Fleece on Earth v. Department of Employment & Training

Skoglund, J.

¶ 1. Fleece on Earth (FOE) appeals from an Employment Security Board decision which held that the workers who make clothing for FOE are employees for purposes of assessing unemployment taxes on FOE. FOE contends that the Board erred in determining that the home knitters and sewers qualified as employees for this purpose. We affirm the decision while rejecting one part of the Board’s analysis.

¶ 2. FOE is a children’s wear company that retails children’s clothing. FOE’s owner designs all of the clothing sold by FOE. FOE’s products are made by knitters and sewers who work at home and are paid by the piece. FOE provides the patterns and yarn for the knitters and patterns and pre-cut fabric for the sewers. The knitters and sewers work on their own machines, at their own pace. FOE sets the price per piece, but some workers have negotiated higher prices. Most of the sewers and knitters present FOE with a bill each month, detailing the number of items completed and how much FOE owes for the work. FOE retains the right to reject pieces that do not conform to its specifications.

¶ 3. The company came to the attention of the Department of Labor and Industry (the department) when one of FOE’s knitters filed for unemployment benefits when she left another job. As part of the application process, she listed FOE as one of her employers. The department determined that FOE owed back taxes for its contract knitters and sewers. FOE contested the determination, and the case went to a hearing before an administrative law judge (ALJ). The ALJ upheld the department’s assessment of contributions. FOE appealed to the Employment Security Board. The Board corrected the ALJ on one conclusion but affirmed the determination in all other respects. FOE appeals.

¶ 4. We review determinations by the Employment Security Board with a great degree of deference. The Board’s decision is “entitled to great weight on appeal.” Cook v. Dep’t of Employment & Training, 143 Vt. 497, 501, 468 A.2d 569, 571 (1983). To the extent that the appeal challenges the Board’s findings, the Court construes the record in a manner most favorable to the Board’s conclusions, Harrington v. Dep’t of Employment Sec., 142 Vt. 340, 344, 455 A.2d 333, 336 (1982), and affirms the Board’s findings if they are supported by credible evidence, “even if there is substantial evidence to the contrary.” Cook, 143 Vt. at 501, 468 A.2d at 571. We must uphold the Board’s judgment absent a clear showing that it is mistaken. Bouchard v. Dep’t of Employment & Training, 174 Vt. 588, 589, 816 A.2d 508, 510 (2002) (mem.) (decisions within the Board’s expertise “presumed to be correct, valid, and reasonable” absent “clear showing to the contrary”).

I.

¶ 5. This case illustrates the tension between the protection of unemployment compensation for workers and the economic realities faced by small businesses that utilize the services of home workers. We begin with a review of the purpose of Vermont’s law on unemployment compensation. Chapter 17 of Title 21, Vermont’s Unemployment Compensation Law, was first enacted in 1936. It is a remedial law, having benevolent objectives, and must be given liberal construction. Littlefield v. Dep’t of Employment & Training, 145 Vt. 247, 253, 487 A.2d 507, 510 (1984); Jones v. Dep’t of Employment Sec., 140 Vt. 552, 554, 442 A.2d 463, 464 (1982). The law is designed “to remove economic disabilities and distress resulting from involuntary unemployment,... and to assist those workers who become jobless for reasons beyond their control.” Donahue v. Dep’t of Employment Sec., 142 Vt. 351, 354, 454 A.2d 1244, 1246 (1982). Therefore, “no claimant should be excluded unless the law clearly intends such an exclusion.” Jones, 140 Vt. at 554, 442 A.2d at 464.

¶ 6. In this case, no worker made a claim against FOE; rather, the department began an investigation pursuant to the powers bestowed in chapter 17 of Title 21, and made an assessment of contributions as provided in § 1330. It is the employer herein, FOE, who contests the applicability of the unemployment compensation law to its operations.

¶ 7. All persons who receive wages, as defined by 21 V.S.A. § 1301(12), from an employer, as defined by § 1301(5), are presumed to be employees under § 1301(6)(B) and are therefore entitled to unemployment benefits. There is no dispute in this case that FOE pays wages to the home knitters and sewers. To rebut this pi'esumption, and avoid responsibility for unemployment compensation assessments, an employer must prove that its workers meet all three elements of the statutory exception commonly known as the ABC test. 21 V.S.A. § 1301 (6)(B); State v. Stevens, 116 Vt. 394, 398, 77 A.2d 844, 847 (1951). The failure of any one part of the test compels the conclusion that an employer-employee relationship exists. Vt. Inst. of Cmty. Involvement, Inc. v. Dep’t of Employment Sec., 140 Vt. 94, 98, 436 A.2d 765, 767 (1981).

¶ 8. Section 1301(6)(B) of Title 21 describes the test:

Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the commissioner that:

(i) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and

(ii) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

(iii) Such individual is customarily engaged in an independently established trade, occupation, profession or business.

The language of this section has not changed since 1937.

¶ 9. As noted, the test is in the conjunctive, and thus, the “enterprise” must satisfy all three sections to avoid being subject to the requirements of the unemployment compensation law. Stevens, 116 Vt. at 397, 77 A.2d at 846. The Board found that, because FOE provides the patterns and material and may reject nonconforming products, the workers creating the products are subject to FOE’s direction and control, and thus, FOE could not satisfy part A of the ABC test. The Board found that FOE had demonstrated that none of the workers worked in FOE’s usual place of business, thus satisfying the second prong. With regard to the third prong, the Board determined that FOE could not prove that three of the six workers operated independently established businesses. Thus, the Board concluded that FOE failed to prevail on two of the three prongs of the ABC test.

II.

¶ 10. In evaluating the first part of the test, the ALJ and the Board considered the amount of control FOE exercised over the final product. This, FOE argues, was in error. The statute states that the amount of “control or direction over the performance of such services” will determine whether the worker is an employee. 21 V.S.A § 1301(6)(B)(i) (emphasis added). FOE argues that the workers are free to work whatever hours and days they choose, and they can work as much or as little as they want. FOE notes that all of the workers invested in their own equipment, and either trained themselves or received training from sources other than FOE. It argues that the fact that FOE required the workers to conform to certain standards should not, in and of itself, turn them into employees rather than independent contractors. FOE contends that the Court should look to the common law master-servant guidelines to assist in determining when a worker is subject to an employer’s direction and control. Without guidance from the common law, FOE asserts, there is simply no worker who is not an employee. FOE and the amici warn that the danger in this part of the test is that once an employer gives a worker any specific direction, the employer may become liable for unemployment taxes.

¶ 11. Part A of the test examines the degree of control and direction retained by the employing entity over the services performed. This Court has consistently held that the statutory scheme at issue here is broader than the common law master-servant relation, and it draws into its sweep workers who might be independent contractors under the common law. Stevens, 116 Vt. at 397-98, 77 A.2d at 847; see also Bluto v. Dep’t of Employment Sec., 135 Vt. 205, 208, 373 A.2d 518, 520 (1977); Vt. Sec., Inc. v. Vt. Unemployment Compensation Comm’n, 118 Vt. 196, 200, 104 A.2d 915, 917 (1954). The essence of the distinction at common law has always been the right to control the details of the performance — the right to specify the means and methods used in the performance of the work — rather than simply the result. Rich v. Holmes, 104 Vt. 433, 437, 160 A. 173, 174 (1932); Thomas v. United States, 204 F. Supp. 896, 898 (D. Vt. 1962). However, the control or direction element of the statutory ABC test is not the same as the common law “control” test for independent contractors. Vt. Inst. of Cmty. Involvement, 140 Vt. at 100, 436 A.2d at 768. Our case law tells us that the common law master-servant doctrine does not resolve the issue. Stevens, 116 Vt. at 398, 77 A.2d at 847.

¶ 12. For example, the Court found that adjunct faculty members at a college were “employees,” even though the faculty members developed their own course descriptions, set the time and place of instruction, rarely taught at a location provided by the employer, and were paid based on the number of students enrolled in their classes. Vt. Inst. of Cmty. Involvement, 140 Vt. at 98-99, 436 A.2d at 767. The college’s practice of approving course descriptions and requiring (1) a minimum number of hours for each class, (2) written evaluations of the students at the end of each course, and (3) attendance at a few meetings during the school year were sufficient indicia of control to defeat the college’s reliance on the ABC test. Id. There was no discussion of the manner and means of the “performance” of their teaching tasks.

¶ 13. To support its position that the control test in part A is essentially the common law master-servant test, FOE cites Athol Daily News v. Board of Review of Division of Employment & Training, 786 N.E.2d 365 (Mass. 2003), in which the newspaper employer appealed from the Board’s finding that newspaper deliverers were eligible for unemployment compensation benefits. There, the Massachusetts Supreme Judicial Court, examining a similar ABC statutory test, noted that, “notwithstanding that the worker could be considered an independent contractor under common law, the worker may still be deemed an employee for purposes of [the statute].” Id. at 371 n.10. However, it went on to hold that the newspaper did not exercise control and direction over the carriers’ delivery of newspapers. “The record demonstrates that the carriers pick up and deliver the newspapers however they wish.” Id. at 371. We reached the opposite conclusion in Times-Argus Ass’n v. Department of Employment & Training, 146 Vt. 320, 503 A.2d 129 (1985), as is discussed below.

¶ 14. Similarly, FOE relies on Carpet Exchange of Denver, Inc. v. Industrial Claim Appeals Office, 859 P.2d 278 (Colo. Ct. App. 1993), for its claim that the common law control test for distinguishing servants from independent contractors should apply. While recognizing that the definition of employment under the Colorado Employment Security Act was broader than the common law master-servant relationship, id. at 281, the Colorado Court of Appeals held that the fact that floor plans or diagrams were given to carpet installers did not amount to general control over the means of doing the work, but rather defined “the job to be done or the result to be accomplished.” Id. After considering other job requirements imposed by the employer, the court found that carpet installers were free from control and direction of the carpet retailer over the means and methods of their work. Id. at 282.

¶ 15. In contrast to a carpet retailer who pays workers to install its product, FOE’s only business is designing and selling hand-made children’s clothing, and this business cannot be conducted without the services performed for it by the home knitters and sewers. Every piece of clothing sold by FOE is produced by the home knitters and sewers. At the hearing before the Board, the owner of FOE was asked, “If these people weren’t doing this knitting for you, what would your business be?” to which she answered, “I guess I would be retailer selling — goodness, I don’t know.”

¶ 16. This Court liberally construes part A of the ABC test. In In re Bargain Busters, Inc., salesmen hired by a company to sell advertising space in a weekly paper were paid a commission on advertising. They signed an agreement with the company, the terms of which provided that the agent “represent[ed] him/herself as an independent sales agent and, in no manner whatsoever [was] to be considered as an employee or agent of the ‘Shopper’ and therefore [was] not covered by Federal Social Security or State Unemployment Acts or any other benefits normally associated with that of an employee.” 130 Vt. 112, 113, 287 A.2d 554, 556 (1972). The salesmen were not required to work regularly but could “spend as much, or as little, time as their ambition dictates.” Id. at 114, 278 A.2d at 556-57.- We held that “the salesmen were performing personal services for remuneration” and that the facts appearing in the employment contract and the evidence concerning the entire relationship between the company and salesmen justified a finding of control within the meaning of part A. Id. at 117, 287 A.2d at 558.

¶ 17. The Unemployment Compensation Act seeks to protect workers and envisions employment broadly. The degree of control and direction over the production of a retailer’s product is no different when the sweater is knitted at home at midnight than if it were produced between nine and five in a factory. That the product is knit, not crocheted, and how it is to be knit, is dictated by the pattern provided by FOE. To reduce part A of the ABC test to a matter of what time of day and in whose chair the knitter sits when the product is produced ignores the protective purpose of the unemployment compensation law.

¶ 18. Amici argue that in our modern economy independent contractors serve a variety of functions that are not easily performed by employees. They are a resource for owners of small businesses who need to hire someone with a skill that is needed by the business for a short period of time or on an occasional basis. While true, this description does not describe the workers FOE employs to create the only products FOE sells. The business needs these skills continually, not on an occasional basis. These workers are fundamental to the business.

¶ 19. Other jurisdictions have concluded that industrial home workers, in the garment industry and otherwise, are subject to the control or direction of their employers and are covered by unemployment compensation laws. One of the earliest reported cases is Andrews v. Commodore Knitting Mills, Inc., 13 N.Y.S.2d 577 (App. Div. 1939). There the New York court found that workers knitting garments in their homes using the employer’s raw materials and the workers’ equipment were employees because “some supervision [was] exercised over the workers by [the employer], such as the manner in which the work [was] to be performed coupled with the right of [the employer] to hire and discharge the workers.” Id. at 578. The court rejected the argument that the home workers were independent contractors because they were “not subject to supervision at all times,” noting that the “very nature of the work [did] not permit constant supervision.” Id.

¶ 20. The Supreme Court of Illinois reached the same result not long after Andrews. In Peasley v. Murphy, the court found control or direction over home sewers where they used the employer’s materials and had to work at a particular pace. 44 N.E.2d 876, 879 (Ill. 1942). Again, the lack of complete supervision did not change the result as “the nature of their work precluded” such supervision. Id. at 880.

¶ 21. Today, the image of an employee is not the same as it was when the unemployment compensation law was enacted. The demands of parenthood, communications-technology advances, issues of energy consumption, and other circumstances have created a new type of employee — one who works from her home or car, enjoying flexibility in the time and place of performance. Presumably, these employees can do their work in bed, while talking with a friend or while watching TV, circumstances that, FOE contends, defeat any argument that it controls the performance of the knitters’ work. The argument is overbroad, as it would remove from unemployment coverage all workers who work in their homes or have discretion over their schedules. When knitters knit a sweater for FOE, they perform a unique job for one certain company. They are employees producing the specific product the company sells under the direction and control of FOE. Thus, the Board’s decision is consistent not only with the statute and this Court’s precedents, but also with the remedial purpose of the unemployment laws. The Board’s decision that FOE cannot satisfy part A of the ABC test is reasonable, and we affirm.

¶ 22. As an aside, we note that in Times-Argus Ass’n this Court affirmed the Board’s assessment of unemployment compensation contributions for rural route delivery drivers based on part B of the test rather than part A. 146 Vt. at 323-24, 503 A.2d at 131. The newspaper claimed that the services performed by the drivers were not “employment” within the meaning of the Unemployment Compensation Act. We noted the lack of any evidence to support the employer’s assertion that the delivery or distribution of its newspapers was outside the usual course of its business, part B of the ABC test, and affirmed the Board’s conclusion that “there [was] no question but that [employer’s] business [was] the publication, circulation and distribution of a newspaper.” Id. Applying this Court’s interpretation of part B to the case before us, it would seem that the service performed by the home knitters and sewers is not “outside the usual course of the business for which such service is performed.” On the contrary, it is the key component of the apparel business for which the service is performed. See Vt. Inst. of Cmty. Involvement, 140 Vt. at 99, 436 A.2d at 767. Because we affirm as to part A we need not decide the case on part B; we merely note here that these cases suggest that FOE might not meet part B either.

III.

¶ 23. Notwithstanding the fact that affirmation of part A of the ABC test resolves the question, we discuss the Board’s conclusions concerning part C of the test to further inform this decision.

¶ 24. Part C addresses whether the worker is “customarily engaged in an independently established trade, occupation, profession or business.” 21 V.S.A. § 1301(6)(B)(iii). The Board upheld the ALJ’s finding that two of the workers in question were not so engaged, primarily because one of them worked as an employee for another Vermont company that contracts out its sewing, and another worked forty hours a week as a respite care worker.¹ The Board found that FOE failed to present evidence that these two workers were engaged in independent trade. The Board adopted the ALJ’s findings of fact on this point. The ALJ found that the individuals working for FOE had all invested significant sums in the equipment they used and that they “owned the equipment prior to any contact with FOE.” Despite these capital investments, the ALJ concluded, and the Board agreed, that these workers could not have their own businesses if they were also forty-hour-a-week employees for other entities.

¶ 25. We question this logic. Nothing in the statute requires the workers to be engaged full-time in their independent business or trade. See 21 V.S.A. § 1301 (6)(B)(iii). Indeed, there is no evidence regarding the number of hours that the other workers devoted to their knitting and sewing for FOE, or whether they had other employment in addition to their knitting and sewing work. Furthermore, the presumption that there are only forty hours available in every work week ignores the fact that many people work more than one so-called “full-time” job simply to make ends meet.

¶ 26. More importantly, the section requires workers to be “independently established providing the same or similar services as they provide for the employer.” Vt. Inst. of Cmty. Involvement, 140 Vt. at 100, 486 A.2d at 768. Respite care work is not similar to the work done for FOE, and it was error for the Board to consider it in deciding this issue. Further, the evidence that this worker owned her own equipment and had knitted for other companies and individuals in the past is evidence that she would meet part C of the test. The ALJ found that the second worker had done contract sewing similar to the contract sewing she does for FOE. Rather than disqualifying her from being engaged in independent business, this information tends to show that she is by trade a seamstress and, therefore, that she too would meet part C of the test. While the Court owes deference to the Board, we are not bound by an erroneous construction of the law. Bouchard, 174 Vt. at 589, 816 A.2d at 510. We would hold that the facts as found by the Board regarding these two women would satisfy part C of the test. However, because the ABC test is conjunctive, this holding is not dispositive.

¶ 27. The employer bears the burden of proof, and FOE’s failure to demonstrate that it does not exercise direction and control in the performance of the work suffices to establish that the services in question constitute “employment” within the meaning of unemployment compensation law. The decision of the Board is affirmed.

¶ 28. As noted above, our perception of the work week and the work place have changed significantly since the language of the ABC test was crafted seventy-one years ago. The legislative attempt to draw a distinction between employees and independent contractors may have sufficiently covered existing practices when the statutes were enacted, but given the current multiplicity of working relationships, it is extremely difficult to fashion a single test by which every worker’s status can be determined. It may be that the ABC test no longer appropriately protects workers without unfairly burdening employers and hindering flexible employment practices. For example, part B, that the workers do not work in the employer’s usual place of business, would appear to be meaningless in today’s telecommuting world. The Legislature long ago drafted a benevolent statute to protect workers. If that statute now limits opportunity for workers, it is up to the Legislature to decide whether the statute should be adjusted to accommodate current employment trends.

Affirmed.

1 As noted above, the Board’s decision concerned a third worker who also did not pass part C. On appeal FOE does not appear to contest this aspect of the Board’s determination, and therefore, the Court will not address the evidence as to this worker.