Petition of City Cab of Manchester, Inc.
| Decision Date | 19 December 1994 |
| Docket Number | No. 93-144,93-144 |
| Citation | 139 N.H. 220,652 A.2d 1202 |
| Parties | Petition of CITY CAB OF MANCHESTER, INC. d/b/a Town & Country Taxi (New Hampshire Department of Labor). |
| Court | New Hampshire Supreme Court |
Douglas & Douglas, Concord (Robert J. Rabuck and C. Kevin Leonard on the brief, and Charles G. Douglas, III orally), for petitioner.
Jeffrey R. Howard, Atty. Gen. (Lucy C. Hodder, Asst. Atty. Gen., on the brief and orally), for State.
The question presented is whether the petitioner, City Cab of Manchester, Inc. d/b/a Town & Country Taxi (City Cab), must secure workers' compensation for its taxi drivers. A New Hampshire Department of Labor hearing officer answered in the affirmative, finding the drivers to be employees of City Cab, not independent contractors. See RSA 281-A:5 (Supp.1993). We affirm.
We are treating City Cab's appeal as a petition for writ of certiorari. See Petition of Donovan d/b/a Donovan Group Home, 137 N.H. 78, 80, 623 A.2d 1322, 1324 (1993). Accordingly, we overturn the hearing officer's decision only if it is "unreasonable or unlawful." Id.
"[W]e determine the existence of an employee-employer relationship for the purposes of workers' compensation through reference to the factors set forth in the New Hampshire Department of Labor regulations." Appeal of Longchamps Electric, 137 N.H. 731, 733, 634 A.2d 994, 996 (1993). Labor Rule 101.05 provides as follows:
"Employee-employer relationship" shall be defined using the following criteria:
(a) The employee is permitted, suffered, required or directed by the employer in consideration of direct or indirect gain or profit to engage in the employment of the employer (b) The employer provides the employee with instructions, training or orientation as to when, where and how the work is to be performed to the employer[']s specifications;
(c) The employer supervises the work of the employee;
(d) The employee may submit oral or written reports to the employer regarding work activities;
(e) The work performed by the employe[e] is part of the regular business of the employer;
(f) The employer supplies the employee with the instrumentalities, tools and the place of work without a significant investment by the employee;
(g) The employer pays the employee by the hour, week, month, piece or commission and may pay business and travel expenses;
(h) The employee is prevented from hiring, supervising and paying assistants to complete a specific goal in the manner of a subcontractor;
(i) The employer can discharge the employee with a right to no more than wages already earned or the employee can end the relationship without incurring any liability as in a breach of contract;
(j) The employee[s] shall not present themselves as being a business entity; and
(k) Any other factor which contributes to the nature of the relationship that the parties believe they are creating.
N.H. Admin.Rules, Lab 101.05 (1991); see also RSA 281-A:2, VI, VIII (Supp.1993). This test is essentially the same as the one found in expired Labor Rule 104.02 and the Restatement (Second) of Agency § 220, at 485-86 (1958). See LaVallie v. Simplex Wire & Cable Co., 135 N.H. 692, 695-96, 609 A.2d 1216, 1218 (1992). Under this standard, the determination of whether an employee-employer relationship exists depends on the facts of the case. See Merchants Ins. Group v. Warchol, 132 N.H. 23, 27, 560 A.2d 1162, 1165 (1989); Burnham v. Downing, 125 N.H. 293, 296, 480 A.2d 128, 130 (1984). Because the hearing officer's fact findings are supported by the record, we ask only whether her application of the rule to these facts is unlawful or unreasonable. See Petition of Donovan, 137 N.H. at 80, 623 A.2d at 1324.
The hearing officer's decision states in pertinent part:
During [the] hearing it was pointed out that City Cab ... is in the business of leasing cars to drivers. The drivers are able to keep whatever they earn over the course of their lease period. The company provides a dispatch service which the drivers may use or choose to ignore. There is no control over the drivers in regard to dress code, work activities, or any other area of their work. It was pointed out that the company has one driver [who] owns [her] own taxi for which [she] only lease[s] the company's dispatch service and that the difference between the drivers [who] lease cabs and those who own their cabs is "the financial ability to bankroll a cab." A written lease agreement between the company and the driver was submitted. In regard to new drivers, it was stated that an experienced driver...
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