes § 31-222 has been amended by
the legislature since the events underlying the present appeal; see, e.g.,
Public Acts 2013, No. 13-168, § 1; those amendments have no bearing on
the merits of this appeal. In the interest of simplicity, we refer to the current
revision of the statute.
2
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
3
We draw our recitation of the facts from those found by the board in
its original decision and its subsequent decision on the plaintiff’s motion to
correct its findings. The plaintiff does not contest the accuracy of these
findings.
4
We note that, although General Statutes § 31-242 has been amended by
the legislature since the events underlying the present appeal; see Public
Acts 2016, No. 16-169, § 7; that amendment has no bearing on the merits of
this appeal. In the interest of simplicity, we refer to the current revision of
the statute.
5
We note that, although General Statutes § 31-249 has been amended by
the legislature since the events underlying the present appeal; see Public
Acts 2016, No. 16-169, § 11; that amendment has no bearing on the merits
of this appeal. In the interest of simplicity, we refer to the current revision
of the statute.
6
We note that, although General Statutes § 31-249b has been amended
by the legislature since the events underlying the present appeal; see Public
Acts 2016, No. 16-169, § 13; that amendment has no bearing on the merits
of this appeal. In the interest of simplicity, we refer to the current revision
of the statute.
7
Part C has been described as the ABC test’s ‘‘prong most likely to narrow
legitimate independent contracting.’’ A. Deknatel & L. Hoff-Downing, ‘‘ABC
on the Books and in the Courts: An Analysis of Recent Independent Contrac-
tor and Misclassification Statutes,’’ 18 U. Pa. J.L. & Soc. Change 53, 70
(2015); see also Lake Preston Housing Corp. v. Dept. of Labor, 587 N.W.2d
736, 739 (S.D. 1999) (observing that ‘‘independent economic enterprise’’
demonstrates putative employee’s willingness to assume ‘‘the risk of his or
her own unemployment’’).
8
Our conclusion in JSF Promotions, Inc., was wholly consistent with the
factual records considered in this court’s previous part C jurisprudence.
See F.A.S. International, Inc. v. Reilly, supra, 179 Conn. 514–15 and n.6
(holding that art school satisfied part C with proof that artists, writers, and
photographers who reviewed work of its students practiced their artistic
professions elsewhere independently of school, in contrast to delivery per-
son in Rozran v. Durkin, 381 Ill. 97, 105, 45 N.E.2d 180 [1942], with essentially
full-time schedule, with no discussion of financial viability of artists’ careers
beyond their adjunct work for school or other indicia of independent busi-
nesses); Daw’s Critical Care Registry, Inc. v. Dept. of Labor, supra, 42
Conn. Supp. 410–11 (holding part C satisfied with respect to licensed nurses
who received assignments from referral service, and relying on their perfor-
mance of assignments for other medical facilities while working for plaintiff,
to reject argument that nurses needed ‘‘a saleable business before they
could be considered customarily engaged in an independently established
profession’’ [internal quotation marks omitted]).
9
Contrary to the defendant’s arguments, the Superior Court cases relied
upon by the trial court similarly do not support the position that the perfor-
mance of services for third parties is necessary to prove part C. Apart from
demonstrating substantially more control by the employer over the actions
of the putative employee with respect to part A of the ABC test, the part
C evidence in these cases had minimal indicia of independent business in
addition to the lack of evidence of work for third parties. See, e.g., Labor &
Logistics Management v. Administrator, Unemployment Compensation
Act, Superior Court, judicial district of Hartford, Docket No. CV-09-4042142-
S (October 3, 2012) (54 Conn. L. Rptr. 822, 825) (concluding that truck
drivers’ skills and state licensure did not make them independent contractors
when they did not have their ‘‘own tractors or trucks, advertised their
services to the public,’’ or have their own ‘‘ ‘established clientele or place
of business,’ ’’ which rendered them distinct from nurses in Daw’s Critical
Care Registry, Inc. v. Dept. of Labor, supra, 42 Conn. Supp. 376, who worked
for other agencies in addition to having state professional licensure).
10
The appendices to the parties’ briefs supply us with a comprehensive
assortment of the board’s decisions in this area. Given their fact sensitivity,
we disagree, however, with the defendant’s argument that they demonstrate
that the board has a time-tested interpretation requiring performance of the
same kinds of services for other entities in order to satisfy part C. See
Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Com-
pensation Act, supra, 320 Conn. 646 (The court rejected the claim that the
board has a ‘‘long-standing agency interpretation’’ of part B ‘‘to assist in
determining when services are performed outside the places of business of
the enterprise. Rather, the board has reached different conclusions based
on the facts and circumstances of individual cases.’’). Specifically, with the
exception of the earliest cited case, Feshler v. Hartford Dialysis, supra, Dept.
of Labor, Board of Review Case No. 995-BR-88, all of the cited decisions,
particularly those subsequent to JSF Promotions, Inc. v. Administrator,
Unemployment Compensation Act, supra, 265 Conn. 413, demonstrate
adherence to a nuanced multifactor test, with work for third parties being
but one factor in these decisions, all of which are factually distinguishable
from this case given the lack of proof therein with respect to the other
factors, such as advertising or capital investment. See, e.g., King’s Speech &
Learning Center v. Administrator, Unemployment Compensation Act,
Dept. of Labor, Employment Security Appeals Division, Board of Review
Case No. 9000-BR-15 (June 2, 2015) (part C satisfied by therapist who had
her own business and provided services for clients independently, but not
satisfied by other therapists who ‘‘ ‘moonlight[ed]’ ’’ for third parties when
there was no evidence with respect to nature of their independent businesses
beyond single listing on Internet website); Martelle Builders, Inc. v. Admin-
istrator, Unemployment Compensation Act, supra, Dept. of Labor, Board
of Review Case No. 9010-BR-11 (part C not satisfied when carpenters had
own tools, but there was no evidence of independent business such as
letterhead, invoices, or business cards and home improvement contractor
expected them to leave job site clean ‘‘presumably because failing to do so
could affect [its goodwill]’’); Wright v. Seniors Helping Seniors, Dept. of
Labor, Employment Security Appeals Division, Board of Review Case No.
9003-BR-10 (May 25, 2010) (part C not satisfied by home care aide who
received workers’ compensation and liability insurance coverage from
agency, had no licensing, no business cards, tools or advertising, and was
paid on hourly basis); Chamberland v. Labor & Logistics Management,
Dept. of Labor, Employment Security Appeals Division, Board of Review
Case No. 9004-BR-08 (December 16, 2008) (part C not satisfied by commer-
cial truck driver who did not own truck or carry liability insurance, or
advertise his services or carry business cards); Mintz v. Administrator,
Unemployment Compensation Act, supra, Dept. of Labor, Board of Review
Case No. 836-BR-91 (part C satisfied when unemployment claimant held
herself out as independent business for tax purposes, and had stationary
and business cards, with no discussion of degree of work for third parties);
see also Feshler v. Hartford Dialysis, supra, Dept. of Labor, Board of Review
Case No. 995-BR-88 (part C not satisfied with respect to dialysis nurses,
who were trained by hospital and devoted full working time to it, with no
evidence that they worked for other facilities, other than single nurse’s two
week stint at children’s summer camp).
Moreover, as in Standard Oil of Connecticut, Inc. v. Administrator,
Unemployment Compensation Act, supra, 320 Conn. 655–56, we also find
instructive the defendant’s own reference materials provided to employers,
namely, the state of Connecticut’s publication entitled ‘‘Self-Assessment of
the Employer-Employee Relationship for CT Unemployment Taxes,’’ avail-
able at https://www.ctdol.state.ct.us/uitax/abctest.doc (last visited March 8,
2017). The section pertaining to part C of the test indicates that whether
the putative employee works for more than one entity is but one factor,
insofar as it focuses primarily on the independent nature of the putative
employee’s business, such as: (1) letterhead; (2) other client references; (3)
advertisements; (4) sales tax registration and collection; (5) holding business
liability insurance; (6) business cards; (7) bills or invoices with a printed
logo or trade name; and (8) federal business identification number. Id., p.
5. The economic success of the enterprise is not mentioned at all, and
whether the putative employee works for more than one entity is but one
of eight factors also listed in part A that ‘‘may help to determine the existence
of a business’’ under part C. Id., pp. 2–5. This document suggests that the
defendant does not consider an otherwise independent business’ economic
success or multiplicity of clients to be a singularly dispositive factor under
part C.
11
We acknowledge the defendant’s reliance on Auto Damage Appraisers,
Inc. v. Industrial Commission, 666 P.2d 1113, 1114 (Colo. App. 1983), in
support of the proposition that automobile damage appraisers working for
an appraisal agency did not satisfy part C. Particularly given the multifactor
test articulated much more recently by the Colorado Supreme Court in
Industrial Claim Appeals Office v. Softrock Geological Services, Inc., supra,
325 P.3d 564–65, we believe that the Colorado intermediate appellate court’s
decision in Auto Damage Appraisers, Inc., lacks persuasive value because
it contains no factual details about the nature of the relationship at issue
in that case.
12
We note that other sister state cases provide illustrative examples.
Compare Vector Marketing Corp. v. Maine Unemployment Ins. Commis-
sion, 610 A.2d 272, 273–75 (Me. 1992) (cutlery sales managers and representa-
tives lacked proprietary interest necessary to satisfy part C when there was
no evidence they held themselves out as ‘‘an independent businessperson,’’
identified very closely with cutlery company through business cards, office
signage, and business checks, had noncompete provisions in their contracts,
and sold no products other than company’s), and Margoles v. Labor &
Industry Review Commission, supra, 221 Wis. 2d 270–73 (upholding admin-
istrative agency finding under part C that physicians were employees of
clinic given no evidence of compensation from other sources, in combination
with unexplained minimal or nonexistent advertising in telephone book, no
entrepreneurial risk beyond not being paid by clinic, no evidence of owner-
ship of equipment or other tangible assets), with Athol Daily News v. Board
of Review of the Division of Employment & Training, supra, 439 Mass.
181–82 (holding that newspaper carriers satisfied part C because they used
their own vehicles, were free to deliver for other newspapers or companies,
purchased newspapers wholesale and resold them to subscribers, with lack
of advertising not dispositive because carriers were free to advertise if they
desired ‘‘in an attempt to increase the number of subscribers on their routes
or to acquire similar relationships with other publishing companies’’).
13
Thus, we disagree with the decision of the New Jersey Supreme Court,
relied upon by the defendant, in Carpet Remnant Warehouse, Inc. v. Dept.
of Labor, supra, 125 N.J. 567. In that case, the court articulated a multifactor
test in remanding the case to the administrative agency to determine whether
carpet installers could satisfy part C, and directed the agency to ‘‘consider the
amount of remuneration each installer received from [the putative employer]
compared to that received from other retailers. Those who received a small
proportion of compensation from [the putative employer] are more likely
to be able to withstand losing [its] business.’’ Id., 593.
We similarly disagree with the decision of the Arkansas Court of Appeals
in Stepherson v. Director, Employment Security Dept., 49 Ark. App. 52, 895
S.W.2d 950 (1995), on which the defendant also relies. In Stepherson, the
court concluded that part C was not satisfied solely on the basis of the fact
that the truck drivers drove full-time for the single company at issue, with
no consideration or discussion of other indicia of an independent business.
Id., 55.
14
Moreover, as the Massachusetts Supreme Judicial Court has pointed
out, an overly ‘‘literal application’’ of part C requiring proof that the putative
employee performs work for other parties ‘‘would deny independent contrac-
tor status to almost any worker whose trade, occupation, profession or
business, although established and operated independently, remains eco-
nomically viable solely because of its contractual relationships with other
entities, and would render superfluous any examination of criteria set forth
in part (a) (freedom from control over performance of services) or part (b)
(performance of services outside the usual course or places of business)
of the ABC test.’’ Athol Daily News v. Board of Review of the Division of
Employment & Training, supra, 439 Mass. 180.
15
In both its brief and during oral argument before this court, the plaintiff
requested that we, in essence, grant appellate relief that would direct the
board to render judgment in its favor on the basis of the undisputed facts
contained within the record. Given the fact sensitive nature of the part C
determination, it appears that more than one reasonable conclusion may
be derived from the facts of this case with respect to Draco, Kehoe, and
Patrick, particularly given the lack of evidence in the record with respect
to business development efforts undertaken by Kehoe and Patrick as com-
pared to Draco. See Toll Bros., Inc. v. Inland Wetlands Commission, 101
Conn. App. 597, 602–603, 922 A.2d 268 (2007) (remand to agency for further
proceedings is appropriate remedy when court ‘‘not convinced as a matter
of law’’ when there is more than one ‘‘conclusion that [it] reasonably could
reach’’). Accordingly, remand to the board for further proceedings in accor-
dance with our explanation of part C is necessary in order to avoid invading
the board’s fact-finding province under the act; should the board deem an
additional remand to the referee appropriate or necessary, it remains free
to order that remedy. See General Statutes § 31-249.