State ex rel. Ugicom Ents., Inc. v. Morrison

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ugicom Ents., Inc. v. Morrison, Slip Opinion No. 2022-Ohio-1689.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-1689THE STATE EX REL. UGICOM ENTERPRISES, INC., APPELLANT, v. MORRISON,
ADMR., BUREAU OF WORKERS’ COMPENSATION, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ugicom Ents., Inc. v. Morrison, Slip Opinion No.
2022-Ohio-1689.]
Workers’ compensation—Independent contractors and employees—Right to
control manner or means of work—Some-evidence standard—Some
evidence supported determination of Bureau of Workers’ Compensation
that workers were company’s employees rather than independent
contractors—Court of appeals’ judgment affirmed.
(No. 2021-0674—Submitted January 25, 2022—Decided May 24, 2022.)
APPEAL from the Court of Appeals for Franklin County,
No. 17AP-895, 2021-Ohio-1269.
__________________
Per Curiam.
{¶ 1} The question presented in this appeal is whether some evidence
supported the determination of appellee, Sarah Morrison, administrator of the
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Bureau of Workers’ Compensation, that appellant, Ugicom Enterprises, Inc., an
underground-cable-installation provider, had misclassified its workers for workers’
compensation purposes as independent contractors rather than as employees. The
Tenth District Court of Appeals determined that some evidence supported the
bureau’s determination that the workers were Ugicom’s employees and denied
Ugicom’s request for a writ of mandamus ordering vacatur of the bureau’s decision.
We affirm.
I. BACKGROUND
A. Ugicom I
{¶ 2} In 2009, the bureau audited Ugicom to ensure that Ugicom had paid
the correct amount of workers’ compensation premiums for the period of
January 1, 2004, through June 30, 2009.1 Mary Jo Eyink, an auditor with the
bureau, conducted the audit. Based on her findings, Eyink determined that Ugicom
had exercised “too much control” over workers to whom it had issued Internal
Revenue Service (“IRS”) Forms 1099, leading the bureau to designate those
workers as Ugicom’s employees for workers’ compensation purposes and resulting
in a $346,817.55 invoice to Ugicom for unpaid premiums.2
{¶ 3} After unsuccessfully challenging those findings through the bureau’s
administrative process, Ugicom filed an original action in the Tenth District Court
of Appeals, seeking a writ of mandamus ordering vacatur of the bureau’s decision
that the workers were Ugicom’s employees. See State ex rel. Ugicom Ents., Inc. v.
Buehrer, 10th Dist. Franklin No. 13AP-527, 2014-Ohio-4942, ¶ 1, 7-9 (“Ugicom
I”). The court of appeals granted the writ on the ground that the bureau had erred
1. The bureau later extended the audit period through June 30, 2012, and then again through June
30, 2015. But the bureau stated that its decision concerned only Ugicom’s protest against the
findings for the initial audit period.
2. “[A] Form 1099 is used by independent contractors to report income to the federal government.”
Hopkins v. Duckett, D.N.J. No. 02-5589, 2006 WL 3373784 (Nov. 21, 2006), fn. 2.
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in relying on the 20-factor test under R.C. 4123.01(A)(1)(c) for determining
whether a “person who performs labor or services pursuant to a construction
contract” is an employee for workers’ compensation purposes. Ugicom I at ¶ 14,
28. The court of appeals explained that the test was inapplicable because this “case
does not concern a construction contract, as that term is defined in R.C.
4123.79(C)(2).” Id. at ¶ 14. The court of appeals directed the bureau to issue a
new order addressing Ugicom’s challenge. Id. at ¶ 28.
B. Ugicom’s operations
{¶ 4} In response to Ugicom I, the bureau set the matter for a hearing before
an adjudicating committee to assess Ugicom’s operations under the common-law
right-to-control test for determining whether a worker is an employee or an
independent contractor. See R.C. 4123.291(A) (empowering “[a]n adjudicating
committee appointed by the administrator of workers’ compensation to hear any
matter specified” within the statute). Both Eyink and Fred Kibuuka, Ugicom’s vice
president, testified at the hearing. Eyink elaborated on her audit findings, and
Kibuuka described Ugicom’s operations. The audit findings and hearing testimony
reflect the following facts about Ugicom’s operations.
{¶ 5} Ugicom performs underground-cable installations, mainly in
residential areas, as a subcontractor for Time Warner Cable Company (“TWC”).
TWC uses its website to dispatch jobs to Ugicom, which Ugicom then retrieves
through its web-based system and assigns to cable installers. An installer logs on
to the system each morning to obtain the job’s details and logs back on in the
evening to confirm completion of the job, which generates an invoice from Ugicom
to TWC. Ugicom does not require the installer to accept the job assignment. And
Ugicom determines the amount that it will pay for a job; the installer does not
submit a bid.
{¶ 6} TWC provides a badge to each installer who passes a TWC-
coordinated drug test and background check. The badge has an identification
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number that is registered with TWC’s dispatch department. After receiving
clearance from TWC, the installer may begin working for Ugicom. Photographs in
the record before us show a work van with a sign on its door that says “Ugicom
Enterprises, Inc., Contractor for Time Warner Cable” and a vest worn by an
installer that says “Contractor for Time Warner Cable.”
{¶ 7} Ugicom requires the installers to sign a one-year independent-
contractor agreement and to provide their own liability insurance. The contract
contains a noncompete clause that forbids an installer from providing similar
services to a competitor of Ugicom while the contract is in force. Either party may
terminate the contract with 60 days’ written notice. The contract requires the
installer to respond to service requests within two hours.
{¶ 8} The installers furnish their own hand tools for the jobs (generally, a
shovel and a spade) and provide their own transportation, cell phones, and laptop
computers. The cable that the installers bury into the ground is custom to TWC, so
the installers must obtain it from TWC.
{¶ 9} The installers are permitted to work any day or time, provided they
obtain the customer’s consent to be on the customer’s property, and they typically
complete between six and ten jobs per day. According to Eyink, “[i]t’s just a matter
of [the installers’] stand[ing] on a spade and lifting up some dirt and going down
and lifting up some [more] dirt.” Kibuuka noted, however, that the installers also
connect the cable to the outside of the home and test its connection.
{¶ 10} The installers are paid by the job and earn on average between
$50,000 and $60,000 per year, although some installers make as much as $90,000
per year. According to Eyink’s audit notes, Ugicom pays the installers once per
month by direct deposit; but at the hearing, Eyink testified that the installers are
paid weekly. Taxes are not withheld from the payments to the installers, and no
benefits are provided, although sometimes Ugicom will deduct from a payment the
costs attributable to damage caused by the installer.
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{¶ 11} In addition to the installers, Ugicom uses the services of Paul Lule,
who performs quality-control checks on 20 percent of the jobs, verifying that the
lines were buried correctly. By comparing the income reflected on Lule’s Form
1099 for a particular year with that reported to the IRS for the same year, Eyink
determined that Lule’s sole source of income for the year had been Ugicom.
C. The bureau’s administrative determinations
{¶ 12} Relying principally on the right-to-control test espoused in Gillum v.
Indus. Comm., 141 Ohio St. 373, 48 N.E.2d 234 (1943), and Bostic v. Connor, 37
Ohio St.3d 144, 524 N.E.2d 881 (1988), the bureau’s adjudicating committee
determined that Ugicom had misclassified the installers and Lule as independent
contractors. Ugicom then sought review by the administrator’s designee. See R.C.
4123.291(B) (“An employer who is adversely affected by a decision of an
adjudicating committee appointed by the administrator may appeal the decision of
the committee to the administrator or the administrator’s designee”). Ugicom did
not present any new testimony to the administrator’s designee, relying instead on
the arguments of its counsel. The designee affirmed the adjudicating committee’s
decision, adopting its statement of facts and legal rationale and “find[ing] that,
under the common law test of Gillum and Bostic, Ugicom exercises control over
the workers[,] and * * * the Bureau’s auditor’s conclusion that the workers are
employees [was] correct based on these facts and under the law.”
D. Ugicom II
{¶ 13} Ugicom then filed an original action in the court of appeals,
requesting a writ of mandamus vacating the bureau’s decision. 2021-Ohio-1269,
¶ 1 (“Ugicom II”). The magistrate recommended denial of the writ, concluding that
the bureau did not abuse its discretion in determining that the workers were
employees. Id. at ¶ 83. The court of appeals overruled Ugicom’s objections to the
magistrate’s decision and adopted it as its own. Id. at ¶ 27. This appeal followed.
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II. ANALYSIS
{¶ 14} To establish its entitlement to a writ of mandamus, Ugicom must
prove (1) a clear legal right to the relief requested, (2) a clear duty on the part of
the bureau to provide it, and (3) the lack of an adequate legal remedy in the ordinary
course of the law. See State ex rel. T.S. Trim Industries, Inc. v. Indus. Comm., ___
Ohio St.3d ___, 2021-Ohio-2709, ___ N.E.3d ___, ¶ 14. “The [bureau] is the
exclusive finder of fact in workers’ compensation matters; a court’s role in
adjudicating a mandamus complaint is to determine whether the [bureau] abused
its discretion by entering an order that is not based on some evidence in the record.”
State ex rel. Digiacinto v. Indus. Comm., 159 Ohio St.3d 346, 2020-Ohio-707, 150
N.E.3d 933, ¶ 13.
{¶ 15} “Because an independent contractor is not an employee for purposes
of workers’ compensation law, the resolution of [the question whether the worker
is actually an employee] determines the employer’s obligation to contribute to * * *
the State Insurance Fund.” Bostic, 37 Ohio St.3d at 145, 524 N.E.2d 881. The
factfinder ordinarily decides this question, and it does so by considering “who had
the right to control the manner or means of doing the work.” Id. at 145-146. This
is “the key factual determination.” Id. at 146.
{¶ 16} The right-to-control test is not marked by a bright-line rule but rather
a set of nonexhaustive factors. See Gillum, 141 Ohio St. at 374-375, 48 N.E.2d
234, quoting 27 American Jurisprudence, Indicia of Relationship, Section 5, at 485
(“ ‘there is no absolute rule for determining whether one is an independent
contractor or an employee’ ”). In Gillum, we set forth the following factors that the
decision maker should consider:
“[T]he existence of a contract for the performance by a person of a
certain piece or kind of work at a fixed price, the independent nature
of his business or his distinct calling, his employment of assistants
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with the right to supervise their activities, his obligation to furnish
necessary tools, supplies, and materials, his right to control the
progress of the work except as to final results, the time for which the
workman is employed, the method of payment, whether by time or
by job, and whether the work is part of the regular business of the
employer.”
Id. at 375, quoting 27 American Jurisprudence, Section 5, at 485. See also Bostic
at 146 (explaining that the decision maker should consider “such indicia as who
controls the details and quality of the work; who controls the hours worked; who
selects the materials, tools and personnel used; who selects the routes travelled; the
length of employment; the type of business; the method of payment; and any
pertinent agreements or contracts”).
A. The installers
1. Whether the work is part of the regular business of the employer
{¶ 17} The bureau first determined that the cable-installation work rendered
by the installers was part of Ugicom’s regular business. Notably, Ugicom has not
contested that determination. But even if it had, the audit findings established that
Ugicom was engaged in the business of installing underground cable for TWC and
that the installers performed that work. Some evidence supported the bureau’s
determination under this factor.
2. Whether the installers are engaged in an independent business
{¶ 18} “[O]f prime importance,” Gillum at 377, is whether the installers
were engaged in an independent business. In determining that the installers were
not independent of Ugicom, the bureau pointed to the installers’ public image when
working. The bureau cited Kibuuka’s testimony concerning the badges that the
installers wore at the jobsites. An installer wore the badge, Kibuuka explained,
because if a problem arose at a jobsite, law enforcement could confirm through
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TWC’s dispatch department that the installer “work[ed] for Ugicom.” The bureau
further pointed to evidence establishing that an installer had posted a sign on his
vehicle stating “Ugicom Enterprises, Inc., Contractor for Time Warner Cable.”
{¶ 19} In response, Ugicom cites evidence establishing that it was TWC,
not Ugicom, that required the installers to wear the badges, that the installers wore
reflective vests bearing TWC’s name, and that the bureau’s Form U-3S provides
that coverage is elective for a limited liability company acting as a sole proprietor,
which apparently is the business structure adopted by some of the installers. But
even if those points tend to detract from the bureau’s decision, there is at least some
evidence supporting its finding that the installers were not independent of Ugicom.
See State ex rel. Packaging Corp. of Am. v. Indus. Comm., 139 Ohio St.3d 591,
2014-Ohio-2871, 13 N.E.3d 1163, ¶ 26 (“it is not an abuse of discretion for the
commission to rely on evidence that is contradicted by equally persuasive
evidence”).
3. Method of payment
{¶ 20} The bureau determined that the method by which Ugicom paid the
installers further indicated that the installers were not independent contractors. The
bureau focused on the installers’ prospect of profits or losses. When asked how the
installers were paid, Kibuuka testified that he would “make up” an amount to pay
the installers for each type of service: “So, for instance if Time Warner pays me a
hundred dollars to drill a sidewalk, then I will pay my contractor $80 to do that
same sidewalk and Ugicom will keep the $20, something like that.” In other words,
Ugicom’s rate of pay was nonnegotiable, meaning that Ugicom foreclosed the
installers from submitting bids. The bureau reasoned that the installers were
distinct from independent contractors in the construction industry who “maintain[]
their own separate business [and] take[] into consideration all of their expenses
when pricing work in order to make a profit and [are] at risk of a loss.”
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{¶ 21} Ugicom advances several arguments in response. First, it correctly
argues that the bureau erred in concluding that the installers’ receipt of piece-rate
compensation (essentially, payment per job rather than payment per hour) was
evidence of an employment relationship. The bureau reached this conclusion
because aspects of piece-rate compensation are covered by regulations adopted
under the Fair Labor Standards Act, 29 U.S.C. 201 et seq. See 29 C.F.R. 778.109
and 778.111. The regulations cited by the bureau do not, however, explicitly
account for the common-law right-to-control test. Indeed, as the Eleventh Circuit
Court of Appeals concluded in Garcia-Celestino v. Ruiz Harvesting, Inc., 898 F.3d
1110, 1122 (11th Cir.2018), the federal act and the common-law right-to-control
test involve different standards for identifying an employment relationship.
{¶ 22} Ugicom further faults the bureau’s failure to apply the law-of-the-
case doctrine, see Nolan v. Nolan, 11 Ohio St.3d 1, 3-4, 462 N.E.2d 410 (1984),
arguing that both the bureau and the court of appeals in Ugicom II, 2014-Ohio-
4942, at ¶ 25, failed to honor the Ugicom I court’s statement that payment per job
is indicative of an independent-contractor relationship. But we need not reach
Ugicom’s law-of-the-case argument, because the bureau’s reliance on the
regulations was otherwise erroneous.
{¶ 23} Ugicom also argues that the installers faced opportunities for profits
or losses and had to consider the cost of traveling to a job, the length of time
required to complete the job, and the job’s complexity. And Ugicom correctly
points out that the installers’ receipt of Forms 1099 rather than Forms W-2 supports
a finding that they were independent contractors. See Northeast Ohio College of
Massotherapy v. Burek, 144 Ohio App.3d 196, 203-204, 759 N.E.2d 869 (7th
Dist.2001) (“The use of [Forms 1099] typically suggests that the parties were not
acting in an employer/employee relationship but rather in that of an independent
contractor relationship”).
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{¶ 24} Although Ugicom’s arguments are not without some force, the
narrow question here is whether some evidence supported the bureau’s
determinations. We conclude that some evidence supported the determinations,
namely, the evidence showing Ugicom’s exertion of control over the installers
through its method of payment. Ugicom’s take-it-or-leave-it approach to pricing
the jobs, which foreclosed an installer’s ability to submit a bid, was a means of
controlling the installers.
4. Length of employment
{¶ 25} The bureau determined that Ugicom had an ongoing relationship
with the installers. In support of that finding, the bureau pointed to the “high dollar
amounts” reflected on the installers’ Forms 1099, which the bureau reasoned was
indicative of large volumes of work performed by the installers. The bureau also
inferred that the installers were involved in an ongoing relationship with Ugicom
because there was no evidence showing that the installers had advertised their
services to the community at large.
{¶ 26} Ugicom challenges the bureau’s determination that Ugicom had an
ongoing relationship with the installers, claiming that the bureau cited no legal
authority permitting it to consider that factor. It also claims that an “ongoing
relationship is not evidence of an employment relationship.” Ugicom is wrong on
both counts. As the bureau noted in its decision, this court determined in Bostic
that the “length of employment” is relevant to the analysis, 37 Ohio St.3d at 146,
524 N.E.2d 881. Nor does Ugicom persuasively contest the bureau’s rationale
regarding the installers’ lack of advertising. Ugicom singles out evidence
pertaining to Lule’s advertising expenses, but we fail to see how this bears on the
installers’ worker status. Moreover, the most we can find in the record is a bare
line item showing that Lule claimed a $20 advertising expense for one tax year.
{¶ 27} Ugicom’s reliance on Barcus v. Buehrer, 10th Dist. Franklin No.
14AP-942, 2015-Ohio-3122, is also unavailing. Ugicom points to arguable
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similarities between the contract that it used with its installers and the contract at
issue in Barcus, highlighting each contract’s duration and notice provisions. But
although the court of appeals in Barcus concluded that the worker in that case was
an independent contractor, it did so for reasons unrelated to the contractual
provisions to which Ugicom refers. See id. at ¶ 26-32.
{¶ 28} In summary, some evidence supported the bureau’s determination
under this factor.
5. Pertinent agreements or contracts
{¶ 29} The bureau pointed to Ugicom’s independent-contractor agreement
as evidence of Ugicom’s efforts to control the installers. Although the agreement
labeled an installer as an independent contractor, the bureau determined that the
significance of that label was undercut by the agreement’s noncompete clause,
which provided that an installer “shall not provide during the agreement term
services to any competitor of [Ugicom].”
{¶ 30} Ugicom claims that the bureau assigned too much significance to the
noncompete clause, arguing that the clause did not restrict an installer from
performing work unrelated to Ugicom’s services. True, the agreement defined the
term “competitor” as a “provider of services similar to those provided by
[Ugicom].” But the agreement nevertheless restricted the installers’ freedom to
work, which evinces a measure of Ugicom’s control over the installers.
{¶ 31} Ugicom again invokes Barcus, 2015-Ohio-3122, at ¶ 26, claiming
that the court of appeals in that case held that an independent-contractor agreement
that included a noncompete clause was unequivocal evidence of an independent-
contractor relationship. But Barcus is silent as to the effect of the noncompete
clause in that case. The court of appeals’ decision in Americare Healthcare Servs.
v. Akabuaku, 10th Dist. Franklin No. 10AP-777, 2010-Ohio-5631, which Ugicom
also cites, is further afield because it concerned whether a noncompete clause could
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be enforced, not whether it was indicative of a particular work relationship, id. at
¶ 21.
{¶ 32} In summary, the independent-contractor agreement is some evidence
of an employment relationship between Ugicom and the installers.
6. Whether the parties believed they were creating an employment relationship
{¶ 33} In considering this factor, the bureau was unpersuaded by Ugicom’s
evidence showing that some of the installers thought they were independent
contractors. Specifically, the bureau gave no weight to uncontroverted affidavits
submitted by two Ugicom installers attesting that they were independent
contractors. The bureau reasoned that the substance of the work relationship, rather
than its form, was the touchstone for determining the installers’ worker status.
{¶ 34} Ugicom challenges the bureau’s disregard of the affidavits. But we
have held that the bureau does not necessarily err when, as here, it disregards an
uncontroverted affidavit. State ex rel. Cherryhill Mgt., Inc. v. Indus. Comm., 116
Ohio St.3d 27, 2007-Ohio-5508, 876 N.E.2d 525, ¶ 13 (rejecting the argument that
“absent contrary evidence, the commission must accept [the affiant’s] affidavit as
persuasive”).
{¶ 35} Ugicom also challenges the bureau’s refusal to assign weight to the
independent-contractor label that Ugicom gave the installers in the independent-
contractor agreement. Although the bureau was perhaps too dismissive of the
contract—by suggesting that such a contract may be a “red flag”—the bureau’s
conclusion that it was not bound by the parties’ labels was nevertheless correct,
because “a description by the parties of their future relationship is not necessarily
determinative when viewed in light of their actual subsequent activities,” N & G
Constr., Inc. v. Lindley, 56 Ohio St.2d 415, 417, 384 N.E.2d 704 (1978), fn. 1
(declining to assign determinative weight to a contract’s declaration that the
appellant in that case was an independent contractor).
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{¶ 36} Mindful that the bureau is the “exclusive finder of fact” with the sole
“responsibility to evaluate the weight and credibility of the evidence,” State ex rel.
Beyer v. Autoneum N. Am., 157 Ohio St.3d 316, 2019-Ohio-3714, 136 N.E.3d 454,
¶ 8, we conclude that the bureau did not abuse its discretion in failing to credit
Ugicom’s evidence under this factor.
7. Tools for the job
{¶ 37} Ugicom challenges the bureau’s refusal to give credit to the fact that
the installers supplied their own vehicles, gasoline, cell phones, hand tools, and
ladders. The bureau declined to accord any weight to that work arrangement
because, in its reasoning, it is not uncommon in employment relationships for an
employee to supply his own vehicle and tools and to receive mileage
reimbursement. But the evidence supporting the bureau’s statement in that regard
is not apparent in its decision. It follows that the bureau’s conclusion under this
factor was not supported by some evidence.
8. The skill required in the particular occupation
{¶ 38} The bureau determined that minimal skill was required to do the
installers’ job. Some evidence supported this determination—the bureau quoted in
its decision Eyink’s statement that the “skill level needed to bury the cable is not
high or unique.” Ugicom challenges that statement in two ways, but neither is
persuasive. First, it points to decisions by other courts determining that cable
installers possess specialized skills. See Santelices v. Cable Wiring and S. Florida
Cable Contrs., Inc., 147 F.Supp.2d 1313, 1320 (S.D.Fla.2001); Bennett v. Unitek
Global Servs., L.L.C., N.D.Ill. No. 10 C 4968, 2013 WL 4804841, *9-10 (Sept. 9,
2013). But the core inquiry here concerns the facts, and the facts presented in other
decisions may not substitute for those in this case. Second, Ugicom argues that in
addition to burying the cable, the installers connected the cable to the connection
box on the home and used a meter to ensure that the connection was successful.
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But Ugicom does not develop a fact-based argument to show that these other tasks
required specialized skills.
{¶ 39} It suffices for the purposes of our review that the bureau’s
determination under this factor was supported by some evidence.
9. Details and quality of the work
{¶ 40} In considering this factor, the bureau assigned weight to Ugicom’s
reliance on a quality-control inspector to ensure that the installers were doing their
jobs correctly. But Ugicom correctly points out that the inspector’s purpose was to
ensure that the installers were doing their jobs according to the standards prescribed
by TWC, not Ugicom. And even if Ugicom had prescribed the standards, a contract
provision stating that a job shall be performed subject to the “ ‘approval or
satisfaction of the employer * * * is not an assumption by the employer of the right
to control the person employed as to the details or method of doing the work, but is
only a provision that the employer may see that the contract is carried out according
to the plans.’ ” Gillum, 141 Ohio St. at 382, 48 N.E.2d 234, quoting 27 American
Jurisprudence, Section 7, at 488. The bureau also found it significant that TWC
would fine Ugicom for substandard work. But that is a mark of TWC’s control
over Ugicom, not Ugicom’s control over the installers.
{¶ 41} Ugicom next challenges the bureau’s finding that “[the installers’
work] is not the type of work where a supervisor must tell the worker where to dig
a trench for each job order.” Ugicom correctly exposes a flaw in the bureau’s
reasoning—in Gillum, this court recognized that a lack of supervision is indicative
of a lack of control, id. at 381. Nor is it clear that there was some evidence to
support the bureau’s statement that the installers’ decisions about where and how
to bury a cable “are the same decisions made by competent employees.”
{¶ 42} Ugicom correctly notes that it did not impose work requirements on
the installers akin to those of employees. First, rather than requiring the installers
to work from, say, 8:00 a.m. to 5:00 p.m., the installers needed only to respond to
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service requests within two hours. This arrangement is not the same level of control
as “[t]elling a hired person that he must work from this hour to this hour * * *,
which suggests that the person is an employee.” Soloman v. Dayton Window &
Door Co., L.L.C., 196 Ohio App.3d 16, 2011-Ohio-6182, 961 N.E.2d 1229, ¶ 16
(2d Dist.). Second, as noted above, the installers were free to accept or reject the
jobs posted to Ugicom’s website. Neither of these facets of the work relationship
reflect Ugicom’s control over the installers.3
{¶ 43} In summary, the bureau’s finding under this factor was not supported
by some evidence.
10. The bureau’s ultimate conclusion
{¶ 44} Although the evidence presented to the bureau concerning the
installers’ worker status points in both directions, we are not called upon to reweigh
it here; rather, our function is to determine whether the bureau abused its discretion
by entering an order that is not based on some evidence in the record. See
Digiacinto, 159 Ohio St.3d 346, 2020-Ohio-707, 150 N.E.3d 933, at ¶ 13.
Applying that standard, we conclude that the bureau did not abuse its discretion in
determining that the installers were Ugicom’s employees, because most (though
not all) of the bureau’s conclusions under the factors were rooted in some evidence
in the record.
B. The quality-control worker
{¶ 45} The bureau determined that Lule, who performed quality-control
services for Ugicom, was Ugicom’s employee. In reaching that conclusion, the
bureau relied on testimony from Eyink, who deduced that Ugicom had been Lule’s
sole source of income for a period. In the bureau’s view, Lule’s financial
3. Ugicom argues that the installers’ freedom to accept or reject a job, which entails their decisions
whether they want to travel to a particular jobsite, may also be analyzed under the who-selects-the-
routes-traveled factor set forth in Bostic, 37 Ohio St.3d at 146, 524 N.E.2d 881. Although the bureau
did not consider this factor, Ugicom has persuasively established that the bureau conducted a flawed
analysis under the details-and-quality-of-the-work factor.
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dependence on Ugicom was evidence that he was not engaged in a business
independent of Ugicom.
{¶ 46} Ugicom contends that Lule worked as an independent contractor,
noting that he held himself out to the IRS as self-employed and maintained his own
workers’ compensation policy.4 We reiterate what we have said before: our role
here is not to reweigh the evidence. See State ex rel. Turner Constr. Co. of Ohio v.
Indus. Comm., 142 Ohio St.3d 310, 2015-Ohio-1202, 29 N.E.3d 969, ¶ 12. Even if
some of the evidence tends to detract from the bureau’s decision, that is not enough
to establish that the bureau abused its discretion. See Packaging Corp. of Am., 139
Ohio St.3d 591, 2014-Ohio-2871, 13 N.E.3d 1163, at ¶ 26. It suffices for the
purposes of our review that some evidence supported the bureau’s determination
that Lule was Ugicom’s employee.
C. The Barcus decision
{¶ 47} Contrary to what Ugicom suggests, our decision upholding the
bureau’s decision will not create any tension with Barcus, 2015-Ohio-3122. As the
court of appeals aptly explained below, the scope of review in Barcus differed
markedly from that required here. See Ugicom II, 2021-Ohio-1269, at ¶ 25. Barcus
involved a worker’s appeal of a trial court’s grant of summary judgment to the
worker’s purported employer, which the court of appeals then reviewed de novo,
determining that the worker was an independent contractor. Barcus at ¶ 1-5, 32;
Ugicom II at ¶ 25, citing Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-
Ohio-4505, 936 N.E.2d 481, ¶ 29 (“Because this case was originally decided on
summary judgment, our review is de novo”). It follows that because the court in
Barcus was not bound by the some-evidence standard, that case does not furnish a
helpful guide to our application of that standard here.
4. Ugicom intersperses its discussion of Lule with several references to an entity known as Jotin
Enterprises, L.L.C. The bureau, however, made no findings as to Jotin.
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III. CONCLUSION
{¶ 48} We affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and FISCHER, DONNELLY, STEWART, and BRUNNER, JJ.,
concur.
KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
_________________
KENNEDY, J., dissenting.
{¶ 49} I dissent from the majority’s affirmance of the decision of the Tenth
District Court of Appeals that there was some evidence supporting the
determination of appellee, Sarah Morrison, administrator of the Bureau of Workers’
Compensation, in this case. The bureau determined that cable installers who
appellant, Ugicom Enterprises, Inc., had characterized as independent contractors
were Ugicom’s employees for purposes of Ohio’s workers’ compensation program.
Because there was no evidence supporting its decision, I would hold that the bureau
abused its discretion and reverse the judgment of the court of appeals.
Standard of review
{¶ 50} The issue before us is whether the evidence that the bureau relied on
to determine that the cable installers were Ugicom’s employees for purposes of the
workers’ compensation program was sufficient to be deemed “some evidence.” See
State ex rel. Digiacinto v. Indus. Comm., 159 Ohio St.3d 346, 2020-Ohio-707, 150
N.E.3d 933, ¶ 13. This court does not conduct de novo evidentiary review of a
decision of the bureau in a mandamus action, and we do not substitute our judgment
of the facts for that of the bureau. See State ex rel. Pass v. C.S.T. Extraction Co.,
74 Ohio St.3d 373, 376, 658 N.E.2d 1055 (1996). However, this court does not
hesitate to reverse a decision of the bureau when its classification of a worker was
arbitrary, capricious, or discriminatory, i.e., an abuse of discretion. See State ex
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rel. Progressive Sweeping Contrs., Inc. v. Bur. of Workers’ Comp., 68 Ohio St.3d
393, 396, 627 N.E.2d 550 (1994).
Employee v. independent contractor
{¶ 51} “The chief test in determining whether one is an employee or
an independent contractor is the right to control the manner or means of performing
the work.” Bobik v. Indus. Comm., 146 Ohio St. 187, 64 N.E.2d 829 (1946),
paragraph one of the syllabus. If the employer reserves the right to control the
manner or means of doing the work, as well as the result, then an employer-
employee relationship is created. State ex rel. Nese v. State Teachers Retirement
Bd., 136 Ohio St.3d 103, 2013-Ohio-1777, 991 N.E.2d 218, ¶ 33-34. On the other
hand, if the employer specifies only the result of the work and the worker
determines the manner or means of doing the work, then an independent-contractor
relationship is created. Id. Control over the manner or means of the work exists
on a continuum on which the statuses of “employee” and “independent contractor”
are separated. Id. at ¶ 34.
{¶ 52} In Gillum v. Indus. Comm., 141 Ohio St. 373, 374-375, 48 N.E.2d
234 (1943), this court recognized commonly accepted factors for identifying an
independent-contractor relationship. But we noted that the “ ‘presence of one or
more of such indicia in a case is not necessarily conclusive.’ ” Id. at 375, quoting
27 American Jurisprudence, Section 5, at 485. Some of the factors cited in Gillum
were “ ‘the independent nature of [the worker’s] business or his distinct calling,
* * * his obligation to furnish necessary tools, supplies, and materials, his right to
control the progress of the work except as to final results, the time for which the
workman is employed, the method of payment, * * * and whether the work is part
of the regular business of the employer.’ ” Id., quoting 27 American Jurisprudence
at 485. But this court in Gillum stated that the decisive question is “ ‘who has the
right to direct what shall be done, and when and how it shall be done.’ ” Id., quoting
27 American Jurisprudence at 485.
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{¶ 53} In Bostic v. Connor, 37 Ohio St.3d 144, 146, 524 N.E.2d 881 (1988),
citing Gillum and other authority, this court set forth elements to consider when
determining who has the right to control the manner or means of performing work:
The factors to be considered include, but are certainly not limited to,
such indicia as who controls the details and quality of the work; who
controls the hours worked; who selects the materials, tools and
personnel used; who selects the routes travelled; the length of
employment; the type of business; the method of payment; and any
pertinent agreements or contracts.
The Ugicom model
{¶ 54} Ugicom is largely a labor-management company that posts jobs for
the installation of underground-cable lines for Time Warner Cable Company.
Ugicom contracts with installers who install the cable lines. Ugicom considers the
installers to be independent contractors.
{¶ 55} Time Warner contracted with Ugicom for the installation of its cable
lines. The installation of the cable lines consists of running the lines underground
from Time Warner’s main line to the cable box on the exterior of the customer’s
home or business. Time Warner required the Ugicom-affiliated installers to follow
certain contractual protocols. Those obligations existed irrespective of the work
relationship between Ugicom and the installers. For instance, Time Warner
required the installers to submit to a drug test and to wear a badge with an
identification number. Time Warner imposed fines on installers for losing their
badges.
{¶ 56} Time Warner also established standards for how the finished
installation should look. All the cable materials for the jobs are provided by Time
Warner because they are customized for Time Warner, and the installers pick up
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those materials from a Time Warner warehouse. All these requirements are part of
the nature of doing business with Time Warner and of doing the installation work.
{¶ 57} All of Time Warner’s requirements are separate from Ugicom’s
requirements for the installers. Each installer enters a written contract with
Ugicom. The contract requires the installer to maintain workers’ compensation
insurance and liability insurance, as the installer is solely responsible for any
damage that the installer causes in completing a Time Warner work order. Each
year, an installer receives from Ugicom an Internal Revenue Service (“IRS”) Form
1099. The installers are not W-2 employees, and Ugicom does not withhold from
the installers’ payments any local, state, or federal taxes. Ugicom does not offer
life- or health-insurance benefits to the installers. All written contracts with the
installers contain a noncompete clause that states: “Contractor shall not provide
during the agreement term services to any competitor of [Ugicom].”
{¶ 58} As for the work itself, Time Warner alerts Ugicom to installation
jobs that are available in Ugicom’s geographic area under the contract. Ugicom
then posts those jobs on its web-based system. Installers may sign up to perform a
posted job, and if they take a job, the job must be completed within a two-hour time
frame. Ugicom does not assign any particular installer to any particular job, and an
installer does not have to accept any particular job. There are no set work hours.
The installers provide their own transportation, cell phones, laptop computers, and
tools to complete the work. The installers may also reject any work order or leave
a jobsite if they are unable to complete it. The installers may contact Time Warner’s
customers to schedule installation appointments.
{¶ 59} After an installation is complete, the installer records the job as
having been completed on Ugicom’s web-based system. Ugicom sets the installers’
pay based on what Time Warner is willing to pay for the service. The installers are
paid weekly. And Ugicom performs quality-control checks on 20 percent of the
jobs to verify that the lines were buried correctly.
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The bureau abused its discretion
{¶ 60} The majority affirms the appellate court’s judgment, finding that
some evidence supported the bureau’s decision. I disagree. There is no evidence
supporting the bureau’s decision.
{¶ 61} The decisions prompting this court’s review of the bureau’s
determination start with the decision of the bureau’s adjudicating committee that
Ugicom had misclassified the installers as independent contractors. Ugicom sought
review of the committee’s decision by the administrator’s designee. See R.C.
4123.291(B). The designee affirmed the adjudicating committee’s decision,
adopting its statement of facts and legal rationale and “find[ing] that, under the
common law test of Gillum and Bostic, Ugicom exercises control over the workers,
and * * * the Bureau’s auditor’s conclusion that the workers are employees [was]
correct based on these facts and under the law.” This court must now determine
whether that decision was supported by some evidence. In my view, the bureau’s
decision was not based on some evidence.
{¶ 62} Although the bureau did not organize its decision according to the
factors from Gillum and Bostic, the majority opinion distills those factors, so I
follow suit below.
Whether the work is part of the regular business of the employer
{¶ 63} Ugicom and the installers both work in the broad industry of
underground-cable installation. The work at the cable-installation jobsites is
related to the regular business of Ugicom, but Ugicom is a labor-management
company that is in the business of posting available underground-cable-installation
jobs. The installers are involved in only the manual labor of installing the
underground-cable lines.
{¶ 64} The bureau pointed to the installers’ practice of wearing badges
identifying them as being affiliated with Ugicom and Time Warner. But that is a
jobsite requirement of Time Warner, not Ugicom. The installers work at jobsites
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under certain minimum-identification rules. That is public relations, not control
over how the installers’ work is done. There is no evidence of an independent-
contractor relationship under this factor.
Whether the installers are engaged in an independent business
{¶ 65} The installers are independent workers who perform services for
Time Warner. They may take on as much work as they want or as little as they
want. The public image that the installers project—which involves wearing a Time
Warner badge and having a Time Warner placard on their vehicles—exists to
satisfy the contractual requirements between Time Warner and Ugicom. Many of
the installers involved in this case had formed their own limited liability companies
to take on the work. The installers were responsible for reporting their income for
taxes purposes, for paying for their health insurance and life insurance, and for
paying to have their mistakes remediated. Their income was reported to the IRS
through Forms 1099 rather than Forms W-2. There is no umbrella administrative
structure that Ugicom provides to the installers; the installers operate independently
of Ugicom, except for receiving job referrals through postings on Ugicom’s web-
based system. There is no evidence that supports the conclusion that the installers
were Ugicom’s employees under this factor.
Method of payment
{¶ 66} The installers are paid by the job, with the rate being determined by
the market; that is, the rate is based on how valuable Time Warner believes a
particular service is. Based on that amount, Ugicom determines how much it will
pay an installer. As the majority acknowledges, the bureau incorrectly relied on the
installers’ receipt of piece-rate compensation (i.e., payment per job) as being “a
clear indicator of employment as it is regulated by the Fair Labor Standards Act [,
29 U.S.C. 201 et seq].” But the majority clings to the payment structure for Time
Warner’s jobs and says it is evidence of Ugicom’s control. The majority states that
Ugicom’s take-it-or-leave it approach to pricing was a means of controlling the
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installers. But the majority fails to consider that because the installers were
independent contractors, they could easily “leave it.” The installers’ ability to
decline jobs is a powerful indicator of a lack of control by Ugicom. There is no
evidence to support the bureau’s decision under this factor.
Length of employment
{¶ 67} The bureau found that “[t]he ongoing relationship the workers have
with Ugicom is a straightforward indicia of employment because the relationship
contemplates continuing or recurring work.” But the bureau cited no law
supporting that assertion, nor did it cite any authority supporting the proposition
that an independent-contractor relationship cannot last for years.
Pertinent agreements or contracts
{¶ 68} The bureau disregarded the plain language of the contracts between
Ugicom and the installers. The contract involved here is titled “Unicom Enterprises
Independent Contractor Agreement” and contains plain language establishing an
independent-contractor relationship:
Whereas the Company desires [to] retain the services of the
Independent Contractor to install Cable technology in the
Company’s area of business operations the Independent Contractor
represents itself as competent and qualified to accomplish the
specific requirements of this contract to the satisfaction of the
Company therefore this contract is entered into under the following
terms and conditions.
{¶ 69} But the bureau used the contract, which refers to the installers as
independent contractors, as evidence that the installers were not independent
contractors, calling the agreement “a red flag to look closely at the true nature of
the relationship.” That erroneous conclusion is discussed more fully below in the
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section addressing nonevidence relied on by the bureau. But for purposes of the
Gillum and Bostic factors, the terms of the contract can only be taken as evidence
of an independent-contractor relationship. The contract’s terms involve the
reporting of payments using a Form 1099 rather than a Form W-2 and the installers’
responsibility for their own liability, health, and workers’ compensation coverages.
And as discussed below, the inclusion of a noncompete clause in a contract is not
an impediment to an independent-contractor relationship—such a term may be part
of an independent-contractor relationship.
{¶ 70} Finally, the bureau attempted to diminish the affidavits of two
installers who testified about their independent-contractor relationship with
Ugicom. The bureau said that that “meeting of the minds” did not control and
opined that Ugicom merely required “an ‘independent contractor’ agreement to be
executed in order [for an installer] to obtain work.” But such an agreement is in
the very nature of an independent-contractor relationship.
{¶ 71} Regarding this factor, the bureau tried to diminish the fact that the
contracts between the installers and Ugicom were indicia of an independent-
contractor relationship. The contracts are evidence of only an independent-
contractor relationship.
Whether the parties believed they were creating an employment relationship
{¶ 72} Again, two installers submitted affidavits referring to their contracts
with Ugicom and stating that they considered themselves to be independent
contractors. This was the only evidence before the bureau on this factor, so no
evidence could support the bureau’s determination under the factor.
Tools for the job
{¶ 73} The bureau gave Ugicom no credit for the fact that the installers
provided their own transportation and used their own tools, cell phones, and laptop
computers. Despite the fact that a worker’s use of his or her own tools is a factor
weighing in favor of finding an independent-contractor relationship, the bureau
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refused to accord appropriate weight under this factor. But it remains that there
was no evidence supporting the bureau’s determination under this factor.
The skills required in the particular occupation
{¶ 74} The bureau’s auditor essentially said that the installers merely turn
dirt over with a shovel. But the installers also connect cable to the customers’
homes or other buildings, design the pathway that the cable will take, dig under
sidewalks and garden areas, check the connection for a signal to ensure that the
installation was successful, and interact with Time Warner’s customers for
scheduling purposes. And they do all of this with speed. The skill displayed by the
installers under this factor must be considered in favor of finding an independent-
contractor relationship; it is not an indicator that Ugicom controlled the manner or
means of the work.
Details and quality of the work
{¶ 75} Overall, there is a lack of supervision by Ugicom over the work
performed by the installers. The installers’ work hours are up to the installers—all
that is necessary is that the Time Warner customer be amenable to the hours
suggested by the installer for the installation. The installer’s efficiency determines
how much the installer will be paid over the course of a year. There is no evidence
under this factor that indicates control by Ugicom.
Nonevidence that the bureau relied on
{¶ 76} There is no evidence that Ugicom, rather than the installers,
controlled the manner or means of the installation work. Ugicom merely posts
available work on its web-based system, and the installers take it from there.
Ugicom does inspect 20 percent of the jobsites for quality-control purposes, but
that process does not amount to control of the manner or means of the installers’
work. “ ‘Such a provision is not an assumption by the employer of the right to
control the person employed as to the details or method of doing the work, but is
only a provision that the employer may see that the contract is carried out according
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to the plans.’ ” Gillum, 141 Ohio St. at 382-383, 48 N.E.2d 234, quoting 27
American Jurisprudence, Section 7, at 488.
{¶ 77} What is most concerning about the bureau’s decision is that it was
largely based on the bureau’s nonevidentiary suppositions and generalizations
unrelated to the actual facts of this case. For instance, the bureau based its decision,
in part, on the following statement: “In many situations, the fact that an employer
uses a document called an ‘independent contractor’ agreement to characterize the
relationship, rather than a contract for the performance of a certain piece or kind of
work, is a red flag to look closely at the true nature of the relationship.” It may be
true that there have been cases in which the bureau found an employer-employee
relationship when the employer and the employee had an “independent contractor”
agreement, but those instances are not evidence that such an agreement amounts to
one party’s control over the manner or means of the work performed by the other
party. Even if the bureau believes that such agreements are a “red flag,” a red flag
is only an indication that a situation should be looked at more deeply—and there is
nothing in the “true nature of the relationship” here that indicates that Ugicom
controlled the manner or means of the installers’ work.
{¶ 78} Similarly, to support its decision, the bureau used its general
impressions, which are not rooted in the law, of how an independent contractor
should behave. The bureau stated, “The Ugicom workers are not bidding on work
like an independent contractor in the construction industry would bid on work. In
the construction industry, a person maintaining their own separate business takes
into consideration all of their expenses when pricing work in order to make a profit
and is at risk of a loss.” But how independent contractors in the construction
industry go about their work does not inform the question whether it was Ugicom
or the installers who controlled the manner or means of installing the underground-
cable lines. The question in this case is who controlled or had the right to control
the manner or means of how the installers performed their work. The bureau’s
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overreaching statement about contractors in the construction industry is not some
evidence.
{¶ 79} Further, the bureau stated that “[a] true independent contractor
typically advertises and offers their services to the community at large.” But the
bureau’s statement concerning how independent contractors typically advertise
their services has no basis in law and is at best anecdotal. It is not some evidence
that the installers in this case were Ugicom’s employees.
{¶ 80} The bureau also relied on its nonevidentiary opinion about the
noncompete clause in the written contracts between Ugicom and the installers. The
bureau stated, “This control can be proper in certain employment relationships, but
is not a provision used in independent contractor relationships.” But that
conclusion is contrary to caselaw. In Barcus v. Buehrer, 10th Dist. Franklin No.
14AP-942, 2015-Ohio-3122, the court of appeals determined that the truck driver
involved in that case was an independent contractor, even though the contract
between him and the transportation company that was alleged to have been his
employer included a noncompete clause. The court stated that “[t]he
noncompetition clause precluded [the truck driver] from working for [the
transportation company’s] customers, but this provision appear[ed] motivated by
[the company’s] desire to protect its business, not to curtail its drivers’ ability to
engage in outside work.” Id. at ¶ 30.
{¶ 81} The same conclusion can be drawn in this case: Ugicom maintains
its relationship with Time Warner by not allowing its subcontractors to work for
other cable companies. Regardless, the salient point under Barcus is that
noncompete agreements are used by companies and their independent
subcontractors, despite the bureau’s broad claim to the contrary. Further, in
Hamilton Ins. Servs., Inc. v. Nationwide Ins. Cos., 86 Ohio St.3d 270, 274-275, 714
N.E.2d 898 (1999), this court held that a noncompete clause between Nationwide
Insurance Companies and its independent-contractor agent was valid and
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enforceable. And in Americare Healthcare Servs. v. Akabuaku, 10th Dist. Franklin
No. 10AP-777, 2010-Ohio-5631, ¶ 21, the court of appeals held that the
enforceability of a noncompete clause does not depend on the status of a party to
the contract as an employee or an independent contractor.
{¶ 82} The bureau adopted a smell test rather than applying a test requiring
review of the actual evidence. The bureau started from its conclusion and then
attempted to force factors that supported Ugicom’s claim that the installers were
independent contractors to instead support its notion that they were not. The bureau
stated that “Ugicom is on the more sophisticated end of employers that have
misclassified the labor for its business operation.” In conducting its analysis that
way, the bureau was able to take evidence proving that the installers were
independent contractors and flip it.
{¶ 83} For instance, the bureau took the facts that many of the installers had
formed their own limited liability companies or had obtained their own workers’
compensation coverage as evidence that they were not independent contractors:
“Ugicom apparently requires the workers to either form an LLC or take out
workers’ compensation coverage. The fact that a worker paid the filing fee to form
an LLC does not mean the worker is actually in business for themselves. Employers
that misclassify employees sometimes require the worker to form an LLC before
they ‘hire’ the worker as an ‘independent contractor.’ ” Rather than correctly
considering this evidence in Ugicom’s favor, the bureau characterized it as things
that a company does to disclaim the necessity of participation in the workers’
compensation program. In my view, this indicates that the bureau made its decision
without considering the evidence.
{¶ 84} Lastly, the bureau criticized Ugicom for attempting to make its case
by concentrating on the right-to-control factors. Instead of addressing Ugicom’s
arguments, the bureau opined that the arguments were typical of an employer who
is trying to disclaim an employer-employee relationship:
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When an employer points to “right to control” factors, the
workers are usually not performing services in an independent
business, trade or profession. Ugicom’s position is typical of an
employer attempting to justify why they classified the labor for their
business operation as “independent contractors.” The employer
ignores that the independent business or occupation of the worker is
of “prime importance,” while placing great weight on certain factors
in the “right to control” test when the facts do not support [that] the
individual is in business for himself in the place. That is the case
here.
{¶ 85} The actions of parties not involved in this case are not evidence in
this case, nor are the bureau’s assumptions or insinuations.
The Gillum and Bostic factors support a determination that Ugicom’s installers
were independent contractors
{¶ 86} In applying the Gillum and Bostic factors to determine who had the
right to control the manner or means of the work, it is important to not miss the
forest for the trees. This court in Gillum stated that the decisive question is “ ‘who
has the right to direct what shall be done, and when and how it shall be done.’ ”
Gillum, 141 Ohio St. at 375, 48 N.E.2d 234, Id., quoting 27 American Jurisprudence
at 485. Likewise, the factors set forth in Bostic, 37 Ohio St.3d at 146, 524 N.E.2d
881, are designed to determine who has the right to control the manner or means of
performing work.
{¶ 87} Ugicom is essentially a labor-management company serving as a
referral service for underground-cable-installation jobs for its customer, Time
Warner. The only thing that it controls is how the installers get paid. It informs
installers about available work, but the installers control the manner or means of
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the work performed. The installers undertake jobs at their own discretion. They
provide their own tools, technology, and transportation. They are not W-2
employees, and many of them have formed limited liability companies to do the
work. They are responsible for any damage that they cause to the customers’
property and, to that end, they carry their own liability insurance and are responsible
for their own workers’ compensation coverage. They are parties to a contract that
declares that they are independent contractors, and two installers testified before
the bureau that they were independent contractors. They know what a finished
installation is supposed to look like based on instruction by Time Warner, not
Ugicom. But no one tells them how to do their jobs. They are involved in a niche
industry that has a narrow customer base. And they control the manner and means
of doing their work.
The weakness of the majority opinion
{¶ 88} The flaw in the majority opinion is its fealty to the decision of the
bureau. Because the majority defends the bureau’s decision, it is forced to ignore
the obvious facts in the record in order for it to look for some evidence in the space
between the bureau’s untethered decision and the caselaw. The bureau jumped to
a quick conclusion, claiming to have determined Ugicom’s true motives:
Ugicom simply called its workers ‘independent contractors’
to evade the obligations associated with having employees. The
workers are vetted by [Time Warner] and given identification
badges that lets customers of [Time Warner] know that Ugicom, a
contractor for [Time Warner], is on their property performing the
work. [Time Warner] pays Ugicom for the service performed and
Ugicom in turns pays the workers for their labor. The workers are
not contracting with Ugicom to provide a specialized service that is
not a part of the regular business of Ugicom.
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{¶ 89} The some-evidence rule presents a playing field that is tilted toward
the bureau, but the bureau must still supports its conclusions with relevant and
probative evidence. The majority here has not identified any evidence that supports
its conclusion that Ugicom has the right to control the manner or means of the
installers’ work. The contractual terms between Time Warner and Ugicom and the
suppositions and generalizations of the bureau that are unrelated to the facts of this
case cannot serve as “some evidence” to support the bureau’s decision.
Conclusion
{¶ 90} Because there was no evidence supporting the bureau’s conclusion
that Ugicom controlled the manner or means of the work performed by the
underground-cable installers, the bureau abused its discretion in determining
otherwise. Accordingly, I would reverse the judgment of the court of appeals.
Because the majority holds that some evidence supported the bureau’s decision, I
dissent.
DEWINE, J., concurs in the foregoing opinion.
_________________
Zashin & Rich Co., L.P.A., and Scott Coghlan, for appellant.
Dave Yost, Attorney General, and Jacquelyn McTigue, Assistant Attorney
General, for appellee.
_________________
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