Westgate Smoky Mountains at Gatlinburg v. Burns Phillips, Commissioner, Tennessee Department of Labor and Workforce Development

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
May 30, 2013 Session Heard at Nashville1
WESTGATE SMOKY MOUNTAINS AT GATLINBURG v.
BURNS PHILLIPS, COMMISSIONER, TENNESSEE DEPARTMENT OF
LABOR AND WORKFORCE DEVELOPMENT ET AL.
Appeal by Permission from the Court of Appeals, Eastern Section
Chancery Court for Sevier County
No. 1011462 Telford E. Forgety, Chancellor
No. E2011-02538-SC-R11-CV - Filed December 23, 2013
The claimant is a licensed time-share salesperson who sold time-share interests at a resort
owned by Westgate in Gatlinburg, Tennessee. When resort management terminated the
business relationship, the claimant filed for state unemployment benefits with the Department
of Labor and Workforce Development. The initial agency decision, the Appeals Tribunal,
and the Board of Review affirmed an award of benefits to the claimant, concluding that a
time-share salesperson is not a licensed real estate agent and therefore is not subject to the
Tennessee Employment Security Law’s exclusion for services performed by a “qualified real
estate agent.” Westgate sought judicial review of the Board’s decision. The chancery court
reversed, finding that a time-share salesperson is a “licensed real estate agent” and that the
claimant was ineligible for unemployment benefits as a “qualified real estate agent.” The
Court of Appeals reversed the chancery court’s findings, and Westgate appealed. We reverse
the Court of Appeals and reinstate the judgment of the chancery court.
Tenn. R. App. P. 11;
Judgment of the Court of Appeals Reversed; Case Remanded
J ANICE M. H OLDER, J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J., and
C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.
Gregory C. Logue and J. Keith Coates, Jr., Knoxville, Tennessee, for the appellant, Westgate
Smoky Mountains at Gatlinburg.
1
Oral argument was heard in this case on May 30, 2013, at Lipscomb University in Nashville,
Tennessee, as part of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students)
project.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
Derek C. Jumper, Assistant Attorney General; Joseph F. Whalen, Associate Solicitor
General; for the appellee, Burns Phillips, Commissioner, Tennessee Department of Labor and
Workforce Development.
Gregory F. Coleman and Mark E. Silvey, Knoxville, Tennessee, for the appellee, Cynthia L.
Vukich-Daw.
OPINION
I. Facts and Procedural History
Cynthia L. Vukich-Daw sold time-share interests at Westgate Smoky Mountains at
Gatlinburg under an independent contractor agreement executed on June 4, 2003. The
agreement provided that Ms. Vukich-Daw would be paid on a commission basis and would
be responsible for her own income and payroll taxes. On November 7, 2009, Westgate
terminated the business relationship. On November 12, 2009, Ms. Vukich-Daw filed a claim
for unemployment compensation with the Department of Labor and Workforce
Development.
In considering Ms. Vukich-Daw’s claim for unemployment benefits, the Department
of Labor questioned whether the “qualified real estate agent” exclusion in Tennessee Code
Annotated section 50-7-207(c)(11) (2008 & Supp. 2013) precluded Ms. Vukich-Daw from
receiving unemployment benefits for the services that she performed as a licensed time-share
salesperson for Westgate. The tax auditor who conducted the Department of Labor’s
investigation determined that the differences between a time-share salesperson’s license and
a broker or an affiliate broker’s license entitled Ms. Vukich-Daw to unemployment
compensation benefits. In its December 9, 2009 agency decision letter, the Department of
Labor concluded that section 50-7-207(c)(11)’s exclusion for qualified real estate agents did
not apply to Ms. Vukich-Daw and that her services therefore fell within the definition of
employment under the Tennessee Employment Security Law (“Employment Security Law”).2
As a result, the Department of Labor awarded unemployment benefits to Ms. Vukich-Daw
and imposed unemployment tax liability on Westgate.
Westgate appealed to the Appeals Tribunal. Following a hearing, the Appeals
Tribunal issued a written decision on March 31, 2010. The Appeals Tribunal did not address
2
Although the Department initially concluded that a time-share salesperson is not a licensed real
estate agent under the Employment Security Law, the Department reversed its position in its brief filed in
this Court.
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the applicability of the qualified real estate agent exclusion. Instead, the hearing officer
determined that Westgate treated Ms. Vukich-Daw as an employee rather than as an
independent contractor and affirmed the Department of Labor’s award of unemployment
benefits.
Westgate timely appealed to the Board of Review. Relying on the record, the Board
of Review affirmed the Appeals Tribunal’s determination that Westgate treated Ms. Vukich-
Daw as an employee. The Board of Review noted, however, that the Appeals Tribunal failed
to address “the more vigorously contested issue” of whether Ms. Vukich-Daw’s services fell
within the qualified real estate agent exclusion. The Board of Review concluded that the
exclusion was inapplicable to Ms. Vukich-Daw because she was not a licensed real estate
agent.
On November 9, 2010, Westgate filed a petition in the Chancery Court for Sevier
County, seeking judicial review of the Board of Review’s decision. The chancery court
heard no additional testimony but considered arguments from counsel. The chancery court
determined that the dispositive issue was whether a time-share salesperson is a “licensed real
estate agent” who falls within the category of excluded services performed by a qualified real
estate agent. See Tenn. Code Ann. § 50-7-207(c)(11). The chancery court concluded that
time-share salespersons are licensed real estate agents and that Ms. Vukich-Daw met the
elements of the “qualified real estate agent” exclusion because she
(1) was a licensed Time-Share Salesperson as established by the Tennessee
Real Estate Commission during the relevant time period; (2) was paid on a
commission directly related to her sales production and not on the number of
hours she worked; and (3) performed services for [Westgate] pursuant to a
written contract which specifically stated that she was not Petitioner’s
employee and that she would be responsible for paying all of her own Federal
income taxes.
The chancery court therefore concluded that the Board of Review’s finding that a
time-share salesperson is not a licensed real estate agent is clearly erroneous as a matter of
law because it is contrary to Tennessee Code Annotated sections 50-7-207(c)(11) and
62-13-101 to -604 (2009 & Supp. 2013).3
3
Tennessee Code Annotated sections 50-7-304(i)(2)-(3) (2008 & Supp. 2013) provides that
The Chancellor may affirm the decision of the board or the Chancellor may reverse, remand,
or modify the decision if the rights of the petitioner have been prejudiced because the
(continued...)
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Ms. Vukich-Daw appealed. The Court of Appeals reversed, concluding that time-
share salespersons are not licensed real estate agents and therefore cannot fall within section
50-7-207(c)(11)’s exclusion for qualified real estate agents. Westgate Resorts v. Neeley, No.
E2011-02538-COA-R3-CV, 2012 WL 3144918, at *1 (Tenn. Ct. App. Aug. 3, 2012). We
granted Westgate permission to appeal.
II. Analysis
The facts in this case are undisputed. We are presented, therefore, with a question of
law, which we review de novo with no presumption of correctness. See Tenn. R. App. P.
13(d); Wallace v. Sullivan, 561 S.W.2d 452, 453 (Tenn. 1978) (recognizing that the Board
of Review’s conclusions of law are subject to de novo review with no presumption of
correctness).
In Tennessee, a worker’s eligibility for unemployment benefits and the corresponding
unemployment tax liability of a purported employer depend on whether the worker’s services
meet the statutory definition of “employment.” A service constitutes “employment” only if
each of the following three conditions is satisfied:
(1) It is within any category of “included service” as listed in subsection
(b);
(2) It is not within any category of “excluded service” as listed in
subsection (c); and
3
(...continued)
administrative findings, inferences, conclusions or decisions are:
(A) In violation of constitutional or statutory provisions;
(B) In excess of the statutory authority of the agency;
(C) Made upon unlawful procedure;
(D) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion; or
(E) Unsupported by evidence which is both substantial and material in the light of the
entire record.
(3) In determining the substantiality of evidence, the chancellor shall take into account
whatever in the record fairly detracts from its weight, but the chancellor shall not
substitute the chancellor’s judgment for that of the board of review as to the weight
of the evidence on questions of fact. No decision of the board shall be reversed,
remanded, or modified by the chancellor unless for errors which affect the merits
of the final decision of the board. Such petition for judicial review shall be heard
by the chancellor either at term time or vacation as a matter of right; any other
statute of this state to the contrary notwithstanding.
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(3) It is within any category of “Tennessee service” as listed in subsection
(d).
Tenn. Code Ann. § 50-7-207(a)(1)-(3) (2008 & Supp. 2013).
The parties agree that if Ms. Vukich-Daw’s services as a time-share salesperson fall
“within any category of ‘excluded service’” under subsection (2), she does not meet the
definition of employment and is therefore ineligible to receive unemployment benefits. Id.
Qualified Real Estate Agent Exclusion
The Employment Security Law excludes the services of a qualified real estate agent.
A person is a qualified real estate agent if:
(A) The individual is a licensed real estate agent;
(B) Substantially all of the remuneration for the services performed as a
real estate agent is directly related to sales or other output, including the
performance of services, rather than the number of hours worked; and
(C) The services performed by the individual are performed pursuant to a
written contract between the individual and the person for whom the
services are performed, and the contract provides that the individual
will not be treated as an employee with respect to the services for
federal tax (FUTA) purposes.
Tenn. Code Ann. § 50-7-207(c)(11)(A)-(C).
This exclusion was added to our Employment Security Law in 1987 to conform with
the Internal Revenue Code. See Tenn. Code Ann. §§ 50-7-102(b), -104(b) (2008) (indicating
that the Employment Security Law is to be construed in pari materia with the Internal
Revenue Code, Federal Unemployment Tax Act). In fact, our exclusion closely tracks the
language of the “qualified real estate agent” exclusion of the Internal Revenue Code, which
provides that:
The term ‘qualified real estate agent’ means any individual who is a sales
person if – (A) such individual is a licensed real estate agent, (B) substantially
all of the remuneration (whether or not paid in cash) for the services performed
by such individual as a real estate agent is directly related to sales or other
output (including the performance of services) rather than to the number of
hours worked, and (C) the services performed by the individual are performed
pursuant to a written contract between such individual and the person for
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whom the services are performed and such contract provides that the
individual will not be treated as an employee with respect to such services for
Federal tax purposes.
26 U.S.C. § 3508(b)(1)(A)-(C) (West 2013). Section 3508 further provides that “in the case
of services performed as a qualified real estate agent . . . (1) the individual performing the
services shall not be treated as an employee; and (2) the person for whom such services are
performed shall not be treated as an employer.” 26 U.S.C. § 3508(a)(1)-(2). Congress
enacted section 3508 in 1986 to respond to increased federal employment “‘tax status
controversies,’” and “to provide ‘a statutory scheme for assuring the status of . . . real estate
sales people as independent contractors . . . .’” Smoky Mountain Secrets, Inc. v. United
States, 910 F. Supp. 1316, 1321 (E.D. Tenn. 1995) (referring to qualified real estate agents
as statutory non-employees).
Consistent with the Internal Revenue Code, a qualified real estate agent under
Tennessee Code Annotated section 50-7-207(c)(11) is a statutory non-employee who is not
entitled to unemployment benefits. We now consider whether Ms. Vukich-Daw’s services
as a time-share salesperson satisfy the exclusion’s three criteria.
A. Licensed Real Estate Agent
Tennessee Code Annotated section 50-7-207(c)(11)(A) requires us to first determine
whether a time-share salesperson is a “licensed real estate agent.” When we interpret a
statute, we must ascertain and give full effect to the General Assembly’s intent. Walker v.
Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008). Our primary concern
is to carry out this intent without unduly expanding or restricting the language of the statute
beyond the legislature’s intended scope. Premium Fin. Corp. of Am. v. Crump Ins. Servs.
of Memphis, Inc., 978 S.W.2d 91, 93 (Tenn. 1998). Furthermore, “[w]e presume that every
word in a statute has meaning and purpose and should be given full effect if so doing does
not violate the legislature’s obvious intent.” State v. Casper, 297 S.W.3d 676, 683 (Tenn.
2009).
When the statutory language is clear and unambiguous, we apply the plain meaning
of the statute. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). When
the language is ambiguous, however, we look to the “broader statutory scheme, the history
of the legislation, or other sources to discern its meaning.” Casper, 297 S.W.3d at 683. In
doing so, we must also presume that the General Assembly was aware of the state of the law
at the time it enacted the statute at issue. Id. Finally, statutes relating to the same subject or
having a common purpose should be construed together. Graham v. Caples, 325 S.W.3d 578,
582 (Tenn. 2010) (internal quotation marks omitted).
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In adding the qualified real estate agent exclusion to the Employment Security Law
in 1987, the General Assembly adopted the term “licensed real estate agent” from section
3508 of the Internal Revenue Code. See 26 U.S.C. § 3508(b)(1)(A). The term “licensed real
estate agent,” however, is not defined in section 3508 of the Internal Revenue Code, in
Tennessee Code Annotated section 50-7-207(c)(11), or elsewhere in the Employment
Security Law. Moreover, the Employment Security Law is administered by the Department
of Labor, which does not license real estate agents or determine their qualifications. We
must therefore look beyond the Employment Security Law to determine the meaning of
“licensed real estate agent.”
In Tennessee, individuals who engage in real estate activities are governed by the
Tennessee Real Estate Broker License Act of 1973 (“Real Estate Broker Act”), which is
administered by the Tennessee Real Estate Commission. Act of Apr. 26, 1973, ch. 181, 1973
Tenn. Pub. Acts 524 (codified as amended at Tenn. Code Ann. §§ 62-13-101 to -604 (2009
& Supp. 2013)). The Real Estate Broker Act has historically referred to individuals engaging
in real estate activities as “brokers” and “affiliate brokers” and not as “real estate agents.”
Id. It is clear, however, that the General Assembly intended to exclude a category of services
from the Employment Security Law when it enacted the “qualified real estate agent”
exclusion. To determine which category of services the General Assembly intended to
exclude, we find it helpful to review the history of the Real Estate Broker Act and to examine
the emergence of time-share intervals in real estate activities.
When enacted in 1973, the Real Estate Broker Act defined a “broker” in pertinent part
as
any person who for a fee, commission, finders fee or any other valuable
consideration, or with the intent or expectation of receiving the same from
another, solicits, negotiates or attempts to solicit or negotiate the listing, sale,
purchase, exchange, lease or option to buy, sell, rent, or exchange for any real
estate or of the improvements thereon . . . .
Id. at 525. An “affiliate broker” was defined as “any person engaged under contract by or
on behalf of a licensed broker to participate in any activity included [within the definition of
“broker.”]. Id. at 526. “Real estate” included leaseholds and “any other interest or estate in
land.” Id. at 525. The Real Estate Broker Act required any person who engaged in the real
estate activities defined in the Act to be licensed by the Tennessee Real Estate Commission
as a broker or an affiliate broker. Id. at 524-25. At that time, however, time-share intervals
were not a regulated real estate activity under the Act.
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In 1981, however, the Real Estate Broker Act was amended to add time-share
transactions to the real estate activities conducted by licensed brokers and affiliate brokers.
Act of May 6, 1981, ch. 372, 1981 Tenn. Pub. Acts 514, 529. The amendment of the Real
Estate Broker Act coincided with the enactment of the Tennessee Time-Share Act of 1981
(“Time-Share Act”). Id. at 514 (codified as amended at Tenn. Code Ann. §§ 66-32-101 to
-312 (2004)). The Time-Share Act created time-share “sales agents” who were authorized
to sell time-share intervals and time-share estates as defined in the Time-Share Act.4 Id. at
516. In 1983, the Time-Share Act was amended to specify that all time-share sales agents
were required to be licensed under, and subject to, the Real Estate Broker Act. Act of Apr.
26, 1983, ch. 210, 1983 Tenn. Pub. Acts 337 (amending Tenn. Code Ann.
§ 66-32-102(1982)). The Time-Share Act also authorized the Real Estate Commission to
revoke or suspend “the real estate license of a [time-share] sales agent.” Act of Mar. 21,
1985, ch. 98, 1985 Tenn. Pub. Acts 142, 144. This series of enactments during the 1980s
placed time-share intervals within real estate activity and required those engaged in time-
share transactions to hold a license from the Real Estate Commission.
The General Assembly amended the Real Estate Broker Act in 1989 to add a third
license category for “time-share salesperson[s].” See Act of Mar. 27, 1989, ch. 89, 1989
Tenn. Pub. Acts 121. As amended, the Real Estate Broker Act defined a time-share
salesperson as “any person acting as a seller of any time-share interval under contract with
or control of a licensed real estate broker pursuant to a registered time-share program.” Id.
at 121. See also Tenn. Code Ann. § 62-13-102(15) (providing that licensed brokers and
affiliate brokers are also entitled to sell time-share intervals). The General Assembly’s
creation of this new license category and its alignment of time-share salespersons with
brokers and affiliate brokers in the Real Estate Broker Act further reflect the legislative intent
to treat those individuals who engage in time-share transactions similarly to those conducting
broader real estate transactions.
We can conclude from the historical interrelationship of the Real Estate Broker Act
and the Time-Share Act that the General Assembly views time-share salespersons and
affiliate brokers similarly with respect to the Employment Security Law exclusion. Both
categories of individuals must be licensed by the Real Estate Commission, must perform their
4
The 1981 Act defined “Time-Share Intervals” as a “Time-Share Estate or a Time-Share Use.” 1981
Tenn. Pub. Acts 516. “Time-Share Estate” was described as “an ownership or leasehold estate in property
devoted to a time-share fee (tenants in common, time span ownership, interval ownership) and a time-share
lease.” Id. “Time-Share Use” was defined as “any contractual right of exclusive occupancy which does not
fall within the definition of a ‘Time-Share Estate’ including, without limitation, a vacation license, prepaid
hotel reservation, club membership, limited partnership or vacation bond.” Id.
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services under the control of a broker who actively supervises and trains them, and must meet
their respective educational and training requirements.
We may also presume that the General Assembly was aware of the qualified real
estate agent exclusion when it amended the Real Estate Broker Act in 1989 to include a
separate licensing category for time-share salespersons. See Casper, 297 S.W.3d at 683.
Based on the legislative history of the Real Estate Broker Act and the Time-Share Act, we
conclude that a time-share salesperson is a “licensed real estate agent,” as that term appears
in Tennessee Code Annotated section 50-7-207(c)(11)(A). See Nev. Emp’t Sec. Dep’t. v.
Capri Resorts, Inc., 763 P.2d 50, 52 (Nev. 1988) (examining Nevada’s substantially similar
exclusion and concluding that “the activities of time-share sales agents are clearly analogous
to those of licensed real estate salespersons, and are thus exempt from the definition of
‘employment.’”).
The Board of Review acknowledged that Ms. Vukich-Daw was licensed by the
Tennessee Real Estate Commission but rejected the argument that time-share salespersons
are “licensed real estate agents” as defined by the exclusion because time-share salespersons
have limited licenses and relaxed licensing requirements when compared to brokers and
affiliate brokers. In our view, however, these perceived differences provide no meaningful
distinction between time-share salespersons and affiliate brokers. Although time-share
intervals are a specialized subset within the real estate market, time-share interests fall within
the statutory definition of real estate. Additionally, brokers, affiliate brokers, and time-share
salespersons must be licensed by the Real Estate Commission to engage in the real estate
business. In determining the scope of the qualified real estate agent exclusion, we find no
reason to distinguish these three categories simply because the licensing requirements are not
identical. Ms. Vukich-Daw is a licensed real estate agent and therefore satisfies the first
criterion of the qualified real estate agent exclusion.
B. Paid on Commission
Tennessee Code Annotated section 50-7-207(c)(11)(B) requires that substantially all
of the payment for the services performed by the real estate agent be based on sales or other
output rather than on the number of hours worked. The parties do not dispute that Ms.
Vukich-Daw was paid purely on a commission basis. Although she received a daily draw
as an advance against her anticipated earned commission, her salary was not tied to the
number of hours she worked in a given day, week, or month. Accordingly, the criterion of
subsection 50-7-207(c)(11)(B) has been satisfied.
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C. Services Performed Under a Written Contract
Finally, Tennessee Code Annotated section 50-7-207(c)(11)(C) requires a real estate
agent’s services to be “performed pursuant to a written contract between the individual and
the person for whom the services are performed, and the contract provides that the individual
will not be treated as an employee with respect to the services for federal tax (FUTA)
purposes.”
The record shows that Ms. Vukich-Daw entered into a written agreement to perform
services as a time-share salesperson. The document was entitled “Independent Contractor
Agreement New and Existing Commissioned Sales Agents” and provided that the
independent contractor was being retained to sell interval ownership interests to prospective
purchasers. The agreement further provided that the independent contractor would be
compensated in the manner specified in Exhibit “A.” The document attached to the
agreement is entitled “Affidavit” and contains the following attestations:
1. I have paid all of my own license fees and membership dues.
2. I am responsible for my own automobile and transportation expense,
including insurance, without receiving any remuneration from the
Broker.
3. I have paid all entertainment expenses or other expenses, incidental in
obtaining or selling [sic] clients without receiving any reimbursement.
4. I have not been required by the Broker to maintain any specific
schedule or attend any mandatory sales meetings, nor am I required to
follow special procedures.
5. I may work as I see fir [sic], or not work if I choose. I am not obligated
to have set office or working hours.
6. I may schedule vacations as I please and be off work as I see fit.
7. I have not been required to meet any sales quotas.
8. I have not received no [sic] minimum salary, sick pay or other fringe
benefits.
9. I do not receive instructions from the Broker as to which customers or
property I am to sell.
10. I pay my own income and FICA taxes.
11. I am not required to file reports with the Broker concerning my
business conduct or status of sale.
12. My association with the Broker may be terminated by wither [sic] party
at any time, upon notice given to the other, but the right of the party to
any fees accrued prior to said notice shall now be divested by the
termination of this agreement.
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/s/ Cynthia Vukich Daw
Ms. Vukich-Daw does not dispute that she executed the agreement and the attached
Affidavit. Ms. Vukich-Daw also acknowledges that she received an IRS 1099 Form each
year and was responsible for her own payroll taxes. We therefore conclude that these
documents satisfy Tennessee Code Annotated section 50-7-207(c)(11)(C).
Ms. Vukich-Daw maintains, however, that even if she satisfies section
50-7-207(c)(11)(C), this Court must nonetheless examine the validity of her agreement and
determine, as did the Appeals Tribunal, whether Westgate treated her as an independent
contractor or as an employee. We disagree.
The Appeals Tribunal conducted both the common law and statutory tests for
determining when a worker is an independent contractor or an employee. Both tests are
referenced in the Employment Security Law. See Tenn. Code Ann. § 50-7-207(b)(2)(B)
(indicating that an “included service” under section 207(a)(1) encompasses an individual who
has the status of an employee “under the usual common-law rules applicable in determining
the employer/employee relationship”) and Tenn. Code Ann. § 50-7-207(e)(A)-(C)
(enumerating the elements of the statutory test for independent contractors, which is
commonly referred to as the “ABC” test).5 These tests, however, are applied when
determining whether the services are an “included service” under section 50-7-207(a)(1) and
when the worker’s status as an employee or an independent contractor is relevant in making
that determination.6 When a worker meets the criteria for any category of “excluded service”
5
Tennessee Code Annotated sections 50-7-207(e)(1)(A)-(C) provides that:
Service performed by an individual shall be deemed to be an included service for the
purposes of this section regardless of whether the common law relationship of master and
servant exists, unless and until it is shown to the satisfaction of the administrator that: (A)
The individual has been and will continue to be free from control and direction in
connection with the performance of the service, both under any contract for the performance
of service and in fact; (B) The service is performed either outside the usual course of
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 (C) The individual is
customarily engaged in an independently established trade, occupation, profession or
business of that same nature as that involved in the service performed.
6
The Appeals Tribunal employed the common law and statutory tests and concluded that Ms.
Vukich-Daw was treated as an employee rather than an independent contractor and that she therefore
performed an “included service” under section 50-7-207(a)(1). In doing so, the Appeals Tribunal determined
that Ms. Vukich-Daw’s services did not fall within any category of “excluded service” under section
(continued...)
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under the Employment Security Law, the worker is considered a statutory non-employee, and
any further inquiry is therefore irrelevant. To subject an excluded category of services to this
second tier of scrutiny would render the exclusion meaningless.
In this case, we have examined the findings of the administrative tribunals, the
chancery court, and the Court of Appeals. We must ultimately decide, however, if the Board
of Review’s findings were based on an incorrect interpretation and application of Tennessee
Code Annotated section 50-7-207(c)(11). Because we have determined that a time-share
salesperson is a licensed real estate agent under section 50-7-207(c)(11)(A), we must
conclude that the Board’s decision to the contrary was in error. We further conclude that the
administrative tribunals’ factual findings and legal conclusions relating to the application of
the common law or statutory tests for determining whether a worker is an employee or an
independent contractor are irrelevant and have no bearing on our determination of the
applicability of Tennessee Code Annotated section 50-7-207(c)(11).
III. Conclusion
We conclude that a time-share salesperson is a licensed real estate agent within the
Employment Security Law’s “qualified real estate agent” exclusion. We further conclude that
Ms. Vukich-Daw satisfied the exclusion’s criteria and therefore is a qualified real estate
agent. As a result, Ms. Vukich-Daw’s services do not meet the Employment Security Law’s
definition of employment, and Ms. Vukich-Daw is ineligible to receive unemployment
compensation benefits. We therefore reverse the judgment of the Court of Appeals and
reinstate the judgment of the chancery court. The costs of this appeal are taxed to Ms.
Vukich-Daw for which execution may issue if necessary.
JANICE M. HOLDER, JUSTICE
6
(...continued)
50-7-207(a)(2). Because “employment” within the Employment Security Law requires that all three
conditions be satisfied, our finding that Ms. Vukich-Daw performed excluded services as a “qualified real
estate agent” is dispositive.
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