Appeal of Work-A-Day of Nashua, Inc., WORK-A-DAY

• Decision Date: 09 October 1989
• Docket Number: WORK-A-DAY,No. 88-106,88-106
• Citation: 564 A.2d 445,132 N.H. 289
• Parties: Appeal ofOF NASHUA, INC. (New Hampshire Department of Employment Security).
• Court: New Hampshire Supreme Court

Page 445

564 A.2d 445

132 N.H. 289

Appeal of WORK-A-DAY OF NASHUA, INC. (New Hampshire Department of Employment Security).

No. 88-106.

Supreme Court of New Hampshire.

Oct. 9, 1989.

Wiggin & Nourie, Manchester (Diane M. Smith, on the brief, and Stephanie A. Bray, orally), for Work-a-Day of Nashua, Inc.

Stephen E. Merrill, Atty. Gen. (David S. Peck, Asst. Atty. Gen., on the brief and orally), for the State.

THAYER, Justice.

This is an appeal by Work-a-Day of Nashua, Inc. (Work-a-Day) from a decision of the New Hampshire Department of Employment Security (DES) denying Work-a-Day's appeal from an assessment for unpaid unemployment compensation taxes, fees, and interest. Work-a-Day asserts that the decision by the DES violates RSA 282-A:9 and is erroneous in view of the record. For the reasons that follow, we affirm the decision of the DES.

Work-a-Day is in the business of placing temporary unskilled workers with various firms. The workers usually perform heavy labor in warehouses and factories. The workers come to Work-a-Day in the mornings, obtain a time slip, and are transported to their appointed job sites. Once at the job, the workers give their time slips to the supervisor, who instructs them as to their jobs. At the end of the day, the supervisor completes the time slips and returns them to the workers. When the workers return to Work-a-Day, they hand in their time slips and are paid for the work they performed that day. Work-a-Day then bills its clients for the number of hours the laborers worked, plus a commission for placing the workers. Work-a-Day advertises its service of placing temporary workers in a brochure which Work-a-Day mails to various companies in the State. In the brochure, Work-a-Day assures its prospective client-companies that it will take care of up to 90% of the bookkeeping, and that the clients will never have to worry about paying workers' compensation, health insurance, or deducting social security from the workers' wages if the clients take advantage of Work-a-Day's placement service.

Under the unemployment compensation statute, RSA chapter 282-A, employers are obligated to contribute each calendar year a percentage of the amount of wages paid to employees to the DES commissioner, which is added to the unemployment compensation fund. RSA 282-A:69, I. Work-a-Day had not been paying unemployment compensation contributions for these temporary workers, and it received a tax assessment of $17,766.10 from the DES on April 28, 1987. On May 12, 1987, Work-a-Day appealed this assessment, and a hearing was held before the DES Administrative Hearing Committee on November 4, 1987. From the evidence presented at that hearing, the DES concluded that for purposes of RSA 282-A:9, the workers are employed at Work-a-Day and that Work-a-Day is required to prepare, file, and pay amended tax reports. Work-a-Day filed a motion to reconsider, which was denied on February 17, 1988. From that decision, it appeals to this court pursuant to RSA 282-A:97, RSA 282-A:67 (Supp.1988), RSA 541:6, and Supreme Court Rule 10.

Before this court, Work-a-Day argues that it does not "employ" the workers at issue and, therefore, is not required to make unemployment compensation contributions. Work-a-Day further asserts that the findings of the DES are clearly erroneous in view of the evidence in the record.

We first note that in reviewing the decisions of the DES, we will not substitute our judgment for that of the DES regarding the weight of evidence on questions of fact. Appeal of Boudreault, 123 N.H. 332, 334, 461 A.2d 121, 122 (1983); RSA 282-A:67, V (Supp.1988). Furthermore, we will "uphold the department's decision unless its findings or conclusions were unauthorized, affected by an error of law, or clearly erroneous in view of all the evidence presented." Boudreault, 123 N.H. at 334, 461 A.2d at 122-23; see RSA 282-A:67, V (Supp.1988).

According to the unemployment compensation statute, "[s]ervices performed by an individual for wages shall be deemed to be employment subject to this chapter," unless the employing unit demonstrates that three requirements are satisfied. RSA 282-A:9, III. These three requirements are that:

"(a) 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

"(b) 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

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

RSA 282-A:9, III. The burden is on the employing unit to satisfy the DES commissioner that all three requirements are met, Boudreault, 123 N.H. at 333, 461 A.2d at 122, and if the employing unit fails to establish any of these three requirements, it is deemed to employ the worker for purposes of RSA chapter 282-A. See RSA 282-A:9, III.

In the decision by the Administrative Hearing Committee, the DES found that Work-a-Day did not satisfy any one of the three requirements. In particular, the DES found that RSA 282-A:9, III(c) was not satisfied because "[t]he individual workers furnished by Work-a-Day are unskilled. They do not work in an independently-established trade, occupation, profession, or business. They are paid by the hour by Work-a-Day."

Work-a-Day argues that this finding is erroneous. It asserts that the workers clearly engage in a trade independent from Work-a-Day's...