2011-498, Appeal of Aspen Contracting NE, LLC

The petitioner, Aspen Contracting NE, LLC (Aspen), appeals

Security.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

general, on the brief), for the New Hampshire Department of Employment Michael A. Delaney, assistant attorney

to press. Errors may be reported by E-mail at the following address: Stevens and Neil B. Nicholson on the brief), for the petitioner.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as sustained it, we confine our review to the findings and rulings of the”

p. 2 Committee’s or the Appeal Tribunal’s record or determination, “but simply

Because the Appellate Board in this case “neither clarified nor limited” the [T]ribunal as reversed, modified, or affirmed by the [A]ppellate [B]oard.” which specifies the procedure for appealing “a final decision of the [A]ppeal Judicial review of DES decisions is controlled by RSA 282-A:67, II (2010),

Appeal Tribunal. This appeal followed. findings, inferences, conclusions or the decisions of the Committee or the

Appeal Tribunal. It found that Aspen’s rights had not been prejudiced by the The Appellate Board sustained the decisions of the Committee and the

point the cases were consolidated.

reopening were denied, Aspen appealed to the DES Appellate Board, at which

claimants were entitled to unemployment compensation. After requests for

each case, the Committee and the Appeal Tribunal also found that the appealed DES’s determinations to the Committee and the Appeal Tribunal. In whether a worker is exempt from the definition of employment. Aspen

in RSA 282-A:9, III (2010), which provides a tripartite test for determining

claimants’ services did not meet the requirements for the exemption provided entitlement to unemployment compensation. It further found that the employment from Aspen that constituted annual earnings for purposes of In early 2010, DES found that each of the claimants had earned wages in

benefits. return thereafter to deliver for Aspen. Each claimant filed for unemployment

suspended his contract on October 23, 2009, prior to surgery, and did not

2009, after he declined to complete his route due to a snowstorm. Eastman

cover his delivery route. Trumble’s contract was terminated on December 6, he failed to obtain Aspen’s permission to have another Aspen-approved driver On October 7, 2009, Aspen terminated Bishop-Chapman’s contract after

October 12, 2009, respectively. contractual relationship with Aspen on October 1, 2008, June 10, 2009, and Chapman, Steven Eastman, and Mark Trumble, each entered into a

check before delivering PharMerica’s products. The claimants, Michael Bishop-

and must first pass a background check, drug test, and motor vehicle records enters into what is entitled an “independent contractor agreement” with Aspen, Vermont. Aspen retains drivers to deliver PharMerica’s products. Each driver

and long-term care facilities located in New Hampshire, Massachusetts, and

place of business in Concord, to deliver its products to jails, nursing homes Aspen contracted with PharMerica, a pharmaceutical company with a

Aspen does not have an office in New Hampshire. services to clients for the distribution and delivery of Aspen’s clients’ products. chapter 282-A.” Appeal of John Hancock Distributors

p. 3 to establish any of them is conclusive proof of employment for purposes of RSA

establish that all three requirements for exclusion have been satisfied; failure “The burden is on the party challenging an ‘employment’ determination to

business.

independently established trade, occupation, profession, or (c) Such individual is customarily engaged in an

for which such service is performed; and

is performed outside of all the places of business of the enterprise business for which such service is performed or that such service (b) Such service is either outside the usual course of the

both under his contract of service and in fact; and

from control or direction over the performance of such services, Tax Act.” RSA 282-A:9, I; see (a) Such individual has been and will continue to be free

department of employment security that:

constitutes ‘employment’ under the provisions of the Federal Unemployment expressed or implied, together with service performed within the state which commerce, performed for wages or under any contract of hire, written or oral, it is shown to the satisfaction of the commissioner of the deemed to be employment subject to this chapter unless and until own.” Appeal of Boudreault Services performed by an individual for wages shall be those workers who are involuntarily unemployed through no fault of their 282-A, is to prevent the spread of unemployment and to lighten the burden on exemption provided in RSA 282-A:9, III. Under RSA 282-A:9, III: “The purpose of our unemployment compensation statute, RSA ch[apter] Aspen argues that the claimants are not employees based upon the

124, 126 (2001). error of law, or clearly erroneous in view of all the evidence presented.” Appeal Appeal of John Hancock Distributors, 146 N.H.

of the evidence on questions of fact. See our judgment for that of the Appeal Tribunal or the Committee as to the weight broadly defines “employment” to mean “service, including service in interstate

of First Student, 153 N.H. at 684-85 (quotation omitted); see RSA 282-A:67, V.

decision unless its findings or conclusions were unauthorized, affected by an First Student, 153 N.H. at 684. “Furthermore, we will uphold the department’s

684 (2006). In reviewing decisions under RSA 282-A:67, we will not substitute Committee and the Appeal Tribunal. Appeal of First Student, 153 N.H. 682, under the supervision of another person hired by Aspen, whom they contacted

p. 4 work. One of the claimants was paid while being trained. They were also

significant restrictions on their ability to contemporaneously perform such Chapman did on days he was not working for Aspen, but Aspen placed could work independently as delivery drivers for other companies, as Bishop-

claimants to update their vehicles in order to keep their routes. The claimants

Logistics, Independent Contractor.” Aspen also had the right to require the photo identification badge and tee shirt identifying himself as a “Noble subcontracting his route. With the exception of Trumble, each claimant wore a

Aspen to do so. Indeed, Bishop-Chapman was terminated for improperly

approved Aspen drivers, and the claimants had to obtain prior permission from could utilize other drivers to cover their routes, the other drivers had to be pretheir deliveries, due to the nature of the deliveries. Although the claimants

credible. See

Aspen occasionally directed the drivers as to the sequence in which to complete

Aspen’s representative’s testimony on this matter to be self-serving and not

the claimants their routes and schedules, and reviewed their work. Moreover,

fees were negotiable, following Eastman’s hearing the Appeal Tribunal found delivery. While there was conflicting testimony as to whether or not the flat direction in the performance of their services. Aspen paid drivers a flat fee for In contrast, here, the claimants were not free from Aspen’s control or upon Appeal of Lakes Region

provision of services or instruct providers what to do.” Id Tribunal as to the weight of the evidence on questions of fact). Aspen assigned does not have the authority to substitute its judgment for that of the Appeal

Appeal of Eno, 126 N.H. 650, 653 (1985) (stating that this court

respite from responsibility. Appeal of Lakes Region Community Services

direction in the performance of services under RSA 282-A:9, III(a). Its reliance their services. Id. free from the direction or control of the employing entity in the performance of

recipients’ homes, the employing entity did “not attempt to monitor the Services. Id. While the care providers had to keep a log of time spent at the Committee and the Appeal Tribunal. See primarily paid by the New Hampshire Department of Health and Human subparagraph (a) were not met, we need not address the remaining findings of Council, 127 N.H. 386, 387 (1985). The temporary care providers were requirements of RSA 282-A:9, III. Because we agree that the requirements of care for disabled persons in order to give their normal custodians a short employing entity drew from a list of individuals who could provide temporary

N.H. 386 (1985), Aspen argues that the claimants were free from its control or Relying upon Appeal of Lakes Region Community Services Council, 127

Distributors, 146 N.H. at 128.

the Appeal Tribunal both found that Aspen failed to satisfy each of the three of Work-a-Day of Nashua, 132 N.H. 289, 291 (1989). Here, the Committee and of uniform. The claimants were also under the supervision and direction of

p. 5 “independent contractor” designation, the badge and tee shirt constitute a type

Express Bus.” Id 5

the logo of “Noble Logistics, Independent Contractor.” Despite the Aspen required drivers to wear tee shirts and photo identification badges with drivers, occasionally including the required sequence of deliveries. Further, independent contractor for Express Bus. Express Bus, Inc. In contrast, in this case, Aspen left special delivery instructions for the Board’s determination that the claimant was an employee and not an

route to be taken,” and could freely “work for other companies in addition to

[over the driver] was minimal

reversing the Oklahoma Employment Security Commission Assessment contract for any reason and at any time.” Id.

. at 1183. Furthermore, either party could “terminate the

(quotation omitted). The claimant “made all driving decisions, including the was an employee because the claimant “had no job duties except for replacements to cover their routes. Id driving.” Id. The district court reversed the Assessment Board’s finding that the claimant

1182. The Assessment Board had “specifically found that Express Bus’ control performing the services for which they were engaged.” Id In doing so, the court applied a statute similar to RSA 282-A:9, III(a). Id. at

Oklahoma Court of Appeals affirmed the decision of the District Court The facts of Express Bus are also distinguishable. In Express Bus, the

have to wear any type of uniform, and did not need to receive prior permission never directed as to the sequence in which to deliver the newspapers, did not employees under its direction or control. In Athol Daily News carriers in Athol Daily News, unlike the claimants in the present case, were

carriers were “entirely free from [the Athol Daily News’s] supervision in and before a certain time each day.” Id Aspen points to Athol Daily News v. Board of Review of the Division of. at 371. Beyond this requirement, the newspaper “require[d] only that the newspapers be delivered in good condition direction over the performance of their services. See present case. In that case, the agreement between the carriers and the each day for this work. Thus, the drivers were not free from Aspen’s control or However, the facts of Athol Daily News are distinguishable from those in the News are independent contractors. Athol Daily News, 786 N.E.2d at 367. RSA 282-A:9, III, adult carriers who deliver newspapers for the Athol Daily Massachusetts Supreme Judicial Court held that, under a statute similar to

App. 2007), to further support its argument that the claimants were not Inc. v. Oklahoma Employment Security Commission, 157 P.3d 1180 (Okla. Ct. Employment and Training, 786 N.E.2d 365 (Mass. 2003), and Express Bus,

the drivers and PharMerica. That person was paid an additional fee by Aspen when they had difficulties with deliveries and who acted as a liaison between p. 6 6

error of law, or clearly erroneous in view of the record. See of the Committee or the Appeal Tribunal were unauthorized, affected by any the claimants were not employees under RSA 282-A:9, III, or that the findings Accordingly, Aspen has failed to meet its burden of demonstrating that

record to support these findings. DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred. routes and schedules, and we conclude that there is sufficient evidence in the

293. Hancock Distributors, 14 p. 6 6 N.H. at 129; Appeal of Work-a-Day, 132 N.H. at

and the Appeal Tribunal each found that Aspen controlled the claimants’ another person, who served as their main contact with Aspen. The Committee