2014 COA 63
Colo. Ct. App.2014Background
- Visible provides CART services to clients under contracts, using captionists who perform live translation.
- Thirteen workers were engaged by Visible as independent contractors under written agreements.
- Division initially determined the workers’ services were covered employment subject to unemployment taxes.
- A hearing officer found the workers were independent contractors, free from Visible’s control and in independent business ventures.
- Panel affirmed lack of control and direction but remanded to consider whether workers were customarily engaged in independent CART businesses.
- On remand, a different hearing officer again found eleven of the thirteen workers were independent contractors; Panel later concluded eleven were not independently engaged and thus were in covered employment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard to prove independent contractor status | Visible argues for a multi-factor test under 8-70-115(1)(b)-(c). | Panel previously emphasized limited factors and relied on one criterion; Softrock approach governs. | Multi-factor framework applied; not limited to a single factor. |
| Role of ‘services to others’ as dispositive factor | Softrock’s multi-factor approach; services to others is not dispositive. | Panel relied heavily on whether workers provided CART to others besides Visible. | Services to others is not controlling; other factors must be considered. |
| Whether the eleven workers were customarily engaged in independent CART businesses | Record shows multiple factors supporting independent businesses. | Panel found lack of evidence that the eleven had independent businesses. | Record supports independent businesses; remand to reinstate the hearing officer’s finding for eleven workers. |
| Judicial review standard applied to factual findings | Substantial evidence supports the independence conclusion. | Panel’s factual determinations were proper. | Evidence supports the hearing officer; defer to factual findings where supported. |
Key Cases Cited
- Softrock Geological Services, Inc. v. Industrial Claim Appeals Office, 328 P.3d 222 (Colo. App. 2012) (endorsed multi-factor framework for independent contractor status)
- Western Logistics, Inc. v. Industrial Claim Appeals Office, 328 P.3d 247 (Colo. App. 2013) (criticized Softrock’s approach on different statutory context)
- SZL, Inc. v. Indus. Claim Appeals Office, 254 P.3d 1180 (Colo. App. 2011) (burden on employer to rebut employment presumption)
- Long View Sys. Corp. USA v. Indus. Claim Appeals Office, 197 P.3d 295 (Colo. App. 2008) (multi-factor considerations for independent contractor status)
- Valentine v. Mountain States Mut. Cas. Co., 252 P.3d 1182 (Colo. App. 2011) (read statutes cohesively across sections)
- Speedy Messenger & Delivery Serv. v. Indus. Claim Appeals Office, 129 P.3d 1094 (Colo. App. 2005) (identifies various factors for independent contractor status)
- Barge v. Indus. Claim Appeals Office, 905 P.2d 25 (Colo. App. 1995) (business presence indicators as factors)
- Carpet Exch. of Denver, Inc. v. Indus. Claim Appeals Office, 859 P.2d 278 (Colo. App. 1993) (advertising and business presence as indicators)
- Moffett v. Life Care Ctrs. of Am., 219 P.3d 1068 (Colo. 2009) (read related statutory provisions to give full effect)
- Allen Co. v. Indus. Comm'n, 762 P.2d 677 (Colo. 1988) (standard for reviewing agency factual findings)
- Davison v. Indus. Claim Appeals Office, 84 P.3d 1023 (Colo. App. 2004) (de novo review for legal standards)