Standard Oil of Connecticut, Inc. v. Administrator, Unemployment Compensation Act ( 2016 )

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STANDARD OIL OF CONNECTICUT, INC. v. ADMINISTRATOR,
UNEMPLOYMENT COMPENSATION ACT—DISSENT
ROGERS, C. J., with whom PALMER and McDON-
ALD, Js., join, dissenting. I respectfully dissent from
the majority opinion because I believe that its interpre-
tation of the test set forth in General Statutes § 31-222
(a) (1) (B) (ii) for determining whether an employer-
employee relationship existed (ABC test) effectively
rewrites that test and fails to give one part of it the full
significance that clearly is required. In so doing, the
majority lowers the high, legislatively set bar that an
enterprise must surmount in order to avoid making
contributions to the state’s unemployment compensa-
tion fund (fund) pursuant to General Statutes § 31-225.
More particularly, I disagree with the majority’s deter-
mination that the trial court and the Employment Secu-
rity Appeals Division, Board of Review (board),
improperly concluded that the plaintiff, Standard Oil of
Connecticut, Inc., was required to make contributions
to the fund because it failed to prove all three parts of
the ABC test as is necessary for a putative employer
to be exempt from such contributions. My review of
the record and the applicable law, considered with ref-
erence to the remedial purpose of the Unemployment
Compensation Act (act); General Statutes § 31-222 et
seq.; leads me to conclude that the plaintiff clearly failed
to prove either subpart of part B of that test. See General
Statutes § 31-222 (a) (1) (B) (ii) (II). Because the failure
to prove any part of the ABC test is dispositive, I do
not reach the question of whether the plaintiff also
failed to prove part A of the test.1
The defendant, the administrator of the act, deter-
mined, and the board and trial court agreed, that the
relationship between the plaintiff and the technicians
and installers at issue was one of employment, as con-
templated by § 31-222 (a) (1), thereby making the plain-
tiff liable for contributions to the fund pursuant to the
act. Our review of that determination is largely deferen-
tial. In regard to factual findings, ‘‘[r]eview of an admin-
istrative agency decision requires a court to determine
whether there is substantial evidence in the administra-
tive record to support the agency’s findings of basic
fact and whether the conclusions drawn from those
facts are reasonable. . . . Neither this court nor the
trial court may retry the case or substitute its own
judgment for that of the administrative agency on the
weight of the evidence or questions of fact.’’ (Internal
quotation marks omitted.) JSF Promotions, Inc. v.
Administrator, Unemployment Compensation Act,
265 Conn. 413, 417, 828 A.2d 609 (2003). Rather, ‘‘[a]n
agency’s factual and discretionary determinations are
to be accorded considerable weight by the courts.’’2
(Internal quotation marks omitted.) Id., 417–18.
At the same time, however, if ‘‘the issue is one of law,
the court has the broader responsibility of determining
whether the administrative action resulted from an
incorrect application of the law to the facts found or
could not reasonably or logically have followed from
such facts. Although the court may not substitute its
own conclusions for those of the administrative board,
it retains the ultimate obligation to determine whether
the administrative action was unreasonable, arbitrary,
illegal or an abuse of discretion.’’ (Internal quotation
marks omitted.) Mattatuck Museum-Mattatuck Histor-
ical Society v. Administrator, Unemployment Com-
pensation Act, 238 Conn. 273, 276, 679 A.2d 347 (1996).
The present matter requires an interpretation of § 31-
222 (a) (1) (B) (ii) (II), part B of the ABC test, which
has not been subject to much judicial or agency exami-
nation. In regard to issues of statutory construction,
‘‘[g]enerally, [o]ur review of an agency’s decision on
questions of law is limited by the traditional deference
that we have accorded to that agency’s interpretation
of the acts it is charged with enforcing.’’ (Internal quota-
tion marks omitted.) Church Homes, Inc. v. Adminis-
trator, Unemployment Compensation Act, 250 Conn.
297, 303, 735 A.2d 805 (1999). Nevertheless, ‘‘[i]t is well
settled . . . that we do not defer to the board’s con-
struction of a statute—a question of law—when, as in
the present case, the [provision] at issue previously
ha[s] not been subjected to judicial scrutiny or when
the board’s interpretation has not been time tested.’’
(Internal quotation marks omitted.) JSF Promotions,
Inc. v. Administrator, Unemployment Compensation
Act, supra, 265 Conn. 418. In such a case, our review
of the interpretation of that provision is plenary. Id.
It is well established that the act is remedial legisla-
tion that was intended ‘‘to protect those who are at risk
of unemployment [and its tragic consequences] if their
relationship with a particular employer is terminated’’;
id., 420; see also Daw’s Critical Care Registry, Inc. v.
Dept. of Labor, 42 Conn. Supp. 376, 411, 622 A.2d 622
(1992), aff’d, 225 Conn. 99, 622 A.2d 518 (1993); and,
therefore, that the act should be liberally construed in
favor of those whom it is intended to benefit. Daw’s
Critical Care Registry, Inc. v. Dept. of Labor, supra,
411. The legislature expressly has mandated that the
act ‘‘be construed, interpreted and administered in such
manner as to presume coverage, eligibility and nondis-
qualification in doubtful cases.’’ General Statutes § 31-
274 (c).
Pursuant to the act, the existence of an employment
relationship triggers the responsibility of employers to
make contributions that fund unemployment benefits.
The act ‘‘defines employment in . . . § 31-222 (a) (1).
In addition to codifying the common-law rules applica-
ble to determine the existence of an employer-employee
relationship, the act was amended in 1971 to include
the so-called ‘ABC test,’ now set forth in [subparts] I,
II and III of § 31-222 (a) (1) (B) (ii).’’ F.A.S. Interna-
tional, Inc. v. Reilly, 179 Conn. 507, 511, 427 A.2d 392
(1980); see also Public Acts 1971, No. 835, §§ 1 through
3. Because the ABC test defines employment more
broadly than the common law, in Connecticut and other
jurisdictions using that test, ‘‘service may be employ-
ment and one may be an employee [for purposes of the
act] even if the common-law relationship of master and
servant does not exist . . . .’’ Id.; see also L.A. McMa-
hon Building Maintenance, Inc. v. Dept. of Employ-
ment Security, 32 N.E.3d 131, 141 (Ill. App. 2015); Athol
Daily News v. Board of Review of the Division of
Employment & Training, 439 Mass. 171, 177 n.10, 786
N.E.2d 365 (2003); Fleeman v. Nebraska Pork Partners,
Docket No. S-08-0476, 2009 WL 6964983, *4 (Neb. Janu-
ary 22, 2009); Fleece on Earth v. Dept. of Employment &
Training, 181 Vt. 458, 463, 923 A.2d 594 (2007).3
A business enterprise claiming exemption from pay-
ment of unemployment taxes pursuant to the ABC test
has the burden of proving that it comes within that
statutory exemption, which must be strictly construed.
Daw’s Critical Care Registry, Inc. v. Dept. of Labor,
supra, 42 Conn. Supp. 389. ‘‘In order to demonstrate
that [it] is not an employer and therefore has no liability
for unemployment taxes under the act, a recipient of
services must show that [it] has satisfied the criteria
necessary to establish nonliability under all three
prongs of the ABC test. . . . The test is conjunctive;
all parts must be satisfied to exclude [a recipient of
services] from the [a]ct.’’ (Citations omitted; internal
quotation marks omitted.) Latimer v. Administrator,
Unemployment Compensation Act, 216 Conn. 237, 246–
47, 579 A.2d 497 (1990). Stated otherwise, an enter-
prise’s failure to establish any single part of the test is
dispositive, and necessarily will result in a determina-
tion that the relationship at issue is one of employment.
Pursuant to the ABC test, an individual will not be
considered an employee of an enterprise if the enter-
prise can prove that, ‘‘[A] such individual has been and
will continue to be free from control and direction in
connection with the performance of such service, both
under his contract for the performance of service and
in fact; and [B] such service is performed either outside
the usual course of the business for which the service
is performed or is performed outside of all the places
of business of the enterprise for which the service is
performed; and [C] such individual is customarily
engaged in an independently established trade, occupa-
tion, profession or business of the same nature as that
involved in the service performed . . . . General Stat-
utes § 31-222 (a) (1) (B) (ii) (I) (II) and (III).’’ (Emphasis
in original; internal quotation marks omitted.) Matta-
tuck Museum-Mattatuck Historical Society v. Admin-
istrator, Unemployment Compensation Act, supra, 238
Conn. 277–78.
Part B of the ABC test is stated in the disjunctive.
Consequently, an enterprise such as the plaintiff may
satisfy part B by establishing either that the workers
at issue performed services outside of the usual course
of the enterprise’s business, or that they performed
services outside of all of the enterprise’s places of busi-
ness. See General Statutes § 31-222 (a) (1) (B) (ii) (II).
In my view, the board and the trial court correctly
concluded that the plaintiff had failed to satisfy either
of these alternatives.
In regard to the first subpart of part B, to decide
whether the work at issue was within an enterprise’s
‘‘usual course of business,’’ a court should examine
the specific business activities in which the enterprise
engages and determine which of those activities are
performed ‘‘on a regular or continuous basis.’’ Id., 279–
80. If the activities performed by the workers at issue
are ‘‘not performed [by the enterprise] on a regular
or continuous basis, then the [enterprise] has satisfied
[subpart one of part] B [by showing that] the activit[ies]
[are] ‘outside the usual course of the business’ of the
enterprise.’’ Id., 280. An activity need not comprise the
majority of an enterprise’s business or its primary line
of work in order to be within the enterprise’s usual
course of business, as long as it is performed with the
requisite frequency. Thus, when an activity is under-
taken by an enterprise ‘‘as an isolated instance,’’ the
activity will not be held to be within the enterprise’s
‘‘ ‘usual course of business,’ ’’ but when the enterprise
engages in that activity ‘‘as a regular or continuous
practice, the activity will constitute part of the enter-
prise’s usual course of business irrespective of its sub-
stantiality in relation to the other activities engaged in
by the enterprise.’’ Id.
In determining what activities comprise an enter-
prise’s usual course of business, a court should consider
evidence of the actual conduct of the enterprise, as well
as various indicators of what that enterprise holds itself
out to the public to be. Such indicators may include
the statements of the enterprise’s owners or principals,
as well as the enterprise’s official business documents
or promotional materials. See id., 282 (brochures offer-
ing art classes were evidence that classes were part
of museum’s usual course of business); New Haven
Country Club Corp. v. Administrator, Unemployment
Compensation Act, Superior Court, judicial district of
New Haven, Docket No. CV-970404924-S (September
17, 1999) (golf equipment imagery on insignia and golf
course map on restaurant menu were evidence that golf
was part of country club’s usual course of business);
Jori Enterprises, LLC v. Director, Dept. of Workforce
Services, 2015 Ark. App. 634, 474 S.W.3d 910, 914 (2015)
(statements on website were evidence that in-home
tutoring was company’s normal course of business);
McPherson Timberlands, Inc. v. Unemployment Ins.
Commission, 714 A.2d 818, 819 (Me. 1998) (advertise-
ments and contracts with landowners were evidence
that timber harvesting was part of timber management
and marketing company’s usual course of business);
Appeal of Niadni, Inc., 166 N.H. 256, 257–58, 93 A.3d 728
(2014) (print and online advertisements were evidence
that live entertainment was part of resort’s usual course
of business); Bros. Construction Co. v. Employment
Commission, 26 Va. App. 286, 290–91, 494 S.E.2d 478
(1998) (company president’s testimony was evidence
that siding installation was part of usual course of busi-
ness of company that installed siding, gutters and down-
spouts on residential and other buildings); but see
Carpetland, USA, Inc. v. Dept. of Employment Secu-
rity, 201 Ill. 2d 351, 355–56, 776 N.E.2d 166 (2002) (car-
pet installation not part of carpet seller’s usual course
of business where seller expressly limited its business
to sales, making clear in sales agreements that installa-
tion with subcontractor needed to be arranged sepa-
rately). In short, ‘‘a purported employer’s own definition
of its business is indicative of the usual course of that
business.’’ Sebago v. Boston Cab Dispatch, Inc., 471
Mass. 321, 333, 28 N.E.3d 1139 (2015).
In Mattatuck Museum-Mattatuck Historical Society
v. Administrator, Unemployment Compensation Act,
supra, 238 Conn. 282, we concluded that instructors
retained to teach art courses at an art museum were
employees of the museum for purposes of the act
because those art courses were part of the museum’s
‘‘ ‘usual course of business,’ ’’ even though the museum
‘‘operate[d] largely as an exhibition hall for regional
historic artifacts and art.’’ Id., 274. The museum had
utilized instructors to teach art courses for several
years. Id., 282. Moreover, it had held itself out to the
public as offering such courses by ‘‘distribut[ing] bro-
chures announcing the courses, class hours, location,
registration fees, and the instructors’ names.’’ Id. From
those materials, ‘‘the general public could infer that
the art courses were a regular part of the [museum’s]
business.’’ Id.
In the present matter, it is not disputed that about
10 percent of the plaintiff’s business is devoted to the
installation, service and repair of heating and cooling
equipment and security systems,4 and that these ser-
vices have been performed routinely on an ongoing
basis. As the board’s decision explains: ‘‘[T]he [plaintiff]
is an oil company which advertises and sells heating
and cooling equipment and security systems. The vast
majority of the heating and cooling equipment and secu-
rity systems sold by the [plaintiff] are installed by the
installers [at issue] on behalf of the [plaintiff]. The
[plaintiff] specifically advertises the sale of installed
heating and cooling equipment and security systems,
and it contracts directly with its customers regarding
that installation. The [plaintiff’s] vice president, David
Cohen, testified that the [plaintiff] sells security systems
and heating and cooling equipment in the normal course
of its business, and that it typically sells installation
along with the equipment. Cohen testified that only
‘rarely’ will the [plaintiff] sell a security system or heat-
ing and cooling equipment and not sell the installation.’’
(Emphasis in original.) The board also found that ‘‘the
[plaintiff] has employees [on payroll] who clean and
service its heating and cooling equipment, in addition
to the [contract] technicians . . . .’’5
In light of the foregoing, I can find no fault with
the board’s conclusion that the weight of the evidence
compelled a conclusion that the services performed by
the installers and technicians at issue were not outside
the usual course of the plaintiff’s business. The plaintiff
did not provide the services at issue in isolated
instances, but rather, did so on a regular and continuous
basis. It is of no moment that the work comprised a
minority of the plaintiff’s business activities overall. The
plaintiff, through its public facing advertisements and
dealings with its customers, held itself out as a seller
and installer of heating and cooling equipment and
security systems. Cohen, the plaintiff’s vice president,
essentially conceded that equipment installation ser-
vices were part and parcel of the plaintiff’s offerings.
The presence of technicians on the plaintiff’s payroll
demonstrates further that service work is regularly per-
formed by the plaintiff. I readily conclude, therefore,
that the plaintiff failed to prove that subpart one of part
B of the ABC test was satisfied as to both the installers
and the technicians at issue.6
I turn next to the second subpart of part B of the
ABC test, namely, whether the services at issue are
‘‘performed outside of all the places of business of the
enterprise for which the service is performed . . . .’’
General Statutes § 31-222 (a) (1) (B) (ii) (II). Because
it is beyond dispute that the plaintiff failed to prove
subpart one of part B, it was crucial for it to prove
subpart two to avoid liability for contributions to the
fund pursuant to the act.
Hewing closely to the remedial purpose of unemploy-
ment compensation statutes and the concomitant
requirement that they be construed liberally to effectu-
ate their purpose, many courts have concluded that the
phrase ‘‘places of business’’ encompasses not just the
office space or other premises that are an enterprise’s
base of operations, but also customer locations or other
remote sites where the enterprise carries on a major
portion of its business activities. Specifically, the phrase
‘‘places of business’’ has been construed to include:
parcels of land owned by third parties, for harvesters
of timber; Clayton v. State, 598 P.2d 84, 86 (Alaska
1979); McPherson Timberlands, Inc. v. Unemployment
Ins. Commission, supra, 714 A.2d 823; Miller v.
Employment Security Dept., 3 Wash. App. 503, 506, 476
P.2d 138 (1970); roadways, for a transporter of large
vehicles; Mamo Transportation, Inc. v. Williams, 375
Ark. 97, 103, 289 S.W.3d 79 (2008); a messenger service;
Chicago Messenger Service v. Jordan, 356 Ill. App. 3d
101, 116, 825 N.E.2d 315 (2005); a vehicle repossessor;
Midwest Property Recovery, Inc. v. Job Service of North
Dakota, 475 N.W.2d 918, 924 (N.D. 1991); and a taxicab
business;7 Employment Security Commission v. Lara-
mie Cabs, Inc., 700 P.2d 399, 407 (Wyo. 1985); hotel
meeting rooms, for a real estate association providing
continuing education to its members; Missouri Assn.
of Realtors v. Division of Employment Security, 761
S.W.2d 660, 664 (Mo. App. 1988); remote class sites, for
a decentralized academic institution; Vermont Institute
of Community Involvement, Inc. v. Dept. of Employ-
ment Security, 140 Vt. 94, 99, 436 A.2d 765 (1981); and
customer homes, for providers of home health-care ser-
vices; Home Care Professionals of Arkansas, Inc. v.
Williams, 95 Ark. App. 194, 199, 235 S.W.3d 536 (2006);
in-home tutoring services; Jori Enterprises, LLC v.
Director, Dept. of Workforce Services, supra, 474 S.W.3d
914; cable television installation services; TNT Cable
Contractors, Inc. v. Director, Dept. of Workforce Ser-
vices, 2015 Ark. App. 79, *5, 2015 WL 590249 (2015);
window washing services; L.A. McMahon Building
Maintenance, Inc. v. Dept. of Employment Security,
supra, 32 N.E.3d 143; carpet measuring services; Car-
petland U.S.A., Inc. v. Dept. of Employment Security,
supra, 201 Ill. 2d 391;8 and siding installation services.
Brothers Construction Co. v. Employment Commis-
sion, supra, 26 Va. App. 297.9
These decisions appear to recognize that there is
nothing inherent in work carried on in disbursed loca-
tions that renders those who perform it less subject to
unemployment, and the hardships that it causes, than
those who work in fixed locations maintained by their
employers. In determining that the locations at issue
were the enterprises’ places of business, the courts have
invoked such considerations as: whether, realistically,
the services offered by the enterprise were performed
at the location in question; see Mamo Transportation,
Inc. v. Williams, supra, 375 Ark. 103 (summarizing
cases); whether workers regularly represent the enter-
prise’s business interests at the location in question;
see Carpetland U.S.A., Inc. v. Dept. of Employment
Security, supra, 201 Ill. 2d 391; whether the enterprise
has a significant and business related presence at the
location in question; McPherson Timberlands, Inc. v.
Unemployment Ins. Commission, supra, 714 A.2d
822–23; whether the enterprise has contracted with the
owner of the premises at issue to perform work there;
see Clayton v. State, supra, 598 P.2d 86; McPherson
Timberlands, Inc. v. Unemployment Ins. Commission,
supra, 823; and whether the very nature of the business
activities in question dictated that they be performed
in places outside the enterprise’s own physical prem-
ises. See L.A. McMahon Building Maintenance, Inc. v.
Dept. of Employment Security, supra, 32 N.E.2d 143;
compare O’Dell v. Director, Dept. of Workforce Services,
2014 Ark. App. 504, 442 S.W.3d 897, 900 (2014) (where
medical note transcriptionists could have performed
transcription services at enterprise’s business office,
but instead did work wherever they chose, work sites
were not enterprise’s places of business).
Another line of cases makes clear that, where an
enterprise itself does not provide a service, but rather,
acts as a broker or referrer of individuals who will
provide that service, the places where the service is
performed are not ‘‘places of business’’ of the brokering
or referring enterprise. See, e.g., JSF Promotions, Inc.
v. Administrator, Unemployment Compensation Act,
Superior Court, judicial district of Hartford, Docket No.
CV-97-0575801 (April 3, 2002) (31 Conn. L. Rptr. 715,
719) (where enterprise’s business was to serve as bro-
ker or intermediary between manufacturers and sellers
to provide product demonstrators, supermarkets where
demonstrators worked were not enterprise’s places of
business), rev’d on other grounds, 265 Conn. 413, 828
A.2d 609 (2003); Daw’s Critical Care Registry, Inc. v.
Dept. of Labor, supra, 42 Conn. Supp. 402–403 (where
enterprise’s business was brokering nursing services,
rather than performing patient care, medical facilities
where nurses worked were not enterprise’s places of
business); Dept. of Employment, Training & Rehabili-
tation v. Reliable Health Care Services of Southern
Nevada, Inc., 115 Nev. 253, 259–60, 983 P.2d 414 (1999)
(where enterprise’s business was brokering health-care
workers, sole place of business was its administrative
office); Koza v. Dept. of Labor, 282 N.J. Super. 560,
563–64, 660 A.2d 1231 (1995) (where musician acted
essentially as agent to assemble various groups to play
shows, sites of performances were not his places of
business).
In regard to the second subpart of part B, the board
found as follows: ‘‘The [plaintiff] contracts directly with
its customers to provide installation of its heating and
cooling equipment and security systems in the custom-
ers’ homes, and to continue to service the equipment
and monitor the security systems. . . . [Accordingly,
those] homes have, by contract, become places of busi-
ness of the [plaintiff] . . . . [Moreover] the installers
and technicians represent the [plaintiff’s] interest when
they are in the homes of the [plaintiff’s] customers,
and the [plaintiff] profits from the services that are
performed in its customers’ homes. . . . [Additionally]
the [plaintiff] does not merely broker contractor ser-
vices but, rather, offers installation and servicing of
heating and cooling equipment and security systems to
the public.’’ The board also noted that the plaintiff rarely
sold equipment without also selling its installation, and
that the plaintiff had ‘‘long-term contracts with its cus-
tomers to service its heating and cooling equipment
and monitor its security systems.’’
I agree with the board’s conclusion that, consistent
with the law outlined herein, the customers’ homes
were the plaintiff’s ‘‘places of business’’ as contem-
plated by subpart two of part B of the ABC test. As is
clear from the evidence discussed in my analysis of
subpart one of part B, the plaintiff was not merely a
broker of installation and repair services, but rather, a
direct provider of such services. By their very nature,
these services needed to be provided in customers’
homes and could not occur at the plaintiff’s physical
plant. The plaintiff contracted directly with the home-
owners for installation and ongoing services, thereby
authorizing the plaintiff to have a significant, business
related presence in the customers’ homes. By installing
the equipment that the plaintiff had sold to its custom-
ers, specifically on an installed basis, the installers rep-
resented and furthered the plaintiff’s business interests.
So too did the technicians, when they serviced and
repaired the equipment. Thus, both the installers and
the technicians supported the plaintiff’s ongoing busi-
ness relationships with the customers through their
work in the homes. As the trial court explained, ‘‘[t]he
plaintiff engages the [installers and the technicians] to
perform certain tasks as part of a continuing provision
of services at the customers’ locations.’’ For these rea-
sons, I too, like the board and the trial court, conclude
that the installers’ and technicians’ services were not
performed outside of all of the plaintiff’s places of busi-
ness so as to satisfy subpart two of part B of the ABC
test. Furthermore, because the plaintiff also failed to
satisfy subpart one, part B in its entirety was unmet,
thereby establishing that the technicians and installers
were employees of the plaintiff for purposes of the act.
The majority appears to find insufficient guidance in
the case law applying subpart two of part B and, there-
fore, invokes two general principles to govern the reso-
lution of this case. Those principles are: (1) that related
statutes should be construed harmoniously; and (2) the
conjunctive nature of the ABC test, ‘‘which suggests
that no one part of the test should be construed so
broadly—and, therefore, made so difficult or impossible
to meet—that the other two parts of the test are ren-
dered superfluous.’’ I am not persuaded that these con-
siderations, rather than the most relevant case law from
other jurisdictions, should inform our interpretation of
subpart two of part B or, in any event, that they compel
a different result.
The majority first looks to General Statutes § 31-223
(a), a provision upon which neither the parties, the
board nor the trial court have relied in their construc-
tion of the ABC test. This subsection, which delineates
the boundaries of employers’ nonvoluntary liability
under the act, dates to the act’s inception in 1936; Public
Acts 1936, Spec. Sess., November, 1936, c. 2, § 2; and
the particular language cited by the majority was part
of a 1939 amendment. Public Acts 1939, c. 310, § 3.
Consequently, I am skeptical that § 31-223 (a) provides
much insight into the meaning of ‘‘places of business’’
as used in § 31-222 (a) (1) (B) (ii) (II), a provision that
was added more than thirty years later to comply with
a federal mandate, specifically, by adopting a test using
language suggested by the United States Department
of Labor. See Public Acts 1971, No. 835, § 1. In short,
(1) our legislators did not even craft the ABC test, and
(2) their purpose in adopting that test was to meet
an extrajurisdictional requirement, and not to provide
what they otherwise believed was a necessary supple-
ment to our preexisting state statutory scheme. Under
those circumstances, it is simply unrealistic to presume,
without question, that § 31-222 (a) (1) (B) (ii) (II) was
drafted by our legislature with a keen eye toward creat-
ing a harmonious, interlocking body of unemployment
compensation laws in Connecticut.
In any event, even accepting the majority’s reasoning
that ‘‘places of business,’’ as used in § 31-222 (a) (1)
(B) (ii) (II), necessarily means ‘‘premises under [an]
employer’s control,’’ as used in § 31-223 (a), I still would
reach the conclusion that the second subpart of part B
of the ABC test is unsatisfied in the present matter.
Again, the plaintiff contracts directly with its customers
to install equipment in their homes, and to provide
various continuing services in those homes thereafter.
Accordingly, the customers have authorized the plain-
tiff, at the time installations and other services are being
provided, to enter their homes and exert dominion and
control over the premises to the extent it is necessary
to provide those services. Even under the majority’s
construction of ‘‘places of business,’’ therefore, the
plaintiff failed to prove that the installers and techni-
cians provided services outside of all of the plaintiff’s
places of business.10
Additionally, I disagree that interpreting ‘‘places of
business’’ to include, in appropriate cases, customers’
homes would make it prohibitively difficult for the
plaintiff, or other similarly situated enterprises, to sat-
isfy part B of the ABC test when hiring individuals to
work at locations apart from their own central facilities.
As I have explained, part B may be satisfied by showing
either that the services at issue are outside the usual
course of an enterprise’s business, or that they are per-
formed outside of all of the enterprise’s places of busi-
ness. See General Statutes § 31-222 (a) (1) (B) (ii) (II).
Accordingly, an enterprise such as the plaintiff can
retain individuals to do work in its customers’ homes
and still satisfy part B if it can show that those individu-
als are doing work that the enterprise does not regularly
and consistently perform. Alternatively, if an enterprise
can show that it is a mere broker of the services at
issue, the locations where the services are performed
will not be deemed the enterprise’s places of business.
In short, the two subparts of part B work together, and
a court should not, like the majority, view one subpart
in isolation.
In the present case, if the plaintiff had established that
the services provided by the installers and technicians
were not part of the plaintiff’s usual course of business,
or that it merely was referring customers to third-party
workers instead of offering to do the work itself, it
would be of no moment that the services were per-
formed inside of the homes of the plaintiff’s customers.
In this sense, part B operates no differently than it
does when all of an enterprise’s business activities are
performed in a central physical location. If the workers
are engaged to perform some service that the enterprise
does not typically provide, part B will be satisfied,
regardless of the locale of the services.
Finally, to reiterate, the act is a remedial one, and
we are bound to interpret it liberally in favor of those
it is intended to benefit.11 Daw’s Critical Care Registry,
Inc. v. Dept. of Labor, supra, 42 Conn. Supp. 411; see
General Statutes § 31-274 (c). Accordingly, to the extent
this case presents a close question, we should decide
it in a manner that will result in more, rather than less,
coverage for workers who are involuntarily unem-
ployed.12
For the foregoing reasons, I respectfully dissent.
1
In concluding herein that the plaintiff failed to establish that part B of
the ABC test was satisfied, I rely on the following factual findings of the
board, to which this court must defer:
‘‘1. The [plaintiff] is primarily in the business of home heating oil delivery. It
also advertises and sells heating and cooling equipment, and the installation,
maintenance and repair of such equipment. For example, the [plaintiff]
advertises its twenty-four hour or ‘no heat’ call service. In addition, the
[plaintiff] advertises and sells home security alarm systems, and the installa-
tion, maintenance, and monitoring of such systems. The [plaintiff] specifi-
cally advertises the sale of installed heating and cooling equipment and
security systems, and it contracts directly with its customers regarding
that installation.
‘‘2. Approximately 90 [percent] of [the plaintiff’s] business is generated
from its home heating oil delivery service. The remaining [percentage] of
the business results from its heating and cooling system installation and
repair, home alarm system installation and maintenance and its service work
which is routinely part of the service contracts it offers its customers.
The [plaintiff] advertises home heating oil delivery, heating and cooling
installation, monitoring and maintenance, tank removal, service work and
home alarm system installation to its customers and potential customers
in the yellow pages.
‘‘3. The [plaintiff] does not own or operate the tools, machinery or heavy
duty vehicles required to install heating systems, tank removal or home
alarm installation. As a result, it ‘contracts’ the work to individuals who
routinely perform such work either for their own business[es] or self employ-
ment. The vast majority of the heating and cooling equipment and security
systems sold by the [plaintiff] are installed by the installers on behalf of
the [plaintiff]. After installation, the [plaintiff] has long-term arrangements
with its customers to service the heating and cooling equipment and to
provide monitoring of the security systems. . . .
‘‘16. Installers and technicians generate a percentage of [the plaintiff’s]
revenues. This portion of [the plaintiff’s] business and profitability is depen-
dent on the installation/service work provided by the installers/technicians.
‘‘17. The [plaintiff] sells service contracts to its customers which is central
and core to its home heating oil delivery service. While the [plaintiff] main-
tains a staff of employees to perform such services, it ‘contracts’ with the
technicians to perform the same/similar services to its customers. . . .
‘‘28. The technicians and installers performed all work outside of the
offices of [the plaintiff].’’ (Emphasis in original.)
The plaintiff filed a motion to correct with the board; see Practice Book
§ 22-4; in which it requested changes to, inter alia, findings sixteen and
seventeen. The board denied those requests and, thereafter, the plaintiff
raised a claim in the trial court that that denial was improper. See Practice
Book § 22-8 (a). I have reviewed the trial court’s decision in this regard and
agree with its determination that correction of these findings was unwar-
ranted because the plaintiff did not prove that the standard of Practice Book
§ 22-9 (b) had been satisfied.
2
I disagree with the plaintiff’s additional claim on appeal that, due to the
plaintiff’s filing of a motion to correct pursuant to Practice Book § 22-4; see
footnote 1 of this opinion; a less deferential standard governed the trial
court’s review of the board’s factual findings, thereby permitting it to con-
sider all of the record evidence and to make its own findings and credibility
determinations. As the relevant Practice Book provisions make clear, the
motion to correct permits an appealing party to make specific challenges
to the board’s factual findings, and the board’s decision on the motion
thereafter is reviewable by the court pursuant to the standard articulated
in Practice Book § 22-9 (b). The court may order the requested corrections
if it concludes that that standard has been met, but otherwise must defer
to the factual findings of the board pursuant to the general standard of
review governing administrative agency decisions.
3
See generally Office of Legislative Research, Report No. 2013-R-0027,
‘‘Unemployment Insurance Questions,’’ (2013) p. 3 (comparing common-law
and ABC tests for employment and explaining that, ‘‘[w]hile part A of the
[ABC] test essentially codifies the common law test, parts B and C create
additional requirements’’), available at http://www.cga.ct.gov/2013/rpt/2013-
R-0027.htm (last visited March 1, 2016).
4
The plaintiff also performs monitoring of security systems.
5
There is ample record support for the board’s findings. Printouts from
the plaintiff’s website and its yellow page advertisements were in evidence
in the administrative proceedings, and Cohen confirmed that the website
advertised fully installed oil tanks, furnaces, air conditioning systems and
security systems. Cohen explicitly and repeatedly agreed that selling, install-
ing and servicing of heating, air conditioning and security systems were
parts of the plaintiff’s ‘‘product mix’’ and normal course of business. He
estimated that the plaintiff performed $5 million worth of equipment installa-
tions annually. Cohen testified additionally that the plaintiff had fifty service
technicians on its payroll, and that part of their work was the same type
of work that the contract technicians performed.
6
The plaintiff’s claim that the usual course of business prong is satisfied
as to the installers because it does not have any employees on payroll that
perform installation services is not supported by the governing law, which
directs us to look at the services that an enterprise itself offers to the public
and performs, and not merely to the activities of those individuals whom
that enterprise already concedes to be its employees. Adopting the rationale
suggested by the plaintiff would enable an enterprise to contract out the
entirety of its workforce, and then claim that none of the contract workers
were its employees because there is nobody on payroll who is performing
the same tasks. The infirmity of such a proposed rule is apparent.
7
But see Commissioner of the Division of Unemployment Assistance v.
Town Taxi of Cape Cod, Inc., 68 Mass. App. 426, 430–31, 862 N.E.2d 430
(2007) (taxicab routes were not places of business of taxicab company); see
also Athol Daily News v. Board of Review of the Division of Employment &
Training, supra, 439 Mass. 179 (delivery routes were not places of business
of newspaper).
8
But see Carpet Remnant Warehouse, Inc. v. Dept. of Labor, 125 N.J.
567, 592, 593 A.2d 1177 (1991) (customer homes where carpets installed
were not places of business of carpet company).
9
But see Sinclair Builders, Inc. v. Unemployment Ins. Commission, 73
A.3d 1061, 1072–73 (Me. 2013) (jobsites were not places of business of
general construction company); Burns v. Labor & Industrial Relations
Commission, Docket No. WC 44749, 1992 WL 59736, *3 (Mo. App. 1992)
(jobsites were not places of business of roofing company); Metro Renova-
tion, Inc. v. State, 249 Neb. 337, 347, 543 N.W.2d 715 (1996) (jobsites were
not places of business of remodeling and renovation contractor), overruled
on other grounds by State v. Nelson, 274 Neb. 304, 310, 739 N.W.2d 199
(2007); Barney v. Dept. of Employment Security, 681 P.2d 1273, 1275 (Utah
1984) (jobsites were not places of business of drywall contractor).
The part B analyses in these construction cases are abbreviated and appear
to be driven, to some degree, by the reviewing courts’ own sensibilities,
particularly a concern that the common practice of subcontracting in the
construction industry would be disrupted by a holding that a contractor’s
places of business include jobsites. The scope of coverage of unemployment
compensation statutes, however, is a matter for legislative determination.
Notably, Connecticut’s detailed provisions specifically include, or exempt,
a number of particular types of workers. See General Statutes § 31-222 (a)
(1) and (5). If the administrator, the board or a reviewing court were to
apply the ABC test too broadly, in the legislature’s view, it easily could
respond by enacting an overriding exemption.
10
Notably, neither § 31-222 (a) (1) (B) (ii) (II) nor § 31-223 (a) provide
that a putative employer may be exempted from making contributions pursu-
ant to the act when the workers at issue provide services outside of, for
example, ‘‘the enterprise’s offices or other facilities,’’ or ‘‘premises owned
or leased by the enterprise,’’ as they easily could have done. Instead, both
statutes used broader language that appears to encompass other locations
in addition to the employer’s own offices, facilities or premises.
11
I disagree with the suggestions of the majority that I rely inordinately
on the remedial nature of the act, that the jurisprudential instruction to
construe remedial statutory provisions in favor of their beneficiaries is, in
essence, an overbroad platitude, and that the result I reach is contrary to
the intent of the legislature. In short, the meaning of § 31-222 (a) (1) (B)
(ii) (II) is far from clear from the text of the statute, and my consideration
of the remedial nature of the act, in conjunction with numerous cases
from other jurisdictions construing the very language at issue, is entirely
appropriate. Additionally, as we noted previously herein, our legislature
expressly has mandated that the act ‘‘be construed, interpreted and adminis-
tered in such manner as to presume coverage, eligibility and nondisqualifica-
tion in doubtful cases.’’ General Statutes § 31-274 (c).
12
The majority speculates that interpreting ‘‘ ‘places of business’ ’’ to
include, in appropriate cases, customer homes could result in multiple enti-
ties being taxed for the services of the same worker(s). Notably, there is
no claim in this case that any of the installers or technicians at issue made
contributions to the fund in connection with their activities at the homes
of the plaintiff’s customers, nor is there any indication that the administrator
has attempted to enforce the act in such a fashion.