Nielsen v. Department of Employment Sec.
| Decision Date | 14 November 1984 |
| Docket Number | No. 19369,19369 |
| Citation | 692 P.2d 774 |
| Parties | Darrell NIELSEN, Plaintiff, v. DEPARTMENT OF EMPLOYMENT SECURITY, Board of Review, Industrial Commission of Utah, and Edward R. Beale, Defendants. |
| Court | Utah Supreme Court |
Darrell Nielsen, pro se.
Floyd G. Astin, K. Allan Zabel, Linda Wheat Gowaty, Salt Lake City, for defendants.
Plaintiff seeks review of an award of unemployment compensation to Edward R. Beale and a charge against plaintiff as Beale's employer for contributions to the unemployment compensation fund on behalf of the claimant. Plaintiff raises as a single issue a challenge to the board's determination that Beale was an employee of plaintiff.
Plaintiff owned a semi-tractor. He hired a driver team consisting of the claimant, Beale, and another party and contracted with F.B. Truck Lines for use of the tractor and driver team to haul loads to locations specified by F.B. Truck Lines. F.B. Truck Lines paid Nielsen a certain rate per mile for use of the truck and driver. In turn, the driver team was paid a lesser rate per mile. Beale and his partner negotiated their pay with Darrell Nielsen. They were initially paid sixteen cents per mile beginning in June 1981 and were later raised to twenty cents per mile.
Though F.B. Truck Lines advanced certain sums to the driver team and deducted the amounts paid from their payments to Nielsen under the lease, the net earnings owed to the drivers were paid to the team directly by Nielsen. Nielsen retained the power to direct the driver team to reject a load offered by F.B. Truck Lines and had the sole right to discharge claimant Beale and his partner. Beale had never worked as an independent contractor; he owned no equipment and had no authority to order repairs to the truck over usual maintenance costs.
On these facts, the board of review found that Beale was paid wages, that he did not meet the ABC test of section 35-4-22(j)(5), that he was not an independent contractor, and that he was in fact an employee of Darrell Nielsen.
Darrell Nielsen appeals, contending that Beale and the other driver were hired as a team and that they constituted a partnership which was ipso facto not covered under the act. He acknowledges in his brief that the term "employee" may be defined under different statutes in different ways for special purposes.
Under our statutes, a person who performs services for another for wages or under a contract for hire is entitled to unemployment compensation unless it is shown that he is excluded by the test of section 35-4-22(j)(5), which provides:
(5) Services performed by an individual for wages or under any contract of hire, written or oral, express or implied, are deemed to be employment subject to this act unless and until it is shown to the satisfaction of the commission that:
(A) The individual has been and will continue to be free from control or direction over the performance of those services, both under his contract of hire and in fact;
(B) The service is either outside the usual course of the business for which the service is performed or that the service is performed outside of all the places of business of the enterprise for which the service is performed; and
(C) The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the contract of service.
We have previously held that all three elements of the ABC test must be met in order for the services to be excluded from coverage under the act. 1
The board of review found that Beale was not free from control or direction in the performance of his duties, that he worked under an oral contract to provide the personal services of operating the truck owned by Nielsen, that he was not engaged in an independently established trade,...
To continue reading
Request your trial
-
Latimer v. Administrator, Unemployment Compensation Act, 13863
...A.2d 454 (Del.1983); Unemployment Ins. Tax Contribution v. Friedrichs, 233 Mont. 384, 760 P.2d 93 (1988); Nielsen v. Department of Employment Security, 692 P.2d 774, 776 (Utah 1984) "The test is conjunctive; all parts must be satisfied to exclude an employer from the Act." Gay Hill Field Se......
-
Armstrong v. Department of Employment Sec., 910403-CA
...Review Utah's Employment Security Act is to be "construed liberally in favor of affording benefits." Nielsen v. Department of Employment Sec., 692 P.2d 774, 776 (Utah 1984) (per curiam); accord DeLuca v. Department of Employment Sec., 746 P.2d 276, 278 (Utah A claimant has a statutory right......
-
Bhatia v. Department of Employment Sec.
...REVIEW Utah's Employment Security Act is to be "construed liberally in favor of affording benefits." Nielsen v. Department of Employment Sec., 692 P.2d 774, 776 (Utah 1984) (per curiam); accord DeLuca v. Department of Employment Sec., 746 P.2d 276, 278 (Utah App.1987). However, an employee ......
-
Gay Hill Field Service v. Board of Review of Indus. Com'n, Dept. of Employment Sec., 870132-CA
...(C) (1985). 1 The test is conjunctive; all parts must be satisfied to exclude an employer from the Act. Nielsen v. Department of Employment Sec., 692 P.2d 774, 776 (Utah 1984); see Allen & Assocs. v. Board of Review, Indus. Comm'n, 732 P.2d 508, 509 (Utah 1987) (per curiam). Our opinion iss......