Link's School of Business, Inc. v. Employment Sec. Agency

Decision Date25 March 1963
Docket NumberNo. 9205,9205
PartiesLINK'S SCHOOL OF BUSINESS, INC., Plaintiff-Appellant, v. EMPLOYMENT SECURITY AGENCY, State of Idaho, Defendant-Respondent. In re Liability of Link's School of Business, Inc., for the payment of Contributions under the Employment Security Law.
CourtIdaho Supreme Court

Givens, O'Leary, Doane & Givens, Boise, for appellant.

John W. Gunn, Counsel for Employment Security Agency, Boise, for respondent.

SMITH, Justice.

Respondent, Idaho Employment Security Agency, is herein sometimes designated as the Agency, and the Industrial Accident Board as the Board.

This is an appeal from a decision of the Board affirming a decision of the Agency's appeals examiner, determining that appellant's salesmen are its employees, and not independent contractors, thus requiring contributions, based on their commissions, to be paid into the unemployment security fund.

Appellant conducts a school of business in Boise, Idaho. In the operation of its business, it engages salesmen who contact prospective students for enrollment in courses of study in the school. According to the oral agreement between appellant and its salesmen, appellant acquaints the salesmen with functions and policies of the school. Appellant pays its salesmen on a commission basis for each student enrolled. The amount of the commission is determined by the course of study in which the student enrolls. Prospective students are contacted by the salesmen through their own independent efforts, as well as through leads furnished them by appellant. The salesmen are not assigned to specific geographical territories; but duplication of efforts and competition between salesmen are avoided by appellant's assignment of leads in a certain area to but one salesman.

The salesmen furnish their own automobiles, pay their own expenses, work whatever hours they choose and generally, in whatever territory they find advantageous. They are not required to accept leads furnished them by appellant, the choice being that of the individual, nor are they required to report to appellant at any definite or fixed time.

Salesmen are allowed advances from appellant to defray expenses while 'on the road,' which advances are charged against subsequent commissions earned. If a salesman desires, he may obtain insurance for medical and kindred coverage and make payment of the required premiums therefor, through appellant; in such a case appellant charges the amount of the premium paid against the salesman's earned commissions. Appellant makes no deductions from a salesman's earned commissions for income tax or 'social security' excise tax. Either party can terminate the relationship at any time without incurring liability to the other party.

The Board's order affirming the appeals examiner's decision that appellant is liable for employment security excise tax with respect to commissions paid the salesmen, is predicated upon the following purported indicia characteristic of an employer-employee relationship: (1) There was no formal contract, written or oral, providing for a fixed or determinable quantum of services to be rendered by a salesman to appellant; (2) Appellant's right to discharge a salesman without reason and without liability; (3) A salesman's eligibility for group medical insurance through appellant, and (4) Advances made by appellant to its salesmen were to be repaid only out of commissions earned.

Appellant contends that 'the Board erred as a matter of law in determining the relationship existent between appellant and its salesmen is that of employer-employee,' asserting that the evidence is insufficient to sustain that relationship, but sufficient to sustain the relationship of principal and independent contractor.

The question whether a relationship is one of employer-employee or of principal-independent contractor is one which must be determined from all the facts and circumstances of the individual case. Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 353 P.2d 657; National Trailer Convoy, Inc., v. Employment Sec. Agency of Idaho, 83 Idaho 247, 360 P.2d 994.

For purposes of the Employment Security Law, covered employment shall not include any individual who, under the common-law rules applicable in determining the employer-employee relationship, has the status of an independent contractor. See I.C. § 72-1316(d); National Trailer Convoy, Inc., v. Employment Sec. Agency of Idaho, supra. No one test standing alone, except the right of control in the relationship of employer and employee, and the lack of such right in that of principal and independent contractor, is wholly decisive. Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 353 P.2d 657; Moore v. Idaho Employment Security Agency, 84 Idaho 1, 367 P.2d 291.

If one engages another to perform services, retaining control of the conduct of the person thus engaged, as to the order, method, plan, and details of the work, the relationship is that of master and servant, and not of principal and independent contractor. Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356; E. T. Chapin Co. v. Scott, 44 Idaho 566, 260 P. 172; Joslin v. Idaho Times Publishing Co., 56 Idaho 242, 53 P.2d 323; Pinson v. Minidoka Highway District, 61 Idaho 731, 106 P.2d 1020; Merrill v. Duffy Reed Construction Co., supra; National Trailer Convoy, Inc., v. Employment Sec. Agency of Idaho, 83 Idaho 247, 360 P.2d 994.

The Board concluded that appellant's right to discharge a salesman without reason and without liability gave appellant the power to control the salesman in all respects.

This Court has been consistent in holding that a cogent characteristic of the employer-employee relationship is the right of either party to terminate the relation without liability. See discussions in Taylor v. Blackwell Lumber Co., supra; E. T. Chapin v. Scott, supra; Joslin v. Idaho Times Publishing Co., supra; Laub v. Meyer, Inc., 70 Idaho 224, 214 P.2d 884; Ohm v. J. R. Simplot Co., 70 Idaho 318, 216 P.2d 952; Nixon v. Webber-Riley Lumber Co., 71 Idaho 238, 229 P.2d 997; Blue Bell Co. v. Employment Security Agency, 75 Idaho 279, 270 P.2d 1054; Merrill v. Duffy Reed Construction Co., supra; National Trailer Convoy, Inc., v Employment Sec. Agency of Idaho, supra. However, as held in those cases retention of the power to discharge without liability, of itself, is not controlling.

'The question whether the relationship is that of employer and employee, or contracting principal and independent contractor is to be determined from all the facts and circumstances established by the evidence.' Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 353 P.2d 657. See also Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356; Horst v. Southern Idaho Oil Co., 49 Idaho 58, 286 P. 369; Wilcox v. Swing, 71 Idaho 301, 230 P.2d 995.

The evidence in the case at bar is heavily weighted with indicia which show lack of retention by appellant of control over its salesmen. The salesmen furnished their own automobiles or modes of conveyances and paid all their attendant expenses, which constitutes a mark of the independent contractor relationship. Joslin v. Idaho Times Publishing Co., 56 Idaho 242, 53 P.2d 323; National Trailer Convoy, Inc., v. Employment Sec. Agency of Idaho, 83 Idaho 247, 360 P.2d 994. Appellant and the salesmen agreed that the relationship be that of principal and independent contractor. Wilcox v. Swing, supra; In re Pacific Nat. Life Assur. Co., 70 Idaho 98, 212 P.2d 397. The salesmen work whatever hours in whatever territory they choose or deem advantageous, and are not required to report to appellant at any definite or fixed time; nor did appellant instruct the salesmen as regards any particular method or requirement of making sales, indicative of the lack of retention of the right to exercise control as to the details and methods of the salesmen's performance of their services. Laub v. Meyer, Inc., 70 Idaho 224, 214 P.2d 884; Wilcox v. Swing, supra; Merrill v. Duffy Reed Construction Co., supra.

The Board concluded that because some of the salesmen, at their option, contracted for group medical insurance through appeallant, such constituted evidence of an employer-employee relationship. Rather, since appellant did not require its salesmen to join such group plan, the choice being entirely at the option and at the cost of the salesman, such constituted an indicia of the independent contractor relationship.

The Board concluded that because advancements, made by appellant to its salesmen, were to be repaid by the salesmen out of commissions earned, such was inimical to the relationship of principal and independent contractor. The record does not show such an arrangement, but shows that in instances appellant did not press repayment of advances where earned commissions were not available for repayment. The fact that appellant did not seek return of advancement by legal recourse, in itself, does not establish an employer-employee relationship. The manner of payment is not decisive of the employer-employee or the principal-independent contractor relationship. Merrill v. Duffy Reed Construction Co., supra; State Highway Commission v. Brewer, 196 Okl. 437, 165 P.2d 612; Stover Bedding Co. v. Industrial Commission, 96 Utah 423, 107 P.2d 1027, 134 A.L.R. 1006. Nor is the absence herein of an agreement for the performance of a fixed or determinable quantum of services, Hiebert v. Howell, 59 Idaho 591, 85 P.2d 699, 120 A.L.R. 388, in itself determinative of an employer-employee status. Such indicia is but another expression of reservation of the right of discharge without liability.

In re Pacific Nat. Life Assur. Co., 70 Idaho 98, 212 P.2d 397, ...

To continue reading

Request your trial
6 cases
  • Anderson v. Farm Bureau Mut. Ins. Co. of Idaho, 16319
    • United States
    • Court of Appeals of Idaho
    • February 2, 1987
    ...earlier versions of the Employment Security Act were inapplicable to independent contractors. E.g., Link's School of Business v. Employment Security Agency, 85 Idaho 519, 380 P.2d 506 (1963). The same result would follow if the issue turned on the individual's common law status as an indepe......
  • Excell v. Dept. of Commerce and Labor, 33574.
    • United States
    • United States State Supreme Court of Idaho
    • June 4, 2008
    ...right in that of principal and independent contractor is wholly decisive." Id. (quoting Link's School of Business, Inc. v. Employment Security Agency, 85 Idaho 519, 523, 380 P.2d 506, 508 (1963)). The Court then noted that additional factors had been considered in National Trailer, such as ......
  • Giltner, Inc. v. Dept. of Commerce & Labor, 33611.
    • United States
    • United States State Supreme Court of Idaho
    • February 29, 2008
    ...right in that of principal and independent contractor is wholly decisive." Id. (quoting Link's School of Business, Inc. v. Employment Security Agency, 85 Idaho 519, 523, 380 P.2d 506, 508 (1963)). The Court then noted that additional factors had been considered in National Trailer, such as ......
  • Department of Employment v. Bake Young Realty, 12159
    • United States
    • United States State Supreme Court of Idaho
    • February 22, 1977
    ...whether he incurs substantial out-of-pocket professional expenses which are not reimbursed. In Links School of Business, Inc. v. Employment Security Agency, 85 Idaho 591, 380 P.2d 506 (1963), on facts quite similar to the present case, the Court 'The salesmen furnished their own automobiles......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT