Hickey v. BOMERS
2011 D.C. App. LEXIS 558
| D.C. | 2011Background
- Bomers was hired by Hickey on January 16, 2006, as his legal secretary in a direct employment arrangement.
- Bomers was paid hourly ($18) and received no tax withholding or benefits; she was issued Form 1099 and prepared her own tax filings as a contractor.
- The work setup included shared office space, a defined schedule (8:30–5:00, M–F with lunch), and Hickey billed hours for Bomers' work using his equipment.
- Bomers performed secretarial duties under Hickey's direction, with Hickey controlling tasks and priorities rather than Bomers supervising or directing the work.
- Bomers’ last day of work was December 11, 2008; Hickey later replaced her contract with another contractor and both OAH orders addressed employee status and misconduct.
- Hickey challenged unemployment benefits by petitioning for review; the agency issued Final Order I finding Bomers to be an employee, and Final Order II addressing misconduct concluded Bomers was not fired for misconduct, which Hickey challenged in court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Bomers an employee or independent contractor? | Hickey contends Bomers was an independent contractor. | Bomers' status is determined by common-law control factors; the ALJ found employee status. | Bomers was an employee. |
| Was Bomers terminated for misconduct? | Hickey argued Bomers was fired for misconduct (absenteeism/other factors). | ALJ held absence did not amount to misconduct and Bomers was not terminated for misconduct. | The ALJ's misconduct ruling was reversed; Bomers was terminated for simple misconduct. |
Key Cases Cited
- RosExpress, Inc. v. District of Columbia Dep't of Emp't Servs., 602 A.2d 659 (D.C. 1992) (defines employment status under common-law for unemployment benefits)
- Spackman v. District of Columbia Dep't of Emp't Servs., 590 A.2d 515 (D.C. 1991) (sets the mixed-factor test for employee vs. independent contractor)
- Morris v. United States Envtl. Prot. Agency, 975 A.2d 176 (D.C. 2009) (outlines standard of review and misconduct framework for unemployment cases)
- Brown v. Corr. Corp. of Am., 942 A.2d 1122 (D.C. 2008) (presumption of eligibility unless employer proves misconduct)
- Bowman-Cook v. Wash. Metro. Area Transit Auth., 16 A.3d 130 (D.C. 2011) (distinguishes gross vs. simple misconduct and notices absence alone is insufficient)