Appeal of Hendrickson's Health Care Service

• Decision Date: 20 September 1990
• Docket Number: No. 16994,16994
• Parties: In the Matter of the Appeal of HENDRICKSON'S HEALTH CARE SERVICE. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 655

462 N.W.2d 655

In the Matter of the Appeal of HENDRICKSON'S HEALTH CARE SERVICE.

No. 16994.

Supreme Court of South Dakota.

Considered on Briefs Sept. 20, 1990.

Decided Nov. 14, 1990.

Rory M. Barth of Lacey & Barth, Sioux Falls, for appellant.

Drew C. Johnson, Aberdeen, for appellee South Dakota Dept. of Labor.

WUEST, Justice.

Hendrickson's Home Health Care Service (HHCS) appeals an order of the circuit court which affirmed the determination of the South Dakota Department of Labor, Unemployment Insurance Division that HHCS was liable for unemployment insurance contributions. We affirm.

In an administrative appeal, we review the agency record in the same light as does the trial court. SDCL 1-26-37; In Matter of Application of Northwestern Bell Telephone Company, 382 N.W.2d 413, 416 (S.D.1986); In Matter of Application of Koch Exploration Company, 387 N.W.2d 530, 536 (S.D.1986) (Fosheim, C.J., dissenting). Deference is accorded an agency's factual determination, and we review the record to determine whether the agency's findings of fact are clearly erroneous in light of all the evidence in the record. SDCL 1-26-36; Karras v. State, Dept. of Revenue, 441 N.W.2d 678, 679 (S.D.1989); Sharp v. Sharp, 422 N.W.2d 443, 447 (S.D.1988) (Morgan, J., concurring specially; Henderson, J., dissenting); Permann v. South Dakota Dept. of Labor, Unemployment Insurance Division, 411 N.W.2d 113, 115-17 (S.D.1987) (Henderson, J., concurring in result). Conclusions of law, however, are given no deference on appeal and are freely reviewable. SDCL 1-26-36; Karras, supra, at 679; Sharp, supra, at 447; Permann, supra, at 115-17. Likewise, mixed law-fact questions which require us to apply a legal standard are reviewed as are questions of law: de novo. In Matter of Groseth International, Inc., 442 N.W.2d 229, 232 (S.D.1989) (Sabers, J., concurring in part and concurring specially in part); South Dakota Stockgrowers Assn., Inc. v. Holloway, 438 N.W.2d 561, 563 (S.D.1989); Permann, supra, at 119. With these standards of review in mind, we address the factual findings of the unemployment insurance division in this case.

Hendrickson's Home Health Care Services, Inc., is a South Dakota Corporation in the business of providing in-home nursing services. HHCS advertises its services in the newspaper and the telephone directory, and also receives referrals from hospitals, doctors, clinics, and social services. Typically, prospective clients contact HHCS requesting home-care and nursing services and inform HHCS of the level of care required. HHCS maintains a list of nurses and nurse's aides who possess varying degrees of nursing skill. Upon receiving a request for services, HHCS consults the list and contacts those individuals with sufficient skills for a referral. The care provider may accept or reject the referral by HHCS. Care providers are not removed from the list if they merely reject a referral. Once the referral is accepted, the client and the care provider establish the work schedule and the duties to be performed.

HHCS and the client then enter into an agreement which specifies the number of hours of care and the hourly rate the client will pay HHCS for the services of the care provider. HHCS bills the client for these services and collects the fee from the client. Clients are charged $5.00 per hour for unskilled nursing and $7.75 per hour for skilled nursing. Care providers are paid weekly by HHCS and receive $3.90 per hour for unskilled nursing and $6.25 for skilled nursing. The care provider is paid each week regardless of whether the client has paid HHCS. No income tax or social security is deducted from the care providers' checks. The compensation paid to the care providers is reported to the Internal Revenue Service on Form 1099. Although HHCS sets the rate of pay, care providers are free to negotiate a different rate of pay with the client.

HHCS does not guarantee or require any particular number of hours of work, nor does HHCS supervise the care providers day-to-day activities in the client's home. Typically, when a care provider is unable to work a scheduled shift, she informs HHCS and HHCS finds a replacement. Occasionally, a care provider locates her own replacement. In the latter case, HHCS is contacted to insure the replacement is paid and the bill is correct. Although care providers are free to hire their own assistants, there was no evidence that any care provider did so.

Standard forms for charting nurse's notes are provided by HHCS. These forms are filed with HHCS so that the client's doctor or the client's family may review the care provided and the client's condition. Name tags with HHCS's name on them are also furnished by HHCS to the care providers. HHCS furnishes no equipment or training for the care providers. In addition, the care providers pay their own insurance and any other expenses associated with the referral.

The care provider and HHCS sign a document entitled, "Subcontractor's Responsibilities," which requires the care provider:

(1) Wear white or blue uniforms unless otherwise instructed.

(2) Not smoke on the job without the client's permission.

(3) Not work extra hours or change hours unless it is cleared with HHCS. The care provider must give HHCS three hours notice if she is unable to work her scheduled shift. A care provider who does not show up for her shift or call in is subject to dismissal.

(4) Chart in nursing notes every shift and sign every entry.

(5) Not give medication if the care provider is a nurse's aide.

(6) Provide her own lunch.

(7) Leave the home cleaner then when she arrived.

(8) Have $4.00 deducted from her first check to pay for a name tag.

(9) Carry her own liability insurance.

(10) Not accept gifts from the client.

(11) Not work for any current or past client of HHCS for ninety days after termination.

(12) Never give out phone numbers of the clients or care providers.

(13) Is subject to dismissal for violating the above suggestions.

Care providers are not restricted by HHCS from engaging in outside employment, including private nursing. One of HHCS's listed care providers, who testified at the administrative hearing, did private nursing on her own for three months prior to starting to work for HHCS in January 1986. Since that time, she has worked exclusively for HHCS, except for seasonal work as a ticket-taker at a race track. Another of HHCS's listed care providers was employed as a nurse's aide in a nursing home for one year and provided nurse's aide services in her own home to an elderly man for four years prior to starting to work through HHCS in 1984. Since that time, she has not sought or accepted nurse's aide work other than the referrals she receives from HHCS. She also has a baby-sitting service three days per week and is able to arrange her nurse's aide work around the baby-sitting hours. Three other of HHCS's listed care providers had outside jobs while working through HHCS. One of them was employed as a nurse's aide somewhere else while she accepted referrals through HHCS. However, no listed care providers advertised or operated a business, independent of the referrals provided by HHCS, in the area of home health care services while accepting referrals through HHCS. Indeed, no evidence was presented to indicate that the care providers hold themselves out to the public as engaged in independent business, advertise their home health care services, have any clientele independent from that provided by HHCS, have any business premises or business cards, have any substantial investment in HHCS, nor have any going business to sell.

The factual findings of the agency are not questioned in this appeal, and having found support for such findings in the record, we cannot say the agency's factual determinations were clearly erroneous. Under the facts presented, the agency concluded as a matter of law that:

(1) The care providers performed services for HHCS for wages, and HHCS therefore has covered employment under the South Dakota Unemployment Insurance Law;

(2) The care providers were not free from control or direction in the performance of their service. HHCS retained the right to direct and control their services;

(3) The care providers were not customarily engaged in an independently established trade, occupation or business; and,

(4) The care providers are employees of HHCS, not independent contractors, and therefore, HHCS is liable for contributions to the unemployment compensation fund. ¹

HHCS contends they are merely providing referral and billing services to the care providers for which a fee is charged, and that such fee is retained from each client payment. Consequently, the care providers are not HHCS employees, but are independent contractors, and therefore, HHCS is not required to contribute to the state's unemployment insurance fund. We are thus presented with a mixed question of law and fact: "the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard[.]" Permann, 411 N.W.2d at 118 (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 1790 n. 19, 72 L.Ed.2d 66, 80 n. 19 (1982). As we initially acknowledged, mixed law-fact questions are freely reviewable.

SDCL 61-1-11 distinguishes employees and independent contractors for purposes of unemployment insurance tax liability.

Service performed by an individual for wages is employment subject to this title unless and until it is shown to the satisfaction of the department of labor that:

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

. . . . .

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

SDCL 61-1-11. In applying this test, the burden is upon the agency to show that the alleged employees...