Jason Robert's Inc. v. Adm'r

• Decision Date: 12 April 2011
• Docket Number: No. 31256.,31256.
• Citation: 127 Conn.App. 780,15 A.3d 1145
• Court: Connecticut Court of Appeals
• Parties: JASON ROBERT'S, INC.v.ADMINISTRATOR, Unemployment Compensation Act, et al.

127 Conn.App. 780

15 A.3d 1145

JASON ROBERT'S, INC.

v.ADMINISTRATOR, Unemployment Compensation Act, et al.

No. 31256.

Appellate Court of Connecticut.

Submitted on Briefs Dec. 7, 2010.Decided April 12, 2011.

Stuart Hawkins and Daniel Shepro, Stratford, filed a brief for the appellant (plaintiff).Richard Blumenthal, former attorney general, and Philip M. Schulz and Richard T. Sponzo, assistant attorneys general, filed a brief for the appellee (named defendant).GRUENDEL, LAVINE and ROBINSON, Js.ROBINSON, J.

The plaintiff, Jason Robert's, Inc., appeals from the judgment of the trial court affirming the decision of the employment security board of review (board), which found that the plaintiff was liable for unemployment compensation contributions with regard to the claimant, Michael Derose.¹ We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiff is a concrete business. During the years 1998, 1999 and 2000, the plaintiff employed Derose as a concrete artisan. While Derose was working for the plaintiff as an employee, he asked for a raise in salary. In order to give Derose the potential to earn more money, the plaintiff directed Derose to set up a business so that he could enter into an agreement with the plaintiff as a licensed dealer. In or about 2001, after Derose had set up his own business, the plaintiff presented him with a licensed dealer authorization (agreement), and, on May 4, 2001, Derose signed the agreement and became a licensed dealer for the plaintiff.

The agreement provided the following: the plaintiff would do all of the scheduling when a job was sold on its contract; Derose had to contact the plaintiff on a daily basis for a status report on each job; Derose had to purchase the plaintiff's uniforms and wear the uniform each day; the plaintiff retained the right to cancel the agreement if Derose engaged in certain conduct, which included, inter alia, use of drugs, use of alcohol during the workday, intoxication on the job, continued absence or tardiness, failure to meet installation goals and insubordination; Derose had to notify the plaintiff one hour prior to his normal arrival time if he was to be absent on that day; Derose had to lease a truck from the plaintiff and was required to maintain the truck, which included waxing the exterior of the vehicle and cleaning the interior of the vehicle; and Derose could not compete, directly or indirectly, with the plaintiff for the term of the agreement and for a period of two years thereafter.

Derose was a licensed dealer of the plaintiff during the years 2001 and 2002. During those years, the plaintiff classified Derose as an independent contractor. At the end of 2002, Derose terminated the agreement because the arrangement had become unprofitable for him. After terminating the agreement, Derose filed a claim for benefits under the Unemployment Compensation Act, General Statutes § 31–222 et seq. (act). This claim for benefits caused the defendant, the administrator of the act, to issue a missing wage assignment. Pursuant to the missing wage assignment, Robert E. Stern, a field auditor of the employment security division of the state department of labor, requested that the plaintiff make available its books and records for an audit. On April 25, 2003, after Stern had conducted his audit, he issued his written report, wherein he concluded that Derose was an employee during the years 2001 and 2002. In a letter dated April 29, 2003, the defendant informed the plaintiff of this determination and that there would be an assessment for the contributions due in the amount of $4366.03 plus interest. On May 16, 2003, the plaintiff appealed this determination to the appeals division, and, on April 17, 2007, a hearing was held before an appeals referee. On September 12, 2007, after having made extensive findings of fact, the appeals referee affirmed the determination. In its decision, the appeals referee applied § 31–222(a)(1)(B)(ii),² more commonly

[15 A.3d 1148 , 127 Conn.App. 784]

known as the “ABC test,” to its extensive factual findings and concluded that Derose was an employee of the plaintiff. The referee reached this conclusion after having determined that the plaintiff failed to satisfy any of the three prongs of the ABC test.

On September 20, 2007, the plaintiff appealed the decision of the appeals referee to the board pursuant to General Statutes § 31–249. ³ On appeal, the plaintiff claimed that the appeals referee had failed to consider the issue of whether a franchise agreement existed between it and Derose pursuant to General Statutes § 42–133e (b). Additionally, the plaintiff claimed that, as a matter of law, a finding that a franchise agreement existed would have removed the relationship between it and Derose from the operation of the act. On November 2, 2007, the board modified and adopted the appeals referee's findings of fact, affirmed the decision and dismissed the plaintiff's appeal. In its decision, the board declined to make a finding as to whether a franchise agreement existed between the plaintiff and Derose. The board concluded that, even if a franchise agreement did exist, the ABC test governed the question of whether Derose was an employee as defined by the act. Having determined this, the board then concluded that the plaintiff had failed to satisfy any of the prongs of the ABC test. Thereafter, the plaintiff, pursuant to General Statutes § 31–249b,⁴ appealed the board's decision to the Superior Court. The court affirmed the board's decision and rendered judgment dismissing the plaintiff's appeal on June 17, 2009. This appeal followed.

On appeal, the plaintiff claims that the court should have determined that the board's decision resulted from the application of the incorrect legal standard to the facts found. Specifically, the plaintiff claims that the board should have applied § 42–133e (b),⁵ rather than the ABC test, to the facts found.⁶ We disagree.

Our standard of review of appeals of this nature is well settled. “To the extent that an [appeal] ... concerns findings of fact, a court is limited to a review of the record certified and filed by the board of review. The court must not retry facts nor hear evidence.... If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion.” (Internal quotation marks omitted.) Mattatuck Museum–Mattatuck Historical Society v. Administrator, 238 Conn. 273, 276, 679 A.2d 347 (1996).

We conclude that the board applied the correct legal standard to the facts found. The sole question before the appeals referee and the board was whether Derose was an employee of the plaintiff for unemployment compensation purposes. To answer this question, the referee and the board applied well settled unemployment compensation law. “An individual may receive unemployment compensation benefits if he or she was an employee within the meaning of the act. In addition to defining the employer-employee relationship pursuant to the common law, § 31–222(a)(1)(B) provides that individuals who perform services for others are presumed to be employees, unless the recipient of the services (enterprise) satisfies ... the ABC test. In order for an enterprise to demonstrate that an individual was not an employee, and that the enterprise therefore has no liability for unemployment taxes under the act, the enterprise must prove that the individual satisfies each of the three prongs of the ABC test. This test is conjunctive; failure to satisfy any one of the prongs will render the enterprise subject to the act.... Under the ABC test, an individual will not be considered an employee if: [A] such individual has been and will continue to be free from control and...