Milano's, Inc. v. Kansas Department of Labor
293 P.3d 707
| Kan. | 2013Background
- Milano’s purchased Club Orleans in 2002 and began treating dancers as independent contractors in 2004.
- Dancers were paid only tips, with no nominal weekly wage after 2004.
- In 2005, a Department of Labor audit concluded dancers were employees under K.S.A. 44-703(i)(3)(D).
- The hearing officer held dancers were wages-backed employees under K.S.A. 44-703(i)(3)(D) and K.S.A. 44-703(o).
- Milano’s challenged the ruling, and the district court affirmed the hearing officer’s findings and conclusion.
- Court of Appeals affirmed, holding the dancers were employees under the KS Employment Security Law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dancers are employees under common-law control. | Milano’s contends no control or ordinary-course integration exists. | Labor asserts Milano’s controlled the dancers and the work was within its ordinary course. | Dancers are employees under common-law control; Milano’s right to control established. |
| Whether auxiliary definitions or wages definitions control outcome. | If auxiliary definitions apply, dancers might not be employees. | Auxiliary definitions support employee status when control is present and wages arise. | Court avoids reliance on auxiliary definitions; controls-based conclusion suffices; no contrary result. |
| Whether the Court of Appeals erred in finding abandonment of arguments. | Milano’s argues appellate abandonment affected appeal. | Labor argues abandonment is not dispositive. | Any abandonment finding is harmless; judgments affirmed. |
Key Cases Cited
- Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97 (1984) (emphasis on right of control in employer-employee analysis)
- Hartford Underwriters Ins. Co. v. Kansas Dept. of Human Resources, 272 Kan. 265 (2001) (importance of control, supervision, and related factors)
- Jones v. City of Dodge City, 194 Kan. 777 (1965) (primary test: right of control over work)
- Crawford v. Dept. of Human Resources, 17 Kan. App. 2d 707 (1989) (factors in determining employment and control)
- In re Marriage of Ross, 245 Kan. 591 (1989) (interpretive framework for statutory construction evidence)
- Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745 (2008) (statutory interpretation and context guidance)
- Kansas Dept. of Revenue v. Powell, 290 Kan. 564 (2010) (standard of review for agency interpretations)