Vogue v. Adm'r

Docket NumberSC 20570
Decision Date16 August 2022
Parties VOGUE v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT
CourtConnecticut Supreme Court

Santa Mendoza, for the appellant (plaintiff).

Krista D. O'Brien, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Philip M. Schulz, deputy associate attorney general, for the appellee (defendant).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

ROBINSON, C. J.

This certified appeal requires us to consider whether the Board of Review of the Employment Security Appeals Division (board) correctly determined that tattoo services are part of the usual course of business of a body art and piercing business for purposes of part B of the statutory ABC test; see General Statutes § 31-222 (a) (1) (B) (ii) (II) ;1 which is used to determine whether an individual is an employee for purposes of the Unemployment Compensation Act (act), § 31-222 et seq. The plaintiff, Vogue,2 which is a business that provides body piercing and body art services, appeals, upon our grant of its petition for certification,3 from the judgment of the Appellate Court affirming the judgment of the trial court rendered in favor of the defendant, the Administrator of the Unemployment Compensation Act, that dismissed its appeal from the decision of the board. Vogue v. Administrator, Unemployment Compensation Act , 202 Conn. App. 291, 314, 245 A.3d 464 (2021). On appeal, the plaintiff claims that the Appellate Court improperly upheld the trial court's determination that the board had not acted unreasonably or arbitrarily in holding the plaintiff liable for unpaid unemployment compensation contributions on the basis of its conclusion that the offering of tattoo services was within the plaintiff's usual course of business. We disagree with the plaintiff and, accordingly, affirm the judgment of the Appellate Court.

The record reveals the following facts and procedural history, much of which is aptly set forth in the opinion of the Appellate Court.4 "The plaintiff leases retail space in an indoor shopping mall in Waterford," where it "sells, among other things, body jewelry and body piercing services." Id., at 294, 245 A.3d 464. In March, 2016, one of the defendant's field officers conducted an audit of the plaintiff's business and concluded that a tattoo artist, Mark Sapia, was an employee of the plaintiff rather than an independent contractor. Id. "Consequently, the defendant reclassified payments made to Sapia in 2014 and 2015 by the plaintiff as wages" and concluded that the plaintiff was liable for the payment of contributions under the act.5 Id.

Subsequently, the plaintiff appealed from the defendant's decision to an appeals referee in its appeals division, who conducted an evidentiary hearing. Id. In a memorandum of decision issued in September, 2016, the appeals referee concluded that the defendant had correctly determined that Sapia was an employee of the plaintiff, on the basis of the following factual findings:

"(1) [Sapia] worked as a tattoo artist at [the plaintiff's store] from approximately 2013 through the time of the audit. Sapia himself personally performs the tattoo services for the customers at [the plaintiff's store]. The owner of [the plaintiff] classified Sapia as an independent contractor when the company was [completing] a registration form with the [defendant].

"(2) Based on that information, the [defendant] conducted an audit of [the plaintiff's business for 2014 and 2015] and checked its payroll records and the status of individuals working for [the business]. [The plaintiff] had four employees ... not including the owner or [Sapia].

"(3) When Sapia began working for [the plaintiff], the parties agreed that, when [Sapia] tattooed the customer, Sapia would get 50 percent of the sales price and the owner would get the other 50 percent. Sapia was allowed to use the credit card machine for [the plaintiff's store] when selling his tattoo services. Sapia did not have to pay to use that credit card machine. The owner would then give Sapia his percent[age] of the credit card sales once those transactions were approved by the credit card company. [The plaintiff's store] had a back room ... where Sapia was to perform his tattoo work on the customers. The price of the tattoo was determined by Sapia.

"(4) The owner also had Sapia sign an agreement when they started working together, which indicated that Sapia was an independent contractor, outlined the payment arrangements, and allowed the owner to review or check the work performed by Sapia. That agreement also stated that [Sapia] was responsible for correcting any mistakes with the tattoos and that [the plaintiff] could deduct moneys from Sapia if a customer complaint was not resolved.

"(5) Although the agreement also required that Sapia carry his own business liability insurance, Sapia did not do so, which the owner knew.

"(6) The owner provided Sapia with a sterile environment at the [plaintiff's] store ... for him to perform his tattoo services for the general public. Sapia is registered with the state of Connecticut as a tattoo technician, and when he is placing the tattoos on the customers, he must do so in a sterile environment.

"(7) Sapia did provide his own ink and needles in order to place the tattoos on the customers he serviced at [the plaintiff's store]. Sapia also used his own laptop for his work.

"(8) [The plaintiff] keeps track of all of the tattoo sales made by Sapia when he is working in the store. When a customer paid for the tattoo in cash ... Sapia would keep 50 percent of the sale for himself and turn over the other 50 percent to the owner. The owner did not pay any other moneys to Sapia in 2014 and 2015. Sapia ... performed his tattoo services [only] during the store hours established by [the plaintiff] because the owner did not issue a store key to Sapia, who could not access the store on his own.

"(9) When Sapia sold a tattoo and applied the tattoo on the customer, the customer received a receipt, which listed the business name of the [plaintiff] company ... as well as the phone number, address and website for [the plaintiff company] .... The [plaintiff's] owner also required that Sapia have the customers sign a waiver/release form, which was an agreement between [the plaintiff] and the customer, to release both [the plaintiff] and Sapia from various types of liability.

"(10) [The plaintiff] is in the business of providing piercings, selling jewelry for the piercing, and offering tattoo services. [The plaintiff] advertises through its website and its Facebook page that a customer can have piercings or tattoos done at its store and lists the hours that the tattoo artist is in the store.

"(11) [The plaintiff] provides a back room in the store where Sapia is able to perform his tattoo services for the customers of [the plaintiff]. [The plaintiff] also provides a table, chairs, and cleaning supplies for that room.

"(12) Sapia does not have to submit an invoice to [the plaintiff] in order to be paid his 50 percent of the tattoo services that he provides to the customers at [the plaintiff's store]. Sapia does not pay any rent to [the plaintiff] to use the employer's sterile room to perform his services, and all advertisements are done by [the plaintiff], other than [Sapia's] mentioning his tattoo services on his social media sites, which also include the contact information at [the plaintiff's store].

"(13) The [plaintiff's] owner was not aware of any insurance or other paperwork to show that Sapia had established his own business or that he had his own company [that] offered tattoo services to the general public.

"(14) When the field auditor [for the defendant] conducted the audit, the only income reported by Sapia was the moneys that he received from [the plaintiff]." (Internal quotation marks omitted.) Id., at 294–97, 245 A.3d 464.

In September, 2016, the plaintiff appealed to the board from the decision of the appeals referee upholding the defendant's classification of Sapia as an employee. Id., at 297, 245 A.3d 464. "In a memorandum of decision dated January 19, 2017, the board [relied on the record of the proceedings before the appeals referee and] expressly adopted [her] findings of fact ... without modification, with the exception of the tenth finding of fact, to which the board added the following finding: ‘Sapia is the only tattoo artist performing tattoo services for the [plaintiff].’ " Id., at 297, 245 A.3d 464. The board then upheld the decision of the appeals referee, determining that the plaintiff had not proven that Sapia was an independent contractor by satisfying all three prongs of the ABC test set forth in § 31-222 (a) (1) (B) (ii). See id., at 298–99, 245 A.3d 464 ; see also footnote 1 of this opinion.

"With respect to part B of the test," which is at issue in this certified appeal, "the board concluded that Sapia's service was not performed outside of the plaintiff's usual course of ... business or the place of its business.6 The board stated ... the [plaintiff] describes itself on its website as your one-stop destination for body jewelry, stainless steel jewelry, as well as piercing and tattoo services. The [plaintiff's] website also advertised that it provided tattoo services during all open store hours. [Although the board] recognize[s] that Sapia was the only tattoo artist performing these services on the employer's behalf, both the [plaintiff's] website and Facebook page describe the company as Vogue Tattoo and Piercings." (Footnote added; internal quotation marks omitted.) Vogue v. Administrator, Unemployment Compensation Act , supra, 202 Conn. App. at 299, 245 A.3d 464. "Accordingly, the board determined that Sapia was employed by the plaintiff for purposes of the act and that the plaintiff was liable for any contributions related to his wages that were required by the act. The board [upheld] the decision...

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