DocketNumber: No. 11-P-1455
Citation Numbers: 82 Mass. App. Ct. 701
Judges: Graham
Filed Date: 10/25/2012
Status: Precedential
Modified Date: 6/25/2022
This is an appeal by the claimant, Gregory Den Herder, from a judgment of the Boston Municipal Court summarily affirming a decision of the Division of Unemployment
Background. The relevant facts are not in dispute. The claimant was one of two partners in Helvetica Group Investments, LLC (HGI).
The claimant was the managing partner of HGLP and oversaw operations of the restaurant. HGLP reported paying wages to the claimant of $15,384 in the fourth quarter of 2009 and $12,307.68 in the first quarter of 2010. The claimant was laid off on March 1, 2010, and filed for unemployment benefits on July 4, 2010. Initially, he was awarded unemployment benefits; however, on September 1, 2010, the division reviewed his claim and determined him to be ineligible to receive benefits because he was part owner of the restaurant. The claimant filed a timely appeal of that decision.
After hearing, a review examiner determined that the claimant, as a voting partner in the employing partnership, could not simultaneously be its employee and, therefore, did not earn qualifying wages as defined in G. L. c. 151A, § l(/c). The review examiner concluded that, because the claimant had no other income during the base period, he failed to earn the minimum amount of base period wages required under G. L. c. 151 A, § 24, and was “not monetarily eligible” for benefits.
Discussion. “The agency’s decision may only be set aside if the court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law.” Coverall N. America, Inc. v. Commissioner of the Div. of Unemployment Assistance, 447 Mass. 852, 857 (2006). We “ ‘give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.’ G. L. c. 30A, § 14(7).” Ibid. The relevant question here is “whether the board applied correct legal principles in reaching its decision.” Guarino v. Director of the Div. of Employment Sec., 393 Mass. 89, 92 (1984).
“An employer is required to contribute to the unemployment compensation fund under G. L. c. 151A if an employment relationship exists between the ‘employing unit’ and the individual providing services to the employer” (footnote omitted). Coverall N. America, Inc., 447 Mass. at 856. An “[e]mploying unit” is defined under G. L. c. 151 A, § 1(f), to include “any partnership” that has “one or more individuals performing services for . . . it within this commonwealth.” In turn, under G. L. c. 151 A, § 1(A), “[ejmployment” is defined as “service . . . performed for wages or under any contract, oral or written, express or implied, by an employee for his employer.”
Under an analogous statutory scheme, the worker’s compensation statute, G. L. c. 152, working partners are not employees. See Ryder’s Case, 341 Mass. 661, 665 (1961). In that case, the court reasoned that, because a partnership is “the aggregate of the individuals making it up, a partner-employee would also be an employer.” See also 4 Larson, Workmen’s Compensation Law, at 76-1 (2004) (“Members of a partnership . . . cannot be employees . . . since there is no separate business entity that can be called the employer”).
The cases cited by the claimant to the contrary are distinguishable because they all concerned corporations as employing
Finally, we find no merit to the claimant’s argument that he should have been treated as an employee of the restaurant because it provided him with W-2 forms. See Boston Bicycle Couriers, Inc. v. Deputy Director of the Div. of Employment & Training, 56 Mass. App. Ct. 473, 484 (2002) (mere fact that employers labeled workers as independent contractors did not transform them from being employees).
Judgment affirmed.
The claimant testified that he had a thirty percent ownership interest in HGI, and Igor Blatnik had a seventy percent ownership interest. Blatnik contributed most of the funds to HGI, and was entitled to one hundred percent of the profit, loss, and capital of HGI until the repayment of his investment.
Both HGI and HGLP filed tax returns as partnerships.
To be eligible for unemployment benefits, an individual must have been paid wages during the base period amounting to at least thirty times the weekly benefit rate and totaling at least $3,300. G. L. c. 151A, §§ 1, 24(a). Under the statute, “[w]ages” are “every form of remuneration of an employee