In re:  Debra M. Anderson, petitioner, Respondent, vs. Leo J. Utecht, Appellant.

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This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-99-197

Jenna M. Olsen,

Respondent,

vs.

Loving Care Senior Services, Inc.,

Relator,

Commissioner of Economic Security,

Respondent.

Filed August 17, 1999

Affirmed

Shumaker, Judge

Department of Economic Security

File No. 110 T 98

Renae Lillegard Fry, 2345 Rice Street, Suite 145, Roseville, MN 55113 (for respondent Olsen)

Thomas D. Harmon, Wagner, Falconer & Judd, Ltd., 3500 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2113 (for relator)

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

Considered and decided by Shumaker, Presiding Judge, Short, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

SHUMAKER, Judge

Relator Loving Care Senior Services, Inc., challenges the Commissioner of
Economic Security's award of benefits based on its determination that an employer/employee relationship existed between relator and respondent, Jenna M. Olson. We affirm.

FACTS

In January 1997, Erwin Kelen hired Hannah Smith to provide in-home daily living assistance to his mother, Margaret Kelen. Toward the end of that month, Smith incorporated a home health care business under the name Loving Care Senior Services, Inc. Smith was the president and sole owner of the corporation.

In May 1997, Smith told her friend Jenna Olsen that she could work as a home health aide for Margaret Kelen. Olsen took the position. On June 6, 1997, Smith hired Olsen to serve as Loving Care's operations manager and as a health care aide for some of Loving Care's clients. Olsen performed her operations managerial duties in Smith's home using Smith's computer.

Smith hired various home health aides to work for Loving Care. Some of these aides performed services for Margaret Kelen inside and outside her home. The Kelen aides received an hourly wage and were paid from a special checking account in Margaret Kelen's name. Smith had authority to draw on this account, and she signed most of the paychecks after the aides submitted their time records to her. She did not withhold taxes or social security contributions from the aides' pay.

Smith and Erwin selected the people who would work as Margaret's aides, and Smith provided training and ongoing instruction when necessary. Any issue as to the quality of care was referred to Smith. Smith had authority to terminate an aide for the Kelen position.

Smith coordinated the work schedules for the Kelen services. She prepared and posted written calendars. She allowed aides to trade shifts but only with her approval. She posted on the refrigerator in Margaret's home a document labeled "Loving Care Senior Services." It contained the names and telephone numbers of aides available for work at the Kelen home. Smith determined what services were to be provided on a given shift.

In January 1998, Smith terminated Olsen from her position with Margaret Kelen. Olsen applied for reemployment benefits. The issue in dispute was whether Olsen worked for Margaret Kelen as an independent contractor or as an employee of Loving Care. Smith contended that she, Olsen, and all the other Kelen aides served Margaret Kelen only as independent contractors and that Margaret Kelen never became a client of the corporation.

The department of economic security determined that Olsen was an employee of Loving Care. A reemployment insurance judge ruled that, because Margaret Kelen directly paid the aides, Olsen and the others were employees of Margaret Kelen. Erwin Kelen appealed that ruling, arguing that Olsen and the others were independent contractors. The commissioner's representative reversed the reemployment insurance judge and held that Olsen and the other aides were employees of Loving Care when they provided services to Margaret Kelen. Loving Care appealed to this court.

D E C I S I O N

This court may reverse or modify the decision of the commissioner's representative if the findings, inferences, conclusions, or rulings are unsupported by substantial evidence in view of the entire record, or are arbitrary and capricious. Minn. Stat. § 14.69 (1998). Substantial evidence is "relevant evidence as a reasonable mind might accept as adequate to support a conclusion, or more than a scintilla of evidence." M.T. Properties, Inc. v. Alexander, 433 N.W.2d 886, 893 (Minn. App. 1988), review denied (Minn. Feb. 22, 1989).

The determination of an employment relationship is a mixed question of fact and law. Lakeland Tool & Eng'g, Inc. v. Engle, 450 N.W.2d 349, 352 (Minn. App. 1990). "Cases distinguishing between employees and independent contractors are often factually close." North Face Exteriors v. Commissioner of Jobs & Training, 457 N.W.2d 778, 780 (Minn. App. 1990); see also Lakeland Tool, 450 N.W.2d at 353.

We must defer to the commissioner's representative's findings of fact if they are supported by the record, but we may exercise independent judgment in determining the legal question of whether an individual is an employee or an independent contractor. Neve v. Austin Daily Herald, 552 N.W.2d 45, 47-48 (Minn. App. 1996). We answer the question by applying the law of master and servant. See Minn. Stat. § 268.04, subd. 12(1)(d) (Supp. 1997) (employment is a service by any individual who is a servant under the master and servant laws and who is not an independent contractor).[1]

The traditional factors used in determining whether an individual is an employee or an independent contractor are:

(1) The right to control the means and manner of performance; (2) the mode of payment; (3) the furnishing of material or tools; (4) the control of the premises where the work is done; and (5) the right of the employer to discharge.

Guhlke v. Roberts Truck Lines, 268 Minn. 141, 143, 128 N.W.2d 324, 326 (1964). These factors have since been codified in Minn. R. 3315.0555 (1995). The right to control the means and manner of performance generally carries the greatest weight in a determination of the worker's status. E.g., Wangen v. City of Fountain, 255 N.W.2d 813, 815 (Minn. 1977).

The commissioner's representative concluded that the degree of control Smith exercised over the aides' work for Margaret Kelen attested to the employment relationship between Loving Care and the aides.

Smith had joint authority with Ervin to hire and fire Margaret Kelen's aides. She approved their wages, set their schedules, determined what services they would perform, provided training, and coordinated and supervised the home health care services Margaret Kelen received. Substantial evidence supports the conclusion that Smith exercised the type and amount of control indicative of an employer-employee relationship.

The issue that the representative does not directly resolve is whether Smith was acting on behalf of Loving Care when she exercised control over the aides. Smith argues that at all times she treated the services performed for Margaret Kelen as independent contracts. She notes that the corporation never became involved in any way in the Kelen account. However, the evidence reasonably supports the inference that Loving Care was the employer. Perhaps most telling is the list of aides Smith attached to the Kelen refrigerator. These were Loving Care employees available for work in the Kelen home. The list is entitled "Loving Care Senior Services." Thus, Smith identified the corporation and several of its regular employees with the Kelen services and it was from the list of corporate employees that the Kelen aides were selected.

The unemployment compensation statute is remedial in nature and should be liberally construed to achieve those ends. Rochester Dairy Co. v. Christgau, 217 Minn. 460, 465, 14 N.W.2d 780, 783 (1944) (quoting Moore v. Kileen & Gillis, 171 Minn. 15, 19, 213 N.W. 49, 50 (1927)). Given that remedial purpose, broad interpretations of the employment relationship are preferred. Rochester Dairy Co., 217 Minn. at 465, 14 N.W.2d at 783.

Affirmed.

[1] This statute was repealed in 1998. 1998 Minn. Laws ch. 265, § 46.