Weiss-Lawrence, Inc. v. Riley

• Decision Date: 06 December 1955
• Docket Number: WEISS-LAWRENC,I
• Citation: 100 N.H. 41,118 A.2d 731
• Parties: nc. v. William H. RILEY, Commissioner of Labor.
• Court: New Hampshire Supreme Court

Page 731

118 A.2d 731

100 N.H. 41

WEISS-LAWRENCE, Inc. v. William H. RILEY, Commissioner of Labor.

Supreme Court of New Hampshire.

Argued Nov. 2, 1955.

Decided Dec. 6, 1955.

McCabe & Fisher and Harold D. Moran, Dover, for petitioner.

James M. Riley, Jr., Edward F. Smith and Winslow H. Osborne, Concord, for defendant.

DUNCAN, Justice.

The agreed statement of facts establishes that this dispute relates to the status under the unemployment compensation law of certain home workers 'who lace and bead moccasins on premises other than those of the petitioner' at such times as they may select, without its direct supervision and inspection but according to its specifications, for remuneration which exceeds the minimum requirements of the Federal Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq.

The statement also establishes the following facts:

The petitioner is engaged in the business of manufacturing shoes and moccasins at Dover, and furnishes moccasins, thread, lacings, and wax to individuals in the Dover-Somersworth area who have been trained in lacing and beading at the petitioner's factory and are considered by it to be qualified to do such work away from the factory. The workers lace together certain parts of the moccasins as furnished them by the petitioner, and bead them, supplying their own needles, beads, and any tools which they may choose to utilize. The work is done at the workers' homes. They are paid by the piece, after being furnished a supply of moccasins upon which the work can be completed in a day's time. They are paid weekly, and are under no obligation to accept or continue with the work. They receive no pay for work which does not comply with the specifications, but agree that such work shall be done over.

There was no evidence that other concerns supplied work to the individuals who work for the plaintiff, although it appeared that such work was available from four other sources. The findings state that similar work was given out by other companies in the area, but that 'beading and lacing is a process in the manufacture of moccasins * * * performed away from the factory' and 'is not found to be an established trade.'

Counsel agreed at the hearing that the essential issue was whether or not the home workers 'are in employment under the definition stated in our act * * * a, b and c of [subsection] 3.' The material provisions are found in R.S.A. c. 282, § 1, subd. H:

"Employment' (1) * * * means service * * * performed for wages or under any contract of hire, written or oral, expressed or implied * * *. (3) Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the director of the division of employment security (formerly the commissioner) that:

'(a) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and

'(b) Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

'(c) Such individual is customarily engaged in an independently established trade, occupation, profession, or business.'

The petitioner asserts that under these provisions the common-law test of employment was intended to be applied, and that under that test the home workers are clearly not employees, but independent contractors. The defendant on the other hand relies upon the same provisions to establish that the workers are paid wages 'for employment' as defined by the act and that the petitioner is accordingly required to make the contributions required by the act. R.S.A. c. 282, supra, § 6, subd. A. Neither party considers that the amendment to section 1 of the act, as enacted by Laws 1955, c. 141, § 3, applies to this petition.

It is familiar doctrine that the governing provisions of the act are to be construed with reference to its underlying purpose, Auclair Transp. v. Riley, 96 N.H. 1, 3, 69 A.2d 861, which has been defined as a purpose 'to insure in limited measure against unemployment of individuals regularly attached to the labor market which is not occasioned with their consent or by their fault.' Wellman v. Riley, 95 N.H. 507, 510, 67 A.2d 428, 429. As the original enactment recited, its purpose was to prevent the spread of unemployment 'and to lighten the burden which now so often falls with crushing force upon the unemployed worker and his family.' Laws 1935, c. 99. It follows that common-law distinctions between servants and independent contractors, developed in defining the tort liability of an employer for the acts of his employee, see McCarthy v. Souther, 83 N.H. 29, 137 A. 445, are not necessarily controlling, nor did the Legislature necessarily intend them to be determinative, of what should constitute employment for the purpose of protecting employees against the economic risks of unemployment. See Willcox, Coverage of Unemployment Compensation Laws, 8 Vand.L.Rev. 245, 247-251; Asia, Employment Relation, 55 Yale L.J. 76, 86.

A majority of the courts of other jurisdictions which have had occasion to construe provisions like those appearing in section 1, subd. H of our statute have declined to confine them within common-law concepts of the relationship of master and servant. Thus in Department of Labor and Industry v. Aluminum Cooking Utensil Co., 368 Pa. 276, 82 A.2d 897, 898, the court said: 'Having in mind the broad purposes of this * * * legislation * * * it is our opinion that it was the intention of the legislature to provide for a larger coverage of employes entitled to unemployment compensation than merely those who would be...