CPR Plus, LLC v. Division of Employment Security ( 2019 )

In the
Missouri Court of Appeals
Western District

CPR PLUS, LLC, 
 WD82146
Appellant,  OPINION FILED:
v. 
 APRIL 16, 2019
DIVISION OF EMPLOYMENT 
SECURITY, 

Respondent. 

Appeal from Labor and Industrial Relations Commission
Before Special Division: Edward R. Ardini, Jr., Presiding Judge, Anthony Rex Gabbert,
Judge, Kelly C. Broniec, Special Judge
CPR Plus, LLC (“CPR Plus”) appeals from three consolidated decisions by the Missouri
Labor and Industrial Relations Commission (“Commission”), which found that instructors
associated with CPR Plus are employees rather than independent contractors. On appeal, CPR
Plus contends the Commission erred in deciding affiliated instructors are employees of CPR Plus,
arguing there is no competent and substantial evidence in the record as a whole supporting this
determination. We affirm.
Factual and Procedural History1
Stacy Ann Graff-Baehmann was in business twenty years as a sole proprietor before
creating CPR Plus in January 2015. CPR Plus is a business providing instructors to conduct
training classes in CPR, and other treatment related to emergency situations, to various clients. All
instructors are required to be certified to teach CPR Plus classes. CPR Plus is an American Heart
Association (AHA) training center which certifies CPR Plus to provide AHA training. The AHA
requires all AHA-certified instructors to be aligned with an AHA training center in the instructor’s
region. Each AHA training center has the responsibility of ensuring that all the AHA-certified
instructors aligned with that training center (“member instructors”) comply with the AHA
guidelines in providing CPR instruction. Member instructors are not required to provide
instruction services for the training center. In the case of CPR Plus, not all member instructors
who have been AHA-certified by CPR Plus contract with CPR Plus to provide services for CPR
Plus. All instructors at issue in the Commission’s investigation into employee versus independent
contractor status, however, contract (or contracted) with CPR Plus to provide services for CPR
Plus.2 Two thirds of CPR Plus’s business is offering classes; CPR Plus also sells first aid supplies.
A client or customer contacts CPR Plus requesting a CPR class be held on a specific date.
A certified instructor teaches the class, and then has participants fill out required AHA forms. The
forms are used to process cards showing the attendee successfully completed the CPR class. CPR
1
We include the Findings of Fact made by the Commission as we are to accept the Commission’s findings
of fact as conclusive so long as they are ‘supported by competent and substantial evidence’ and in the absence of
fraud. § 288.210. CPR Plus makes no claim of fraud, or that the Commission’s Findings of Fact are not supported
by competent and substantial evidence; CPR Plus’s claim is that the Commission’s conclusion, that CPR Plus
instructors are employees rather than independent contractors, is not supported by sufficient competent evidence in
the record as a whole.
2
Unless specifically designated as “member instructor,” “instructor” herein references an individual
contracting with CPR Plus to provide services for CPR Plus.
2
Plus, as a training center, is authorized by the AHA to collect the paperwork and process the cards
upon submission of the appropriate forms. CPR Plus distributes the cards to class attendees at a
later date.
CPR Plus began operating in Missouri on January 13, 2015. Graff-Baehmann operates
CPR Plus from her home located in Chesterfield, Missouri. Graff-Baehmann finds individuals
interested in being instructors by networking and visiting internet job sites. She typically looks
for individuals with a related background. Some of CPR Plus’s instructors are already certified to
teach the classes prior to working for CPR Plus. If they are not, CPR Plus offers the necessary
training and books. The instructors purchase the materials and books needed to the complete the
training to be certified. As an authorized training center, CPR Plus issues the necessary
certification to those individuals.
CPR Plus and instructors negotiate an hourly rate of pay depending on the expertise of the
individual. CPR Plus requires the instructor to sign a written agreement provided by CPR Plus.
CPR Plus places dates, times, and locations of classes on a software program called, “When to
Work.” Any instructor can sign up to teach a class, or they can ask CPR Plus to schedule them for
classes for a specific number of hours they desire to work. The instructors with the most
experience are designated as lead instructors.
All classes are conducted at the client location which might be a medical center, nursing
home, or educational facility. No services are provided at Graff-Baehmann’s home. The client
sometimes has the equipment necessary for the class; other times, CPR Plus provides the instructor
with access to a storage locker that houses equipment. The instructors are also allowed to provide
their own equipment. CPR Plus pays the instructors to clean equipment they use from CPR Plus
storage. They are paid an hourly rate for the amount of time they spend cleaning, disinfecting, and
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returning the equipment to the storage locker. The instructors are reimbursed for parking fees, if
applicable, at various client locations where the classes are held.
CPR Plus supplies a spreadsheet for the instructors to fill out their hours worked. CPR
Plus issues paychecks on the fifteenth and last day of the month. No taxes are withheld and an
IRS form 1099 is given to instructors. CPR Plus does not provide insurance for instructors. The
CPR Plus/instructor contract states that instructors are required to provide automobile insurance
for the automobiles they use to travel to the class sites. CPR Plus provides no reimbursement for
gasoline or training materials needed to maintain a valid certification. The instructors are not
required to wear uniforms.
Each class requires a ratio of nine attendees per instructor to satisfy the AHA guidelines.
If fewer attendees than planned participate, an extra instructor is told to leave, and they are paid
only for the hours spent setting up the class. The time spent setting up the class is compensated;
the commute time is not compensated.
Graff-Baehmann testified that most instructors have jobs as paramedics, nurses, or other
health related jobs. There was no evidence before the Commission that CPR Plus instructors hold
themselves out to the public as CPR instructors. The instructors are not allowed to have helpers
when teaching CPR Plus classes. The instructors have a continuing relationship with CPR Plus,
as they work on a reoccurring basis depending on the number of classes scheduled. Instructors
decide to work as much or as little as they choose depending on the number of classes available.
The CPR Plus/instructor contract contains a non-compete provision. The instructor is
prohibited from any effort to obtain business with clients of CPR Plus for a two-year period. The
contract also contains a non-disclosure of trade secrets provision.
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Graff-Baehmann periodically monitors instructors when they teach classes. The AHA
requires certain basic items be covered for AHA certification, but there are optional exercises CPR
Plus’s instructors also cover. CPR Plus clients have indicated they appreciate the extra content in
CPR Plus’s classes, and instructors are advised to include the optional exercises in the classes
offered by CPR Plus. Graff-Baehmann testified that she is required to periodically monitor
certified instructors because CPR Plus is a training center for the AHA. An instructor, found
credible by the Commission, testified that she was supervised and advised on how she was
supposed to teach and what was to be covered in class, and that she was periodically monitored by
Graff-Baehmann in the classroom.
Once an instructor is scheduled to teach a class, if the instructor is unable to teach the class,
he or she is expected to arrange for another certified instructor to take his/her place. Otherwise,
he/she is expected to work. CPR Plus must know that any replacement is suitable or certified, in
order to satisfy the AHA requirements.
CPR Plus, or an instructor, may terminate the contract with thirty days written notice.
However, the contract provides that CPR Plus can terminate the agreement with five days’ notice
if the instructor fails to perform the teaching in a “businesslike manner such as unprofessional
attire, tardiness, failure to prepare documentation required; and failure to submit timely requests
for compensation and reimbursement for parking expenses …”
On January 4, 2016, the Division of Employment Security (“Division”) received a blocked
claim for unemployment benefits from Julie Deaton, a former instructor for CPR Plus. The
Division conducted an investigation, reviewed questionnaires submitted by Deaton and CPR Plus,
as well as worker information provided by CPR Plus, and determined that, effective January 13,
2015, the instructors for CPR Plus were employees. The Division also determined that, effective
5
October 1, 2014, the instructors of Graff-Baehmann (as sole proprietor of CPR Plus) were
employees. The Division found that common ownership, management, and control existed
between Graff-Baehmann as sole proprietor and CPR Plus, such that CPR Plus stood in the position
of Graff-Baehmann in all respects, including liability for current or delinquent contributions. On
January 25, 2016, the Division mailed a determination of employment to CPR Plus.
The Division received CPR Plus’s appeal of the determination on February 4, 2016. On
June 8, 2016, CPR Plus provided the Division with a copy of the independent contractor agreement
that each instructor is required to sign. The Division reviewed the agreement and found that the
original determination of employment status was supported by the agreement. The Division found
no cause for reconsideration and referred the matter to the Appeals Tribunal.
The Appeals Tribunal held a hearing on August 24, 2016. On September 26, 2016, the
Appeals Tribunal issued its findings of facts and conclusions of law, affirming the Commission’s
determination that CPR Plus instructors are employees of CPR Plus.
CPR Plus submitted an Application for Review to the Commission, which was received on
October 3, 2016. On September 7, 2018, the Commission issued its decision, affirming and
adopting the decision of the Appeals Tribunal. This appeal follows.
Standard of Review
Appellate review of the Commission’s decision is governed by Section 288.210, RSMo
2000. Rush v. Kimco Corp., 338 S.W.3d 407, 410 (Mo. App. 2011). We may not disrupt the
decision “unless the Commission acted without or in excess of its powers, the decision was
procured by fraud, the decision was not supported by facts, or the decision was not supported by
sufficient competent evidence” based on the whole record. Id. While no deference is given the
Commission regarding questions of law, the Commission is entitled to deference on determinations
6
of witness credibility. White v. St. Louis Teachers Union, Div. of Employment Sec., 217 S.W.3d
382, 388 (Mo. App. 2007).
Point on Appeal
CPR Plus contends the Commission erred in deciding that affiliated instructors are
employees of CPR Plus, rather than independent contractors, arguing there is no competent and
substantial evidence in the record supporting this determination.
Section 288.034.1, RSMo Cum. Supp. 2018, defines “employment,” in part, as “service …
performed for wages or under any contract of hire, written or oral, express or implied[.]” Section
288.034.5 provides:
Service performed by an individual for remuneration shall be deemed to be
employment subject to this law unless it is shown to the satisfaction of the division
that such services were performed by an independent contractor. In determining
the existence of the independent contractor relationship, the common law of agency
right to control shall be applied. The common law of agency right to control test
shall include but not be limited to: if the alleged employer retains the right to
control the manner and means by which the results are to be accomplished, the
individual who performs the service is an employee. If only the results are
controlled, the individual performing the service is an independent contractor.
“[O]nce it is shown that an individual receives remuneration, the presumption of an employer-
employee relationship is established and the ‘burden of proof shifts to the employer to show that,
under the common law right to control test, the worker is an independent contractor.”’ Gateway
Taxi Management v. Division of Employment Security, 461 S.W.3d 830, 833 (Mo. banc 2015). The
Division uses 8 CSR 10-4.150(1) to interpret Section 288.034.5, applying the common law rules
applicable in determining the employer-employee relationship under 26 U.S.C., Section 3306(i).
Id. at 834. Further, in interpreting Section 288.034.5, the Division considers case law, Internal
Revenue Service regulations and letter rulings, including the ruling that creates twenty factors for
determining employment status. Id.
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These factors are: (1) instructions; (2) training; (3) integration; (4) services
rendered personally; (5) hiring, supervising, and paying assistants; (6) continuing
relationship; (7) set hours of work; (8) full time required; (9) doing work on
employer's premises; (10) order or sequence set; (11) oral or written reports; (12)
payment by hour, week, month; (13) payment of business and/or traveling
expenses; (14) furnishing of tools and materials; (15) significant investment; (16)
realization of profit or loss; (17) working for more than one firm at a time; (18)
making service available to general public; (19) right to discharge; and (20)
worker's right to terminate.
Id. Our Missouri Supreme Court has approved these twenty factors for consideration in
determining whether an entity is an employee or independent contractor. Id.
CPR Plus does not contend that the Commission acted without or in excess of its powers,
or that its decision was procured by fraud; consequently, our review is confined to whether there
is substantial evidence to support the Commission’s determination that the instructors are CPR
Plus employees. Id. “The analysis as to whether there is sufficient control to characterize a
relationship as employer/employee or independent contractor is factually intensive.” Id. at 834-
835. In applying the above-listed twenty factors, the Commission exhaustively examined and
applied the facts to each factor, concluding the following evidence indicative of employee-status:
1) Instructions: CPR Plus posted the date, time, and place of each class when contacted by
clients and relayed this information to instructors through a computer program maintained by CPR
Plus. Any instructor who signed up could not change the date, time, or location; 2) Training: CPR
Plus’s business provided classes that satisfied AHA guidelines, and CPR Plus required instructors
of CPR Plus to teach this information as well as optional information, supervising the instructors
to ensure the material was covered in a manner acceptable to CPR Plus. Optional exercises were
included because it made CPR Plus’s business more attractive to potential clients; 3) Integration:
The instructors were an integral part of CPR Plus’s business as the business primarily involved
providing instructors to teach AHA certified classes. The business could not continue without the
8
services provided by instructors. The success of CPR Plus depended on the quality of the
instruction and content, which necessarily meant control or the right to exercise control to
accomplish this end; 4) Services Rendered Personally: Instructors were expected to personally
perform their services, and instructors were expected to arrange for an appropriate substitute in the
event they were unable to teach a class; 5) Hiring, Supervising, and Paying Assistants: The
instructors could not hire assistants or helpers to teach CPR Plus’s classes; 6) Continuing
Relationship: There was a continuing relationship with the instructors, with the frequency or need
for the services depending on the number of classes requested; 7) Order or Sequence Set: The
guidelines of the AHA dictated that certain video and other information be covered at each class,
with CPR Plus required to ensure instructors covered that material. CPR Plus required instructors
to cover optional exercises; 8) Oral or Written Reports: Instructors were required to submit a
spreadsheet to obtain paychecks, and complete surveys so that AHA certificates could be issued to
class attendees; 9) Payment by Hour, Week, Month: CPR Plus paid the instructors an hourly rate
of pay. The paychecks were issued on the 15th and last day of each month; 10) Payment of Business
and/or Traveling Expenses: CPR Plus paid for parking when there were fees or meters associated
with instructors teaching at some client locations; 11) Furnishing Tools and Materials: CPR Plus
provided the mannequins and other equipment used to teach classes to any instructor who wished
to get the equipment out of the storage locker or unit. The instructor could also provide their own
equipment or use equipment provided by the client; 12) Significant Investment: There was no
evidence that instructors invested in facilities; 13) Realization of Profit or Loss: There was no
evidence that the instructor could realize a profit or suffer a loss; 14) Making Service Available to
General Public: There was no evidence that any instructor made their services available to the
general public on a regular basis. The instructors had to sign a written contract with a non-compete
9
clause and trade secrets provision; 15) Right to Discharge: CPR Plus’s contract provided that CPR
Plus could terminate the instructor with five days’ notice for cause, with “cause” including
improper attire, tardiness, and failure to submit paperwork.
Upon reviewing the twenty factors, the Commission determined that the above fifteen
support an employer/employee relationship, and the remaining five support an independent
contractor relationship. The Commission concluded that CPR Plus is an employer of the
instructors because CPR Plus has the right to control the manner and means of performance of the
instructors.
“There is no magic formula for determining how many factors must weigh in favor of an
employee relationship.” Id. at 835 (internal quotation marks and citation omitted). “The standard
of review does not instruct this Court to reweigh the factors but, rather, determine whether there
was substantial evidence to support the [Commission’s] decision.” Id. We, therefore, will not
embark on a detailed reanalysis of each factor but look to the whole record in reviewing the
Commission’s final conclusions. In the final analysis, the common law of agency right to control
test determines the existence of an independent contractor relationship: “If the alleged employer
retains the right to control the manner and means by which the results are to be accomplished, the
individual who performs the service is an employee. If only the results are controlled, the
individual performing the service is an independent contractor.” § 288.034.5.
The record supports the Commission’s conclusion that CPR Plus maintains control over
the manner and means of instructor performance by ensuring instructors teach more than what is
required by the AHA, supervising classes to ensure compliance, and correcting instructors not
following CPR Plus’s preferred methods. CPR Plus maintains control over the actions of
instructors by retaining the right to fire anyone not abiding by CPR Plus’s policy on attire,
10
timeliness, or paperwork filing. Although CPR Plus insists that it does not control the manner and
means of instructors’ work because clients, and not CPR Plus, dictate the time, date, and location
of the performance of the instructors’ services, we found this same argument unavailing in
C.L.E.A.N., LLC. v. Division of Employment Sec., 405 S.W.3d 613, 621 (Mo. App. 2013). In
C.L.E.A.N., we noted that the cleaning business informed its cleaning workers as to the customers’
schedule preference and that “while the when and where aspects of a worker’s cleaning assignment
are determined by the client’s preferences, C.L.E.A.N. maintains a certain degree of control over
its workers’ scheduling.” Id. Much of the rationale we used in C.L.E.A.N. (concluding there was
competent and substantial evidence to support a finding of employee status) is applicable here as
the legal and factual issues are similar.
Although CPR Plus also contends that instructors control the manner and means of
instruction because AHA guidelines and client requirements dictate instruction materials, the non-
disclosure of trade secrets provision in CPR Plus’s contract with instructors suggests that the
instruction also includes confidential CPR Plus methods. The trade secrets provision states that
CPR Plus “has substantial knowledge and experience relating to its business and customer list and
that Business has expended substantial sums of money in developing valuable proprietary
information and business methods.” The provision requires instructors to not disclose any
confidential or proprietary information of CPR Plus, or any forms, guidelines, or other
documentation developed by CPR Plus, “except as required for teaching jobs [instructor] chooses
to perform.” This supports the Commission’s conclusion that, aside from AHA’s requirements,
CPR Plus controls the manner and means of instruction by requiring performance under CPR
Plus’s established business methods. E.P.M. Inc. v. Buckman, 300 S.W.3d 510, 517 (Mo. App.
2009). There is no suggestion in the record that instructors are involved in any part of CPR Plus’s
11
business except teaching classes. Hence, if only AHA guidelines and client requirements dictate
how and what instructors teach, there would be no need for a trade secrets provision prohibiting
dissemination of CPR Plus’s “business methods.”
The contract CPR Plus requires instructors to sign states that, once the instructor no longer
works for CPR Plus, the instructor cannot (for two years) solicit, contact, or make any effort to
obtain business from the customers and clients of CPR Plus. If an instructor does bring something
personally unique to a class and a client is impressed with a particular instructor and desires that
same instructor for a future class, the client can only obtain that instructor if the instructor still
works for CPR Plus. CPR Plus, therefore, controls the manner and means the client’s classes are
taught by restricting client access to specific instructors. Bargfrede v. American Income Life Ins.
Co., 21 S.W.3d 157, 164 (Mo. App. 2000) (“Although covenants not to compete are not implicitly
void and unenforceable against independent contractors, [] that type of control with other facts is
some evidence of a master-servant relationship.”) Although many, if not most, CPR Plus
instructors maintained outside employment, there was no evidence that any instructor conducted
CPR classes for outside employers.
Conclusion
We find the Commission’s analysis of the instructive factors used in determining
employment status, and the Commission’s ultimate conclusion that CPR Plus controlled both the
results of instructors’ work and the manner and means the results were to be accomplished,
supported by competent and substantial evidence on the whole record.
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The decision of the Commission is affirmed.
Anthony Rex Gabbert, Judge
All concur.
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