127 Conn. App. 780
Conn. App. Ct.2011Background
- Plaintiff Jason Roberts, Inc. employed Derose as a concrete artisan from 1998 to 2000.
- To increase Derose's earnings, plaintiff facilitated Derose setting up his own business as a licensed dealer.
- In May 2001, Derose signed a licensed dealer agreement with plaintiff, becoming a dealer for the plaintiff.
- The agreement imposed controls on Derose (scheduling, daily status reports, uniform wearing, vehicle obligations, non-competition, and absence notice) and restricted Derose's ability to compete for two years after termination.
- Derose remained a licensed dealer in 2001–2002, but terminated the arrangement at end of 2002; he then claimed unemployment benefits, prompting an audit.
- The auditor concluded Derose was an employee for unemployment compensation purposes; the administrator assessed contributions; plaintiff appealed; board and referee applied the ABC test to determine employee status; plaintiff challenged the decision as misapplying the law and argued a franchise exception under § 42-133e (b).
- The court ultimately affirmed the board’s decision, holding the ABC test was correctly applied and there is no basis to exempt the relationship as a franchise under § 42-133e (b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ABC test was correctly applied to determine employee status | Derose should be outside ABC; ABC not applicable to franchise-like relationship | ABC test governs employee status when no franchise exemption applies | ABC test correctly applied; Derose found employee |
| Whether § 42-133e (b) franchise exemption applies to preclude ABC | Existence of a franchise would preclude unemployment coverage | Statute provides no express exemption for franchises | No franchise exemption; ABC remains applicable |
| Whether the court should look to franchise existence to defeat ABC status | Franchise relationship would remove the relation from the act | Statute not ambiguous; no clear exemption | Court cannot rewrite statute; franchise existence not found to preclude ABC |
Key Cases Cited
- Mattatuck Museum-Mattatuck Historical Society v. Administrator, 238 Conn. 273 (Conn. 1996) (standard for reviewing administrative action; deferential to board on facts, legal questions reviewed de novo)
- Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311 (Conn. 2009) (statutory interpretation—intent of legislature in statute as written)
- State ex rel. Heimov v. Thomson, 131 Conn. 8 (Conn. 1944) (statutory construction principle: courts may not rewrite statute to include omissions)