STANDARD OIL OF CONNECTICUT, INC. v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT
(SC 19493)
Supreme Court of Connecticut
Argued October 15, 2015—officially released March 15, 2016
Rоgers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.
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Procedural History
Appeal from the decision of the Employment Security Appeals Division, Board of Review, upholding the decision of an appeals referee, which affirmed the determination of the defendant that certain persons who had performed services for the plaintiff were the plaintiff‘s employees, brought to the Superior Court in the judicial district of Fairfield and tried to the court, Hon. Richard P. Gilardi, judge trial referee, who, exercising the powers of the Superior Court, rendered judgment dismissing the plaintiff‘s appeal, from which the plaintiff appealed. Reversed; judgment directed.
Glenn A. Duhl, with whom was Angelica M. Wilson, for the appellant (plaintiff).
Thomas P. Clifford III, assistant attorney general, with whom were Krista Dotson O‘Brien, assistant attorney general, and, on the brief, George Jepsen, attorney general, and Phillip M. Schulz, assistant attorney general, for the appellee (defendant).
Michael C. Harrington and Jennifer A. Corvo filed a brief for the Connecticut Business and Industry Association, Inc., as amicus curiae.
Opinion
ZARELLA, J. The plaintiff, Standard Oil of Connecticut, Inc., appeals from the judgment of the trial court dismissing its appeal from the decision of the Employment Security Appeals Division, Board of Review (board). The board denied in part the plaintiff‘s motion to correct findings of fact made by the appeals referee and concluded that the workers at issue are the plaintiff‘s employees under the test set forth in the Connecticut Unemployment Compensation Act (act),
The following relevant facts and procedural history are set forth in the trial court‘s memorandum of decision. “The plaintiff . . . [is in the business of selling and delivering home heating oil and also] provides home heating and alarm systems to residential customers. In doing so, it utilizes the services of certain individuals who [clean, service and install] heating/air conditioning systems or who [install] seсurity systems (installers/technicians). In June of 2008, the . . . Department of Labor conducted an audit of the plaintiff. Following the audit, the [defendant] determined that the installers/technicians were misclassified as independent contractors rather than as employees. The [defendant] further concluded that, due to this misclassification, the plaintiff owed $41,501.38 in unemployment contribution taxes, plus interest, for 2007 and 2008.
“The plaintiff appealed [from] the [defendant‘s] decision to the [appeals referee], who conducted an evidentiary hearing. Following this hearing, the appeals referee issued a decision with findings of fact, affirming the [defendant‘s] decision. The plaintiff then appealed to the [board]. The board modified the appeals referee‘s findings of fact and made additional findings in a decision on March 21, 2012. It determined that the plaintiff had met part C (
The plaintiff filed claims of error and an appeal with the trial court. Following oral argument, the court dismissed the appeal on March 24, 2014. The court rejected the plaintiff‘s claim seeking to correct the board‘s factual findings and upheld the board‘s determination that the plaintiff had failed to satisfy parts A and B of the ABC test. This appeal followed.
“[W]hen interpreting provisions of the act, we take as our starting point the fact that the act is remedial and, consequently, should be liberally construed in favor of its beneficiaries. . . . Indeed, the legislature underscored its intent by expressly mandating that the act shall be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualification in doubtful cases.
Having conducted a comprehensive review of the board‘s modified findings of fact, we conclude that the trial court improperly determined that the installers/technicians were the plaintiff‘s employees under the first two prongs of the ABC test.1
I
We begin with the plaintiff‘s claim that the installers/technicians were free from its control and direction under part A of the ABC test. The plaintiff contends that the uncontroverted evidence establishes that the installers/technicians retained control and direction over the method and means of their work. The defendant responds that the installers/technicians performed their work subject to the plaintiff‘s control and direction. We agree with the plaintiff.
The following additional facts are relevant to our resolution of this claim. Although the board modified its findings
The court further observed, however, that the board had acknowledged certain factors indicating that “the plaintiff did not exercise control and direction. These included that the installers/technicians signed independent contractor agreements stating they would exercise independence; that they were free to accept or reject assignments, [could] determine the days on which they [would] work, [were] not supervised while performing their work; that the plaintiff [did] not check on their work; that they [were] licensed and certified, that the plaintiff [did] not provide them with an employee handbook and [did] not pay them for training or require training; that the installers/technicians [could] hire employees to assist them and [were] free to supervise their employees; that the installers/technicians [could] realize a profit or a loss; and that they provide[d] their own tools, transportation, and insurance.” The court nonetheless concluded that, although the plaintiff had made a “compelling
We begin by setting forth the standard of review. It is well established that “[r]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative 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. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . [A]n agency‘s factual and discretionary determinations are to be accorded considerable weight by the courts.” (Citation omitted; internal quotation marks omitted.) JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 417–18.
With respect to the governing legal principles, we have stated that “[t]he fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work. . . . The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent. . . . An employer-employee relationship does not depend upon the actual exercise of the right to control. The right to control is sufficient. . . . The decisive test is who has the right to direct what shall be done and when and how it shall be done? Who has the right of general control?” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Latimer v. Administrator, Unemployment Compensation Act, 216 Conn. 237, 248, 579 A.2d 497 (1990). Under this test, we have stated that “[a]n independent contractor is one whо, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his or her employer, except as to the result of his work.” (Internal quotation marks omitted.) Darling v. Burrone Bros., Inc., 162 Conn. 187, 195, 292 A.2d 912 (1972); accord Alexander v. R. A. Sherman‘s Sons Co., 86 Conn. 292, 297, 85 A. 514 (1912). The plaintiff bears the burden of showing that the workers hired as independent contractors “[have] been and will continue to be free from control and direction in connection with the performance of . . . service[s], both under [their] contract for the performance of service[s] and in fact . . . .” (Internal quotation marks omitted.) JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 418.
Part A of the ABC test provides that “[s]ervice performed by an individual shall be deemed to be employment . . . unless and until it is shown to the satisfaction of the administrator that . . . 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 . . . .”
We initially addressed the issue of control and direction in F.A.S. International, Inc. v. Reilly, supra, 179 Conn. 507. In that case, we concluded that the trial court properly had sustained the plaintiff‘s appeal from the administrator‘s determination that the professional artists, writers and photographers employed in the plaintiff‘s correspondence schools to analyze and critique students’ lessons were employees of the plaintiff rather than independent contractors. See id., 513, 516. We explained that the professionals “employed different techniques or approaches in their criticism and analysis of student work. The plaintiff‘s only concern was with the result or end product of their efforts. [The plaintiff] exercised no control over the means and method of their performance. Although it is true, as claimed by the administrator, that [the plaintiff] would not permit its professionals to hire others to evaluate student work which had been given to them for review, this prohibition is not significant because contracts for personal services cannot be assigned without consent. . . . It is obvious that [the plaintiff] depended upon the skill and reputation of the artists, writers and photographers it selected to produce a product of quality. The [plaintiff] did not rely on rote correction of objective examinations.”4 (Citation omitted.) Id., 513.
We next considered the issue of control and direction in Latimer. See Latimer v. Administrator, Unemployment Compensation Act, supra, 216 Conn. 247–49. Unlike in F.A.S. International, Inc., we concluded in Latimer that the trial court properly had sustained the administrator‘s determination
Shortly thereafter, in Stone Hill Remodeling v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Waterbury, Docket No. 089398 (February 21, 1991) (3 Conn. L. Rptr. 829), the Superior Court cited Latimer in concluding that the administrator reasonably could have found that a worker who performed plumbing, electrical, carpentry and siding work at a construction site for the plaintiff, who was a home improvement contractor, was under the plaintiff‘s general control and direction, at least with respect to the carpentry work that he had performed for the plaintiff. Id., 830. The court cited the board‘s findings that the worker “at times work[ed] side by side with the [plaintiff on the carpentry work]. The [plaintiff] furnished the worker with tools and materials, indicating an element of control . . . . The carpentry work performed by the [worker] was under the supervision of the [plaintiff].” Id., 829. The plaintiff thus failed to sustain its burden of demonstrating that the worker was free from its control and direction. See id., 830.
The court acknowledged that other factors tended to indicate control and direction, including that the nurses submitted payment invoices to the plaintiff indicating the time and location of their work, the invoices were on forms provided by the plaintiff, the times indicated on the invoice forms needed to be certified by the facility before being processed by the plaintiff, and the nurses were paid at an hourly rate. Id., 397. The court determined, however, that the manner of remuneration was ” ‘not decisive or controlling’ ” because оf the “reality” that the plaintiff “served in the nature of [a] conduit for payment.” Id., 398. The court finally observed, citing Latimer, that the characterization of the nurses in their employment agreement with the plaintiff as independent contractors who were not subject to the plaintiff‘s control and direction was “entitled to some consideration . . . .” Id., 399.
This court again considered the issue of control and direction in Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 651 A.2d 1286 (1995). Although the plaintiff in Tianti brought the action pursuant to
The Superior Court addressed the issue more recently in JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, Superior Court, Docket No. CV-97-0575801. In reversing the board‘s decision and concluding that product
Applying the foregoing principles, we conclude that the board‘s modified findings of fact did not reasonably support its conclusion that the plaintiff in the present case had the right to control the means and methods of the work performed by the installers/technicians during the years in question.6 The plaintiff did not own or operate the tools, machinery or heavy duty vehicles required for the installation of heating systems, tank removal or home alarm installation. It thus contracted with the installers/technicians, who were licensed and certified to perform their services in accordance with state law and who routinely performed such work for their own businesses or through self-employment. The contracts between the plaintiff and the installers/technicians provided that the installers/technicians shall exercise independent judgment and control in the execution of any work they conduct for the plaintiff. See Daw‘s Critical Care Registry, Inc. v. Dept. of Labor, supra, 42 Conn. Supp. 399 (plaintiff‘s characterization of nurses in employment agreement between them as not subject to plaintiff‘s control and direction was “entitled to some consideration,” although not controlling). Consistent with this contract provision, the plaintiff did not supervise the installers/technicians and did not inspect their work. In fact, there was no representative of the plaintiff on a customer‘s premises at any time during an installation project, either while it was in progress or upon its completion. The same was true for the technicians. See id., 394–96 (rendering of nurses’ services under facilities’ direction and plaintiff‘s practice of not sending representative to check on nurses’ work indicated absence of control and direction); cf. Latimer v. Administrator, Unemployment Compensation Act, supra, 216 Conn. 250–51 (reporting by personal care assistants of daily activities to plaintiff‘s attorney, who personally monitored level of care given to plaintiff, indicated control and direction).
In addition, the installers/technicians were free to accеpt or reject any assignment offered to them without adverse consequences. Although an assignment, once accepted, had to be performed within a designated timeframe set by the plaintiff and the customer, the installers/technicians chose the days on which it was convenient for them to work. See Daw‘s Critical Care Registry, Inc. v. Dept. of Labor, supra, 42 Conn. Supp. 394–95 (arranging times mutually convenient for nurses and medical facilities instead of establishing hours when nurses must work indicated absence of control and direction); cf. Tianti v. William Raveis Real Estate, Inc., supra, 231 Conn. 698 (requiring salespersons to work specified hours indicated control and direction); Latimer v. Administrator, Unemployment Compensation Act, supra, 216 Conn. 250 (establishing hours when personal care assistants must work after they made hours of availability known to plaintiff indicated control and direction). Each of the installers/technicians also had an independent business that provided the same type of services that they provided for the plaintiff. As a consequence, many installers/technicians had their own business cards, advertised their businesses and earned an undetermined amount of their income from sources other than the plaintiff.
Furthermore, after an assignment was accepted, the installers/technicians used their own equipment and tools to complete each project. See Daw‘s Critical Care Registry, Inc. v. Dept. of Labor, supra, 42 Conn. Supp. 395 (failing to furnish tools, equipment or materials necessary for nurses to perform their work indicated absence of control and direction); cf. Tianti v. William Raveis Real Estate, Inc., supra, 231 Conn. 698 (furnishing equipment or materials to perform work indicated control and direction); Latimer v. Administrator, Unemployment Compensation Act, supra, 216 Conn. 250 (same). Although the installers/technicians were required to provide their services personally and were not permitted to subcontract or hire casual, pickup or day laborers, they could hire assistants to help them perform their work and could supervise the assistants as they saw fit. See Daw‘s Critical Care Registry, Inc. v. Dept. of Labor, supra, 42 Conn. Supp. 394–95 (nurses’ practice of trading shifts following assignment to facility without being required to report trades to plaintiff indicated absence of control and direction). Complaints regarding installation or othеr technical services and problems that arose during the warranty period originated with the customers and were referred to the plaintiff, who served as a conduit in reporting them to the installers/technicians and arranged for repairs or for payments by the installers/technicians to cover the cost of repairs by others. Cf. Latimer v. Administrator, Unemployment Compensation Act, supra, 250–51 (direct monitoring by plaintiff‘s attorney of care given to plaintiff indicated control and direction).
On matters of training and attire, the plaintiff did not provide the installers/technicians with an employee handbook and did not pay for their training or require any specific training relating to its products. Installers were encouraged, but not required, to display the plaintiff‘s name on their clothing and utility vehicles. Security system installers were required to display photographic identification badges that described them as subcontractors, not as the plaintiff‘s employees. The plaintiff provided the installers/technicians with shirts and hats labeled “Standard Oil,” but only because wearing these items might alleviate customer concern or confusion when the installers/technicians appeared at a customer‘s residence. Wearing the clothing was not required. See Daw‘s Critical Care Registry, Inc. v. Dept. of Labor, supra, 42 Conn. Supp. 396–97 (failing to conduct orientation for nurses or to require name tags while nurses worked at facilities indicated absence of control and direction); cf. Tianti v. William Raveis Real Estate, Inc., supra, 231 Conn. 698 (requiring salespersons to attend training sessions and to use company letterhead and business cards indicated control and direction).
The installers/technicians received compensation on the basis of a set rate per piece of work, rather than an hourly rate, could realize a profit or loss from the services rendered, and paid for their own transportation without reimbursement by the plaintiff. Cf. Latimer v. Administrator, Unemployment Compensation Act, supra, 216 Conn. 250 (paying personal care assistants hourly rate and fact that they did not realize profit or suffer loss based on services indicated control and directiоn).
Although the installers/technicians remitted invoices to the plaintiff, we do not agree with the court in Daw‘s Critical Care Registry, Inc., that this is indicative of control and direction. It is independent contractors, rather than employees, who typically submit invoices for their work. Neither the legal nor the ordinary definition of the term suggests that an employee is paid on the basis of an invoice. See Black‘s Law Dictionary (10th Ed. 2014) p. 956 (defining “invoice” as “[a]n itemized list of goods or services furnished by a seller to a buyer, usu[ally] specifying the price and terms of sale; a bill of costs“); Webster‘s Third New International Dictionary (2002) p. 1190 (“an itemized statement furnished to a purchaser by a seller and usu[ally] specifying the price of goods or services and the terms of sale“). Moreover, references in Connecticut case law to the payment of invoices consistently appear in connection with payments made to contractors rather than to employees. See, e.g., Campisano v. Nardi, 212 Conn. 282, 286, 562 A.2d 1 (1989) (referring to money applied to payment of subcontractors based on invoices submitted and shown to plaintiffs); Ray Weiner, LLC v. Connery, 146 Conn. App. 1, 4, 75 A.3d 771 (2013) (referring to “invoices and moneys charged by subcontractors“); D‘Angelo Development & Construction Corp. v. Cordovano, 121 Conn. App. 165, 189, 995 A.2d 79 (2010) (referring to invoices substantiating amounts claimed to be owed to subcontractors), cert. denied, 297 Conn. 923, 998 A.2d 167 (2010). The submission of invoices in this case is therefore indicative of the absence of control and direction.
We acknowledge the board‘s finding that five installers/technicians indicated in a questionnaire that the plaintiff had the right to direct how they performed their work. Although the board did not credit subsequent testimony by two of the five installers/technicians that the plaintiff had no such right, the statements in the questionnaires do not outweigh the board‘s numerous other findings in support of the conclusion that the plaintiff did not exercise control and direction over the installers/technicians.
The defendant argues that the plaintiff made arrangements with its customers regarding all of the installations and services, scheduled instаllation and service appointments with its customers and, in the event the installers/technicians accepted assignments, required them to perform their work within a designated timeframe set by the plaintiff and its customers. This argument, however, ignores the board‘s finding that the installers/technicians could accept or reject assignments simply on the basis of convenience and, as a consequence, had full control over how much work they did and when they did it. See Daw‘s Critical Care Registry, Inc. v. Dept. of Labor, supra, 42 Conn. Supp. 394 (plaintiff had no control over nurse‘s assignment because plaintiff‘s function, “after satisfying itself that a nurse was ‘competent,’ was fairly limited
The defendant also refers to evidence that the installers/technicians were limited to providing the installation or service they were sent by the plaintiff to perform, were not allowed to perform additional services without permission or direction from the plaintiff, and were required to perform the services personally insofar as they were not permitted to subcontract or use casual, pickup or day laborers when working in customers’ homes. We disagree that these findings constitute evi-dence of control and direction. The fact that the installers/technicians were limited to performing only those services they were sent to perform and were not permitted to provide additional services without the plaintiff‘s permission has no bearing on whether the plaintiff exercised control and direction over the manner in which they performed the services they were contracted to perform. The contracts between the plaintiff and the installers/technicians defined their legal rеlationship, and it is the work that was required under the contractual relationship that must be examined to determine whether the installers/technicians were employees or independent contractors under the act. As for the plaintiff‘s restriction on the use of subcontractors or possibly unqualified workers to assist in performing the work, this restriction was more than overcome by the board‘s related finding that the installers/technicians were free to hire other presumably qualified workers to assist them in completing the project and could supervise these workers as they saw fit. Thus, given that the plaintiff never visited its customers’ homes, it very likely never knew when the installers/technicians hired assistants or what the assistants did.
The defendant finally contends that the plaintiff supplied the installers/technicians with the means to do their work because the plaintiff determined the equipment to be installed for each project, required the installer to use parts supplied by the plaintiff, replaced some of the parts provided by the installers/technicians or reimbursed them for the parts. These parts included nozzles and strainers provided to the installers/technicians who serviced customers lacking heat or who needed their furnaces cleaned, and wires and “everything down to the screws” provided to security system installers. We do not agree that these facts constitute evidence of control and direction. The defendant blurs the line between the product that requires installation and the tools and equipment necessary to perform the installation. The board specifically found that the installers used their own equipment and tools to complete each project and that the installer did not pay for the product to be installed, which was provided by the plaintiff. The same was true for the technicians. Thus, insofar as the plaintiff supplied specialized parts such as nozzles and strainers in the case of heаting equipment, or the special wires and screws required for the installation of security systems, those parts were more accurately understood as part of the product, especially in the case of security systems that required special wiring. The only exception appears to be the piping, tubing, fittings and cement necessary for boiler installation, which the board found were supplied by the boiler installers.
II
The plaintiff next claims that the trial court improperly interpreted the term “places of business” under part B of the ABC test. The plaintiff specifically contends that the trial court‘s interpretation of the phrase as including the sites of service, that is, the homes of its residential customers, was unreasonably broad, inconsistent with the purpose of the act, and would have the practical effect of preventing the plaintiff or any other Connecticut business from ever utilizing the services of an independent contractor. The defendant responds that the court properly agreed with the board that the plaintiff‘s place of business was not only the plaintiff‘s office,
The following additional facts are relevant to our resolution of this claim. In concluding that the services of the installers/technicians were not performed outside the plaintiff‘s places of business, the board explained: “The [plaintiff] contracts directly with its customers to provide installation of its heating and cooling equipment and security systems in the customers’ homes and to continue to service the equipment and monitor the security systеms. . . . [T]he [plaintiff‘s] customer‘s homes have, by contract, become places of business of the [plaintiff] for purposes of part B of the ABC test. . . . [T]he [installers/technicians] represent the [plaintiff‘s] interest[s] 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. . . . [T]he [plaintiff] does not merely broker contractor services but, rather, offers installation and servicing of heating and cooling equipment and security systems to the public. Moreover . . . the [plaintiff] contracts directly with the customers whose homes are the situs for the installers’ and technicians’ services.”
In responding to the plaintiff‘s claim that it would be impossible to utilize the services of an independent contractor under the board‘s interpretation of part B, the board further explained: “[T]he [plaintiff] advertises and sells installed heating and cooling equipment and security systems. It rarely sells equipment without also selling the installation of that equipment. Moreover, the [plaintiff] has long-term contracts with its customers to service its heating and cooling equipment and monitor its security systems. Therefore . . . the [plaintiff] . . . conducts an integral part of its business in [the] customers’ homes.”
Following a review of the board‘s decision, the trial court examined the case law of other jurisdictions and concluded that “the board properly determined that the customers’ locations were . . . place[s] of business of the plaintiff. The plaintiff engages the installers/[technicians] to perform certain tasks as part of a continuing provision of services at the customers’ locations. Some of these tasks overlap with those performed by employees. Others are performed predominantly, and possibly exclusively, by putative independent contractors, but, nonetheless, the tasks are part of ongoing activity at the [customers‘] location[s].” (Emphasis omitted.)
Whether the homes of the plaintiff‘s customers are “places of business” within the meaning of
“We recently have elaborated on the role of agency interpretations in cases involving questions of statutory construction. In such cases, the traditional deference accorded to an agency‘s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency‘s time-tested interpretation . . . . Conversely, an agency‘s interpretation of a statute is accorded deference when the agency‘s interpretation has been formally articulated and applied for an extended period of time, and that interpretation is reasonable. . . . Deference is warranted in such circumstances because a time-tested interpretation, like judicial review, provides an opportunity for aggrieved parties to contest that interpretation. Moreover, in certain circumstances, the legislature‘s failure to make changes to a long-standing agency interpretation implies its acquiescence to the agency‘s construction of the statute. . . . For these reasons, this court long has adhered to the principle that when a governmental agency‘s time-tested interpretation [of a statute] is reasonable it should be accorded great weight by the courts.” (Citations omitted; internal quotation marks omitted.) Tuxis Ohr‘s Fuel, Inc. v. Administrator, Unemployment Compensation Act, supra, 309 Conn. 421–23.
Part B of the ABC test provides that “[s]ervice performed by an individual shall be deemed to be employment subject to this chapter . . . unless and until it is shown to the satisfaction of the administrator that . . . such service . . . is performed outside of all the places of business of the enterprise for which the service is performed . . . .”
A related provision on the nonvоluntary liability of employers under the act, however, is contained in
The importance of this confluence of language pertaining to the places where independent contractors perform their work cannot be underestimated. In construing multiple statutes on the same subject, “we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law . . . . Legislation never is written on a clean slate, nor is it ever read in isolation or applied in a vacuum. Every new act takes its place as a component of an extensive and elaborate system of written laws. . . . Construing statutes by reference to others advances [the values of harmony and consistency within the law]. In fact, courts have been said to be under a duty to construe statutes harmoniously where that can reasonably be done. . . . Moreover, statutes must be construed, if possible, such thаt no clause, sentence or word shall be superfluous, void or insignificant . . . .” (Citations omitted; internal quotation marks omitted.) Nizzardo v. State Traffic Commission, 259 Conn. 131, 157–58, 788 A.2d 1158 (2002). Thus, the most harmonious reading of the two provisions would be to construe “places of business,” as used in
provided in
Nevertheless, because of the difference in language, we do not deem
There is likewise no long-standing agency interpretation of the phrase to assist in determining when services are performed outside the places of business of the enterprise. Rather, the board has reached different conclusions based on the facts and circumstances of individual cases. See, e.g., Benitz v. Administrator, Unemployment Compensation Act, Employment Security Appeals Division, Board of Review, Case No. 9004-BR-10 (October 7, 2010) (customers’ homes were not considered places of business for purposes of antenna dish installation because, even though enterprise controlled scheduling, performance and financial aspects of installers’ services, customers entered into contracts for installation with enterprise contractor rather than enterprise); Alward v. Administrator, Unemployment Compensation Act, Employment Security Appeals Division, Board of Review, Case No. 9008-BR-93 (June 20, 1995) (pаrty and entertainment sites were not considered places of business because enterprise planned and coordinated parties and events by telephone
We thus turn to two Superior Court cases that have interpreted “places of business” under part B of the ABC test.9 In JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, Superior Court, Docket No. CV-97-0575801, the court concluded that the services of product demonstrators, who entered into contracts with the plaintiff to work in supermarkets, were performed outside the plaintiff‘s place of business. The court stated that the supermarkets were entirely separate enterprises from that of the plaintiff and that the plaintiff‘s business was “essentially to serve as a broker or intermediary between the supermarkets, the manufacturers, and the demonstrators. . . . As such, [the plaintiff‘s] place of business is not the supermarkets where the demonstrators work but, rather, where the plaintiff does its own work, that is, in its own office.” Id. Similarly, in Daw‘s Critical Care Registry, Inc., the court concluded that nurses who contracted with the plaintiff to provide nursing care on a temporary basis to various health-care facilities did not work at the plaintiff‘s place of business following assignment to the client‘s location because the plaintiff was not in the business of providing patient care but of brokering nursing personnel. Daw‘s Critical Care Registry, Inc. v. Dept. of Labor, supra, 42 Conn. Supp. 402. The court explained that nursing services were a function beyond what the plaintiff held itself out as performing, and, therefore, the client locations where services were performed were not within the plaintiff‘s business enterprise. Id., 403. These two decisions, however, like the agency‘s decisions, are highly fact specific and do not purport to define “places of business” in a manner that would be generally applicable in other contexts.
In the absence of a time-tested agency interpretation or any clear agreement on a defining principle in the Superior Court decisions, it has been our practice to examine the case law of other jurisdictions that have adopted the ABC test. See JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 421-22. A review of these cases, however, reveals a similar lack of consensus. Some courts have concluded that services performed at sites other than the office locations of the enterprise or its physical plant are not places of business because the business functions as a broker and the services performed at the sites are not an integral part of the enterprise or because treating them as places of business would have unacceptable economic consequences, such as higher business costs. See, e.g., Sinclair Builders, Inc. v. Unemployment Ins. Commission, 73 A.3d 1061, 1065, 1067, 1072-73 (Me. 2013) (job sites at which workers performed carpentry, plumbing, heating, electrical and other services for construction company were not places of business because, although employer‘s place of business may include location where employer has significant and business-related presence, extending places of business to construction job sites would preclude construction companies from sаtisfying part B of ABC test when hiring independent contractors and thus have negative economic effects on construction industry, which would be inconsistent with legislature‘s intent); Athol Daily News v. Board of Review, 439 Mass. 171, 179, 786 N.E.2d 365 (2003) (geographic areas covered by carriers for newspaper delivery enterprise were not places of business because, although carriers picked up newspapers at company‘s distribution center, delivery locations such as homes, stores, bundle drops and vending machines were “outside of premises owned by the [enterprise] or which could fairly be deemed its ‘places of business’ “); Commissioner of the Division of Unemployment Assistance v. Town Taxi of Cape Cod, Inc., 68 Mass. App. 426, 431, 862 N.E.2d 430 (2007) (geographic area covered by drivers for taxicab enterprise were not places of business because, even though taxicabs were stored and dispatch system was operated at business premises, drivers “did not transport customers on those premises . . . were not confined to a specific geographical location and were free to choose locations where they would look for passengers” [citation omitted]); Burns v. Labor & Industrial Relations Commission, Missouri Court of Appeals, Docket No. WD 44749 (Mo. App. March 31, 1992) (job sites at which roofers worked for roofing enterprise were not places of business because only place of business was home of business owner), aff‘d, 845 S.W.2d 553 (Mo. 1993); Metro Renovation, Inc. v. Dept. of Labor, 249 Neb. 337, 347, 543 N.W.2d 715 (1996) (rejecting rationale that job sites at which tradespeople performed construction work for remodeling and renovation enterprise were places of business because it would preclude any construction company from meeting requirements of law and render worksite “meaningless as a test to determine what constitutes an independent contractor in the construction industry“); Carpet Remnant Warehouse, Inc. v. Dept. of Labor, 125 N.J. 567, 592, 593 A.2d 1177 (1991) (homes where installers performed services for carpet company were not places of business because phrase “refers only to those locаtions where the enterprise has a physical plant or conducts an integral part of its business“); Barney v. Dept. of Employment Security, 681 P.2d 1273, 1275 (Utah 1984) (construction sites at which nailers and finishers performed services for drywall contracting enterprise were not places of business because owner had home office, nailers and finishers could work at other locations during day, including private residential sites, and, “[i]f the job-site definition of ‘places of business’ were to be utilized for construction workers, any unemployment question involving a subcontractor on a construction site would result in coverage under the [Utah
In contrast, other courts have extended the meaning of “places of business” beyond headquarters, office premises or physical plants to locations such as homes, roadways, transportation routes, or logging and con-struction sites because they have concluded that representation of the interest of the enterprise by workers at these locations renders them places of business. Under this broad interpretation, places of business may include the entire area in which the enterprise‘s business is conducted. See, e.g., Clayton v. State, 598 P.2d 84, 86 (Alaska 1979) (state owned parcel where workers harvested timber for enterprise involved in processing lumber was place of business because enterprise had contract to harvest timber on logging site); Mamo Transportation, Inc. v. Williams, 375 Ark. 97, 101, 103, 289 S.W.3d 79 (2008) (roadways on which workers drove vehicles were places of business for enterprise that provided ” ‘drive-away’ service” by transporting customers’ vehicles from origin to destination throughout United States and Canada because place of business is “the place where the enterprise is performed,” and enterprise for which service of transporting vehicles is performed takes place “in the vehicle itself between the point of origin and the point of destination“); TNT Cable Contractors, Inc. v. Director, Dept. of Wоrkforce Services, Arkansas Court of Appeals, Docket No. E-14-224 (Ark. App. February 11, 2015) (cable installation sites and connecting roadways were places of business for enterprise providing cable installation and other technical services because they were places where services were performed); Home Care Professionals of Arkansas, Inc. v. Williams, 95 Ark. App. 194, 199, 235 S.W.3d 536 (2006) (homes where workers took care of elderly clients for home care referral enterprise were places of business because “the representation of an entity‘s interest by an individual on a premises renders the premises a place of the employer‘s business,” and caregivers represented enterprise‘s stated interests of providing home care for elderly while in client‘s homes, which resulted in profits for enterprise); Carpetland U.S.A., Inc. v. Dept. of Employment Security, 201 Ill. 2d 351, 391, 776 N.E.2d 166 (2002) (customers’ homes where workers took measurements for floor covering enterprise were places of business because “place of business extends to any location where workers regularly represent its interest,” and, thus, when measurers visit customers’ premises to take measurements necessary for quoting prices and closing sales, they represent enterprise‘s interests); L.A. McMahon Building Maintenance, Inc. v. Dept. of Employment Security, 32 N.E.3d 131, 142 (Ill. App. 2015) (customers’ homes where workers washed windows for enterprise providing window washing services were places of business because “[a]n employing unit‘s place of business extends to any location where workers regularly represent its interests,” and window washers represented enterprise interests when they worked at customers’ homes); Chicago Messenger Service v. Jordan, 356 Ill. App. 3d 101, 115-16, 825 N.E.2d 315 (Ill. App. 3d 101, 115-16, 825 N.E.2d 315 (2005), appeal denied, 215 Ill. 2d 594, 833 N.E.2d 1 (2005); McPherson Timberlands, Inc. v. Unemployment Ins. Commission, 714 A.2d 818, 823 (Me. 1998) (logging sites at which worker harvested timber for timber management and marketing enterprise were places of business because enterprise had “significant and business-related presence
Even if we limit our review to cases in which services were performed at customers’ homes, courts have reached different conclusions, with one jurisdiction concluding that homes were not places of business for the purpose of carpet installation; Carpet Remnant Warehouse, Inc. v. Dept. of Labor, supra, 125 N.J. 592; and two other jurisdictions concluding that homes were places of business for the purpose of providing home care to elderly clients; Home Care Professionals of Arkansas, Inc. v. Williams, supra, 95 Ark. App. 199; measuring the premises for floor covering; Carpetland U.S.A., Inc. v. Dept. of Employment Security, supra, 201 Ill. 2d 391; and window washing. L.A. McMahon Building Maintenance, Inc. v. Dept. of Employment Security, supra, 32 N.E.3d 142.
We conclude, on the basis of our review of the case law and our examination of the broader statutory scheme, that two principles should govern our construction of part B of the ABC test. The first principle relates to the harmonious construction of related statutes. As previously discussed, the statutory scheme has provided for nearly eighty years, well before the legislature adopted the ABC test in 1971, that an independent contractor may be considered an employee under the act if the contractor worked “on or about the premises under such employer‘s control . . . .”
We therefore conclude that the meaning of “places of business” in the present context should not be extended to the homes in which the installers/technicians worked, unaccompanied by the plaintiff‘s employees and without the plaintiff‘s supervision. The homes of the plaintiff‘s customers, unlike the plaintiff‘s business offices, warehouses and other facilities, were under the homeowners’ control. Regardless of whether the plaintiff “conduct[ed] an integral part of its business in customers’ homes,” as noted by the board, it was not the plaintiff but the homeowners who (1) determined when access to their homes
This interpretation not only comports with our well established case law on the distinction between an employee and an independent contractor, and with the related statutory provision in
We also avoid a broad interpretation of “places of business” in the present context because of certain undesirable, practical consequences that might follow, including the taxing of two different business entities for the same worker and the receipt of benefits by the unemployed worker from both entities, as when an enterprise hires an independent contractor who operates a sole proprietorship, partnership, limited liability company or corporation that also pays unemployment contribution taxes for workers it sends to perform services for another enterprise. Furthermore, it makes no sense for an individual‘s home to be considered a place of business when the enterprise has no office in the home and the sanctity of the home and the privacy interests of its residents have long been recognized in our jurisprudence. See, e.g., Simms v. Chaisson, 277 Conn. 319, 334-35, 890 A.2d 548 (2006). Finally, as the Connecticut Business and Industry Association, Inc., argues in its amicus brief, a broad interpretation in this context could turn every Connecticut household into a place of business for any company that performs services at a customer‘s home, thus profoundly limiting an employer‘s аbility to subcontract work.
The dissent‘s heavy reliance on the fact that we have declared the statute remedial in prior cases is insufficient reason to conclude that the homes of the plaintiff‘s customers are places of business under
Having determined that the plaintiff‘s places of business did not extend to the homes of its residential customers, we conclude that the trial court improperly upheld the board‘s determination that the plaintiff failed to satisfy part B of the ABC test.11
In this opinion EVELEIGH, ESPINOSA and ROBINSON, Js., concurred.
Finally, to the extent the dissent concludes that, even if it accepted our interpretation of “places of business” as meaning ” ‘premises under [an] employer‘s control,’ ” the plaintiff in the present case still does not satisfy part B of the ABC test, we disagree. The dissent reasons that, because the plaintiff‘s customers have authorized the plaintiff to enter their homes to provide various services, including installation services, the plaintiff exerts dominion and control over the premises to the extent necessary to provide those services. This conclusion is incorrect. The plaintiff hаs no dominion, control, leasehold interest or any right other than a license to enter the premises for the purpose of performing the services. Customers thus may direct the plaintiff‘s employees or contractors to leave the premises at any time. See State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990) (“Alicense in real property is defined as a personal, revocable, and unassignable privilege, conferred either by writing or parol, to do one or more acts on land without possessing any interest therein. . . . Generally, a license to enter premises is revocable at any time by the licensor.” [Citation omitted; emphasis omitted; internal quotation marks omitted.]). Consequently, the plaintiff cannot be said to have dominion and control over the premises when its independent contractors perform services at the homes of the plaintiff‘s customers.
Notes
“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 installation, maintenance, and monitoring of such systems. [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.
“2. Approximately 90 [percent] of [the plaintiff‘s] business is generated from its home heating oil delivery service. The remaining [10 percent] 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 [out] to individuals who routinely perform such work either for their own business or self employment. 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.
“4. Heating and cooling installation, home alarm installation, and tank removal are performed by a variety of individuals who either own their own business and/or are self-employed (installers). Service and maintenance work on the heating and cooling systems are performed by a variety of individuals who either own their own business and/or are self-employed (service technicians). The installers and technicians are licensed or certified to pеrform their services in accordance with state law.
“5. Installers are neither supervised by [the plaintiff] nor does [the plaintiff] inspect their work. There is no representative of [the plaintiff] on the premises at any time during the installation project while it is in progress [or] upon its completion. The same is applicable to the technicians.
“6. [The plaintiff] determines the equipment to be installed for each projectand requires the installer to use the parts supplied by [the plaintiff]. On occasion, the installer may supplement with its own/other parts as deemed necessary to be reimbursed or replaced by [the plaintiff]. Installers use their own equipment and tools to complete each project. The installer does not pay for the equipment installed on the project, which is provided by [the plaintiff]. The same is applicable to the technicians. The installers and technicians also provide and pay for their own transportation without reimbursement by [the plaintiff]. The boiler installers [supply] piping, tubing, fittings and cement as necessary for boiler installations, in addition to the parts that [the plaintiff] supplies and requires the installers to use. [The plaintiff] provided nozzles and strainers to individuals who serviced customers who had no heat or needed their furnaces cleaned. The security system installers receive from [the plaintiff] wires and ‘everything down to the screws,’ and they supply no parts at all.
“7. The installers and technicians are free to accept or reject any assignment which is offered to them, and can determine [on what] days they will perform services for [the plaintiff].
“8. [The plaintiff] bills each customer and accepts payment to [the plaintiff] for installation and service work. Neither the installers nor the technicians bill or accept payment from the customer.
“9. Installers and technicians are encouraged to display [the plaintiff‘s] name on their clothing (shirts, hats), and thе utility vehicles they use to perform their work. [The plaintiff] requires the security system installers to display photo badges which identify them as subcontractors of [the plaintiff]. The installers and technicians are not required to display the [plaintiff‘s] name on their apparel or vehicles, and security system installers are required to display photographic identification badges identifying themselves as subcontractors for [the plaintiff]. [The plaintiff] provides the installers and technicians with shirts and hats labeled ‘Standard Oil’ with the understanding that wearing these items could alleviate any customer concern or confusion when they appear at a customer‘s residence.
“10. Installers and technicians are limited to provide the installation/service, which [the plaintiff] has sent them to perform. If a customer requests additional work/services, the installer/technician must direct the customer to contact [the plaintiff] directly. Installers/technicians are not allowed to perform additional work/services for said customers without permission and/or direction from [the plaintiff].
“11. The installers and technicians are required to provide the services personally. They are not permitted to subcontract, although they may hire assistants to help them perform the work and may supervise their employees as they see fit. The installers and technicians are not allowed to use casual, pickup or day laborers when providing services in customers’ homes.
“12. Each of the installers and technicians has an independent business which provides the same types of services that [the installers and technicians] perform on behalf of [the plaintiff]. Many of the installers and technicians have business cards and advertise their businesses. The heating and cooling equipment installers are required to have box trucks, which are capable of transporting large equipment, such as boilers and oil burners. In addition, many of the installers and technicians earned at least some of their income from sources other than [the plaintiff] during the years in question.
“13. [The plaintiff] makes arrangements directly with the customer regarding all installation and service. It schedules installation and service appointments with all the customers, and then finds an installer or technician who can take the assignment. If they accept an assignment from [the plaintiff], the installers and technicians must perform their work within a designated timeframe which was set by [the plaintiff] and the customer.
“14. Installers and technicians are required to sign . . . contract agreements which [have] been drafted by [the plaintiff]. The agreement requires installers and technicians to maintain a current license and specific insurance coverage(s). The agreements state that the installers/technicians shall at all times exercise independent judgment and control in the execution of any work, job or project they accept.
“15. The installers and technicians are paid a set rate per piece of work. They cannot negotiate the pay rate, which is established by [the plaintiff]. [The plaintiff] requires the installers and technicians to submit their invoices for payment no later than Friday of the week in which they satisfactorily complete their assignments.
“16. Installers and technicians generate a percentage of [the plaintiff‘s] revenues. This portion of [the plaintiff‘s] business and profitability is dependent 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] maintains a staff of employees to perform such services, it ‘contracts’ with the technicians to perform the same/similar services to its customers. These technicians are subject to the same terms and conditions as the installers in regard to appointments, billing, clothing, work perfоrmed and licensing and insurance requirement[s].
“18. The [defendant] previously identified Walter Camp as an employee in a prior audit. [The plaintiff] [reported Camp] as an employee at the time of the [appeals] referee‘s hearing(s).
“19. The parties stipulated that [§] A-19 in the contract, Right to Fire, would not be a factor in the adjudication of this case.
“20. The contracts contain a restrictive covenant which prohibits the installers from soliciting work from or doing business with any of [the plaintiff‘s] customers for whom they have performed services.
“21. Five of the installers/technicians, Brian Borchert, Walter Camp, Edward Chickos, Jr., William Parks and Gary Vannart, responded ‘yes’ to a question on the [defendant‘s] questionnaire asking if [the plaintiff] has the right to direct how they perform their work. None of the installers or technicians responded ‘no’ to that question.
“22. [The plaintiff] has instructed the security installers to run an extra wire through its keypads and to use a certain type of conductor. Moreover, the installers can only install the equipment which has been provided by [the plaintiff]. [The plaintiff] provides the technicians with nozzles, strainers, and filters for cleaning oil burners.
“23. Any problems arising between a customer and the installer/technician must be referred to [the plaintiff]. If a customer complains about an installation or service during the warranty period set forth in [the plaintiff‘s] contract with the installer/technician, [the plaintiff] has the right to send the installer/technician back to the customer site to fix the problem or require the installer/technician to pay for the repair.
“24. [The plaintiff] does not provide the installers and technicians with an employee handbook, and it does not pay for their training or require any specific type of training [with respect to] its products.
“25. The installers and technicians can realize a profit or a loss from their provision of services to [the plaintiff].
“26. While [the plaintiff] has no installers on payroll, it has on occasion used a company employee to install equipment when no installers were available. [The plaintiff] has employees who clean and service its heating and cooling equipment, in addition to the technicians who are at issue in this case.
“27. In his payroll audit report dated July 23, 2009, the [defendant] agreed with [the plaintiff‘s] classification of certain individuals as independent contractors.
“28. The technicians and installers performed all work outside of the offices of [the plaintiff].
“29. The installers and technicians are free to accept or reject assignments offered to them without adverse consequences.
“30. The installers and technicians were required to return to correct problems found with their work. [The plaintiff] warrants the installed equipment, including parts and labor.” (Emphasis omitted.)