Mamo Transportation, Inc. v. Director, Department of Workforce Services
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DIVISIONS II & III
E06331
December 19, 2007
MAMO TRANSPORTATION, INC.
APPELLANT
V.
APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
[2004BR2 EC]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES
APPELLEE
AFFIRMED
Appellant, Mamo Transportation, Inc., appeals the Board of Review’s decision that
it is required to pay unemployment taxes on the drivers it engages because it failed to
meet the threeprong test set forth in Arkansas Code Annotated section 1110210(e) to
determine if its drivers are independent contractors. The Board of Review found that
Mamo met the first prong but did not meet the second prong, and because of that it was
unnecessary to address the third prong. On appeal, Mamo argues that it met the criteria of
the second prong. We affirm the Board of Review’s determination that Mamo did not
meet the second prong and is therefore liable for payment of unemployment taxes.
Arkansas Code Annotated section 1110210(e) (Supp. 2005) provides:
(e) Service performed by an individual for wages shall be deemed to be
employment subject to this chapter irrespective of whether the common law
relationship of master and servant exists, unless and until it is shown to the
satisfaction of the director that:
(1) Such individual has been and will continue to be free from control and
direction in connection with the performance of the service, both under his
or her contract for the performance of service and in fact; and
(2) The service is performed either outside the usual course of the business
for which the service is performed or is performed outside of all the places
of business of the enterprise for which the service is performed; and
(3) The individual is customarily engaged in an independently established
trade, occupation, profession, or business of the same nature as that
involved in the service performed.
Overview
Mamo provides “driveaway” services for its customers throughout all fortyeight
contiguous states and into Canada. Mamo contracts with drivers to deliver large vehicles
to its customers, i.e., tractortrailers, buses, and motor homes, where conventional hauling
is not financially efficient. Mamo, which is headquartered in Indiana and has dispatch
offices in Indiana, Pennsylvania, North Carolina, and Arkansas, has a list of approved
drivers. An approved driver calls one of the dispatch offices when he wants to work to
determine if there is a trip he wants to take. Mamo gives the driver the amount it is
willing to pay per mile for the trip, and the driver is free to attempt to negotiate a better
deal. If the driver and Mamo are able to agree on a price, the driver makes the trip.
Mamo’s profits are derived from the difference between what the customer pays Mamo
and what Mamo pays the driver. Mamo does not have exclusive contracts with any
driver; testimony indicated that eightyeight percent of the drivers had at least two other
carrier contracts in addition to Mamo. There was testimony that Mamo does not train its
drivers; that the drivers are responsible for paying their own taxes; that the drivers pay
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their own expenses, including meals, lodging, fuel for the vehicle being delivered, and
transportation home after delivery; that drivers choose how much to work; and that
drivers are responsible for the first $1000 in damages if there is an accident, with Mamo’s
liability insurance paying the balance owed. Three Mamo drivers testified that they
considered themselves to be independent contractors.
Case History
This case arose when one of Mamo’s drivers, Sylvia JonesAllen, filed for
unemployment benefits after Mamo cancelled her contract on the basis that she was a
highrisk driver. JonesAllen was making her third trip for Mamo during her first ninety
days under contract when she caused over $9,000 in damages to a vehicle by driving it
under a bridge that was too low for the vehicle. When she applied for unemployment
benefits, JonesAllen identified herself as an independent contractor. Mamo agreed with
this designation. However, the Board of Review found that Mamo was not exempt from
paying Arkansas unemployment taxes because it did not meet all three prongs of
Arkansas Code Annotated section 1110210(e). Mamo now brings this appeal.
Discussion
In American Transportation Corporation v. Director, 39 Ark. App. 104, 106, 840
S.W.2d 198, 199 (1992) (citations omitted), our court held:
In order to obtain the exemption contained in the Act, it is necessary that
the employer show to the satisfaction of the Director that the requirements
of all three subsections have been met. Therefore, if there is sufficient
evidence to support a finding that any one of the three requirements were
not met, the case must be affirmed. In reviewing decisions of the Board of
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Review, this court views the evidence in the light most favorable to the
Board’s findings, giving them the benefit of every legitimate inference that
can be drawn from the testimony, and will affirm the determination of the
Board if its findings are supported by substantial evidence. The issue to
determine is not whether the evidence would support some different
finding, but whether it supports the finding actually reached by the Board.
In the present case, Mamo does not make the argument that its drivers are not paid
wages; therefore, the only issue on appeal is whether Mamo meets the second prong of
section 1110210(e), whether the service is performed either outside the usual course of
the business for which the service is performed or is performed outside of all the places of
business of the enterprise for which the service is performed. This second prong itself is
a twopart alternative test — the test is met if the service is performed either outside the
usual course of business or if the service is performed outside of all the places of business
of the enterprise for which the service is performed.
In Home Care Professionals of Arkansas, Inc. v. Williams, 95 Ark. App. 194, 235
S.W.3d 536 (2006), this court held that the appellant, HCP, was not exempt from paying
unemployment taxes because it had failed to satisfy subparagraph two of the statutory
exemption. HCP maintained a list of caregivers who provided homecare services for the
elderly; when it first began, HCP provided direct homecare services for the elderly, but it
had eventually evolved into a homecare referral service. Clients contacted HCP and
stated what homecare services were needed; HCP collected a fee for the service up front
and then found a caregiver willing to perform the necessary services. The client and
caregiver negotiated a schedule and the terms of employment; once the caregiver
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completed the services and turned in a time sheet, HCP distributed the funds collected
from the client less its forty percent referral fee. Caregivers on HCP’s referral list signed
independentcontractor agreements with HCP, and caregivers were responsible for their
own transportation and supplies. After a schedule was arranged between the client and
the caregiver, HCP administered the schedule, including scheduling replacements if the
caregiver was unable to work. HCP’s caregivers were not required to be exclusively
listed with HCP.
This court, in affirming the Board’s decision that HCP had failed to meet the
second prong of the independentcontractor test, quoted the Board’s analysis of the
second prong of that test:
In the instant case, caring for the elderly is necessary to [HCP’s] business, and thus
providing inhome services is within [HCP’s] usual course of business. Since the
evidence does not establish that [HCP] receives a monetary benefit when a simple
referral is made, but only when a service by a caregiver is performed for a client, a
finding that providing inhome services is within [HCP’s] usual course of business
is particularly appropriate.
In regard to the place of business aspect of the second part of the test, an
employer’s place of business has been found to include not only the location of a
business’s office, but also the entire area in which a business conducts business.
See Missouri Association of Realtors v. Division of Employment Security, 761
S.W.2d 660 (Mo. App. 1988); Employment Security Commission of Wyoming v.
Laramie Cabs, Inc., 700 P.2d 399 (Wyo. 1985); and Vermont Institute of
Community Involvement, Inc., v. Department of Employment Security, 436 A.2d
765 (Vt. 1981). More specifically, the representation of an entity’s interest by an
individual of a premises renders the premises a place of the employer’s business.
See Carpetland, [Carpetland U.S.A. v. Illinois Dep’t of Employment Security, 206
Ill. 351, 776 N.E.2d 166 (Ill. 2002)]. In the instant case, the caregivers represent
[HCP’s] interest on the client’s premises, not just in a tangential fashion, (e.g.,
satisfactory work by the caregiver may result in future referral), but in the most
direct sense, that of performing the very service by which [HCP] profits.
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95 Ark. App. at 19899, 235 S.W.3d at 54041. The Board determined that the
caregivers represented HCP’s interest on the clients’ premises, thereby making the
clients’ premises a place of business. This court adopted that determination.
Other jurisdictions have reached the same conclusion.
In O’HareMidway
Limousine Service, Inc. v. Baker, 596 N.E. 2d 795 (1992), the Appellate Court of Illinois
rejected O’HareMidway’s argument that the limousine drivers performed their work
outside its usual course of business. The appellate court held that while the driving did
not take place at the office, the usual course of a limousine dispatching service was not
limited to office space and because the drivers represented the interests of O’Hare
Midway whenever they picked up passengers, the usual course of business was on the
roadways traveled. (Emphasis added.) Likewise, in Employment Security Commission of
Wyoming v. Laramie Cabs, Inc., 700 P.2d 399 (1985), cited in Home Care Professionals,
supra, the Supreme Court of Wyoming held that the essence of the taxi cab business was
conducted in cabs between the customer’s origin and destination, not in the company
office, and the supreme court concluded that the vehicles that provided the service had to
be considered a place of business of the taxicab company. The Supreme Court of North
Dakota determined in Midwest Property Recovery, Inc. v. Job Service of North Dakota,
475 N.W.2d 918 (1991), that “the places of enterprise” of Midwest, who was in the
business of repossessing vehicles, necessarily extended to where the repossessions took
place.
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In the present case giving the statutory language its plain meaning and viewing the
evidence in the light most favorable to the Board's findings, we hold that the Board’s
decision is supported by substantial evidence. Mamo provides drivers to transport
vehicles for its customers. As in Home Care Professionals, supra, Mamo does not
receive a monetary benefit until the service, here, driving and delivering the vehicle, is
performed; therefore, such delivery is in the usual course of business. Regarding the
“place of business” aspect of the test, by comparison to O’HareMidway Limousine,
supra, and Laramie Cabs, supra, the roadways are where services are performed, and the
drivers represent Mamo’s interests on those roadways.
Affirmed.
PITTMAN, C. J., GRIFFEN, and MARSHALL, JJ., agree.
HART and MILLER, JJ., dissent.
HART, J., dissenting. I agree with Judge Miller that this case must be reversed.
However, I write separately to draw attention to an unsettling trend in this area of the law
that I believe will have farreaching consequences that apparently have not been
considered by the majority. I submit that ratifying the Board of Review’s construction of
the facts of this case has all but completely annulled the status of independent contractor
in this state.
At issue in this case is only the second prong of the threepart test set forth in
Arkansas Code Annotated section 1110210(e), whether the service performed is
“outside the usual course of business” or “outside of all the places of business of the
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enterprise for which the service is performed.” The Board of Review has erred in its
findings on both of these factors. First it errs when it finds that “the course of business
for both Mamo and the drivers is providing the delivery of vehicles.” This conclusion can
only rest on an absurdly broad view that completely misses essential distinctions. It is
rather like saying that the Earth is exactly the same as Saturn because they are both
planets. It is obvious to me that while both Mamo and the drivers have a role in moving
large vehicles, Mamo’s sole business is matching the owners of large vehicles that need
to be moved with drivers capable of moving them. There was not a shred of evidence that
Mamo actually moved the vehicles itself. Likewise, the drivers actually moved the
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vehicles, but, at least in the context of their relationship with Mamo, had no role in the
matching of their skills to the needs of the owners of the vehicles. These distinctions are
pivotal. To ignore them is tantamount to saying that a theatrical agent is in the business
of performing on stage, when his only role was to get his client the part.
The Board of Review also erred in finding that “Mamo’s places of business consist
not only of its office, but the roadways on which the drivers transport the vehicles.” This
finding is remarkable in that the testimony indicated that Mamo performed its role only in
its offices, which the drivers did not visit. This finding rests not upon inductive reasoning
based upon an examination of the business, but rather on the Board’s circular logic that
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There is, however, testimony that the drivers were free to make their own arrangements
with the owners of large vehicles for subsequent transports. Essentially, the drivers were free to cut
out the middleman for subsequent trips.
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necessarily originated from its flawed conclusion that the drivers were employees, i.e.,
that if the drivers were employees, then the place of business was everywhere they
transported vehicles. The Board tries to support this dubious conclusion by stating that
because Mamo “profits” from the drivers’ efforts, the transport of the vehicles
“constitutes the essence of Mamo’s services to its customers.” Again, that conclusion is
not a product of logic.
The theatrical agent earns his money from the actor’s
performance, but it does not make the agent an actor.
The majority’s reliance on Home Care Professionals of Arkansas, Inc., v.
Williams, 95 Ark. App. 194, 235 S.W.3d 536 (2006), hereinafter “HCP,” to affirm the
Board’s “source of profit” rationale is also troubling. In the first place, I believe that HCP
was wrongly decided and I would take this opportunity to overrule it. However, while I
can accept the consequences of stare decisis, I cannot accept the extension of the flawed
HCP holding that this court has announced today in the instant case. HCP is clearly
distinguishable from the case at bar. As the majority notes, HCP originally provided
direct homecare services and only later “evolved” into a referral service. The HCP court
found it significant that HCP’s Articles of Incorporation declared that its “purpose is to
provide homecare for the elderly.” I suppose the State of Arkansas has the right to rely
on the official declarations that a business makes to the secretary of state. In the instant
case, there is no equivalent declaration of corporate purpose. Additionally, HCP required
its independent contractors to sign noncompetition covenants that “protects” its customer
list. Mamo imposed no such restriction on the drivers.
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The prudent course would be to limit HCP to situations where an entity has held
itself out as providing a particular service and restricting access to clients. Instead the
majority has written an opinion that is as potentially farreaching as it is illadvised. I
have already discussed how actors may now potentially be viewed as the employees of
their agents. Arguably, this reasoning would apply to all employment agencies as well.
However, I believe the reach of this opinion is far greater. There are hundreds of poultry
farmers in this state that raise chickens under contract with Tyson Foods. Are they now
“employees” of Tyson? Could the rice farmers in this state suddenly be declared
“employees” of Riceland? I suspect that the court of appeals has unwittingly opened a
Pandora’s Box.
I believe that this case should be reversed and remanded to the Board of Review.
MILLER, J., dissenting.
I. Introduction
This case requires us to determine the meaning of the phrase “places of business,”
which is found in Arkansas Code Annotated section 1110210, the statute defining
“employment,” when determining which work relationships are subject to unemployment
taxation. The majority’s determination that Mamo’s places of business include every
alley, roadway, highway, and freeway in the United States and Canada is too broad,
leading to an unreasonable result that is unsupported by the plain language of the statute.
There is no doubt that Arkansas Code Annotated section 1110210 is a very broad
statute that requires almost every entity utilizing independent contractors in the State of
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Arkansas to pay unemployment taxes for those contractors. To reach this result, the
statute broadly defines employment as almost any service provided, “irrespective of
whether the common law relationship of master and servant exists.” Ark. Code Ann. §
2
1110210(e). The statute, however, exempts a small number of work relationships from
the definition of “employment,” and that is the issue presented by this case.
II. Background
Appellant Mamo Transportation, Inc. contracts with its customers to deliver large
vehicles where conventional hauling is not financially efficient. It then contracts with
drivers to deliver the large vehicles for its customers. Sylvia JonesAllen contracted with
Mamo to deliver vehicles for Mamo’s customers. Mamo was not required to assign
deliveries to JonesAllen and she was not required to accept deliveries from Mamo.
JonesAllen was under contract for approximately three months, during which time she
made only three deliveries. She had an accident on her third delivery and Mamo decided
not to assign any future deliveries to her.
JonesAllen then filed a claim for
unemployment benefits.
It is undisputed that JonesAllen was a commonlaw independent contractor and
was not Mamo’s employee. JonesAllen wrote that she was an independent contractor on
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Citizens, however, remain free to independently contract for their labor and the courts
recognize independent contractor relationships when, among other things, determining
liability for contract and tort disputes. See, e.g., Reynolds Health Care Servs., Inc. v. HMNH,
Inc., 364 Ark. 168, 217 S.W.3d 797 (2005) (breach of contract); Draper v. Conagra Foods,
Inc., 92 Ark. App. 220, 212 S.W.3d 61 (2005) (tort).
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her application for unemployment benefits. She was free to decide when and if she would
deliver vehicles for Mamo’s customers and Mamo was free to decide when and if it
would use her to deliver vehicles for its customers. She was free to contract with
whomever she wanted, whenever she wanted, including Mamo’s competitors. Mamo
was free to contract with other independent contractors whenever it wanted and was not
required to ever assign a delivery to JonesAllen. Mamo did not train her or provide her
with the tools of her trade. She paid her own taxes and paid her own expenses, including
lodging, meals and fuel. Mamo did not direct her as to how to deliver the vehicles and
she was free to deliver the vehicles in any manner she chose.
While all of this is true, Arkansas’ unemployment compensation act is not limited
by the common law definition of employment. As pointed out by the majority, Arkansas
Code Annotated section 1110210(e) provides:
(e) Service performed by an individual for wages shall be deemed to be
employment subject to this chapter irrespective of whether the common law
relationship of master and servant exists, unless and until it is shown to the
satisfaction of the director that:
(1) Such individual has been and will continue to be free from control and
direction in connection with the performance of the service, both under his
or her contract for the performance of service and in fact; and
(2) The service is performed either outside the usual course of the business
for which the service is performed or is performed outside of all the places
of business of the enterprise for which the service is performed; and
(3) The individual is customarily engaged in an independently established
trade, occupation, profession, or business of the same nature as that
involved in the service performed.
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Mamo does not dispute that JonesAllen received wages, a term which is defined broadly
as “all remuneration paid for personal services. ...” Ark. Code Ann. § 1110215 (Supp.
2007). Mamo, therefore, had to satisfy this threeprong test to be exempted from paying
unemployment taxes for JonesAllen. The Arkansas Department of Workforce Service
determined that Mamo met the first prong of the test as provided in section 1110
210(e)(1). The Department, however, found that Mamo failed to satisfy the second
prong, which required Mamo to show that the service provided by JonesAllen was
“performed outside of all the places of business of the enterprise for which the service is
performed,” as required by section 1110210(e)(2). Because Mamo was required to
satisfy all three prongs of the test, the Department did not address the third prong, which
is found in section 1110210(e)(3).
The majority, citing Home Care Professionals of Arkansas, Inc. v. Williams, 95
Ark. App. 194, 235 S.W.3d 536 (2006), and a number of cases from other states, found
the Department’s logic sound and affirms. I disagree and would reverse.
III. Mamo Transportation, Inc. was not Sylvia JonesAllen’s Employer
A. The Enterprise For Which Service is Performed
The essential question is, did JonesAllen perform all of her service “outside of all
of the places of business of the enterprise for which the service is performed?” See Ark.
Code Ann. § 1110210(e)(2). Although it was not addressed by the Board, we must
begin by determining what was the “enterprise for which the service [was] performed” by
JonesAllen? See id. Was Mamo the enterprise for which JonesAllen performed service
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or was each of Mamo’s customers the enterprise? The record is clear that Mamo
contracted to deliver the vehicles for its customers and then contracted with its
subcontractors to make the deliveries. Mamo was not a transportation broker but was a
licensed carrier, and its obligations to its customers were “farmed out” to its drivers. See
Transplace Stuttgart, Inc. v. Carter, 98 Ark. App. 418, __ S.W.3d __(2007). Because
Mamo was ultimately responsible to its customers for the service provided by Jones
Allen, Mamo was the enterprise to which JonesAllen provided service. Had Mamo been
a transportation broker, JonesAllen’s claim for benefits would have been a nonstarter
because the enterprise to which she provided service would have been the customer, not
Mamo.
B. Mamo’s Places of Business
Although Mamo was the enterprise to which JonesAllen provided service, Mamo
was exempt from paying unemployment taxes for her because she did not perform those
services for Mamo at any of its places of business. See Ark. Code Ann. § 1110
210(e)(2). We should not read anything into the statute but we must read the statute
literally and give its words their ordinary and usually accepted meaning in common
language. Phillips v. Ark. Dep’t of Human Servs., 85 Ark. App. 450, 158 S.W.3d 691
(2004); Brandon v. Ark. Pub. Serv. Comm’n, 67 Ark. App. 140, 992 S.W.2d 834 (1999).
Mamo’s places of business, using the usually accepted meaning in common language, are
its facilities, which are located in Osceola, Indiana; Little Rock, Arkansas; Charlotte,
North Carolina; and Bloomsburg, Pennsylvania. The record is clear that JonesAllen
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performed no services for Mamo at any of these facilities. Therefore, her services were
performed outside of all of Mamo’s places of business.
The majority’s holding that Mamo’s places of business include every alley,
roadway, highway, and freeway in the United States and Canada does not comport with
the common meaning of the language found in the statute. Had the legislature intended to
cover every conceivable place in which Mamo provided services, the statute would have
required Mamo to show that the service is “performed outside of all of the places in
which the enterprise performs services,” not “outside of all the places of business of the
enterprise.”
In support of its expansive reading of the statue, the majority relies on Home Care
Professionals of Arkansas, Inc. v. Williams, supra. In Home Care Professionals, we held
that the appellant, HCP, was not exempt from paying unemployment taxes for the in
home caregivers that it assigned to its clients. Id. It is arguable that Home Care
Professionals was wrongly decided. See id. (Baker, J., dissenting). We, however, will
save that issue for another day, because this case is clearly distinguishable from Home
Care Professionals.
As the majority opinion points out, in Home Care Professionals we adopted the
Board’s determination that “the caregivers represented HCP’s interest on the client’s
premises, thereby making the clients’ premises a place of business.” Home Care
Professionals, supra. (Emphasis added.) Although we extended the phrase “places of
business” to include the homes of HCP’s clients, we did not extend that phrase to include
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every conceivable place that the caregivers traveled in an effort to serve HCP’s clients.
And that is the rub of the case before us; the majority’s opinion takes the next step of
expanding the phrase “places of business” to include a greater number of places, none of
which would be considered places of business by the ordinary reasonable person.
The majority extends the phrase “places of business” beyond well defined places
such as the homes and business locations of customers. It reaches out and applies it to
every conceivable place in which an independent contractor could possibly provide a
service for its prime contractor’s customers. In the present case, this specifically includes
every alley, roadway, highway, and freeway in the United States and Canada. Although
seemingly absurd, the majority’s definition also includes all of the railways and
waterways in, and all of the air space above the United States and Canada. This is the
case because Mamo’s independent contractors were not restricted in the method by which
they could have the vehicles delivered. Although it may have caused financial ruin,
JonesAllen could have arranged to have the vehicles delivered by some method other
than driving. Therefore, Mamo’s places of business include every possible shipping route
in the United States and Canada. Not only is this unreasonable, it is not what the
legislature intended. Indeed, it contradicts the common meaning of the language of the
statute.
There is also a secondary distinction between this case and Home Care
Professionals. Although JonesAllen was clearly an independent contractor, it is not clear
whether the caregivers in Home Care Professionals were truly independent. For
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example, in addition to referring its caregivers to its customers, HCP also administered
the caregivers’ work schedules. Id. When a caregiver was unable to make a scheduled
inhome visit, HCP was responsible for finding a replacement to meet the caregiver’s
obligation. Id. Additionally, the caregivers’ contracts with HCP contained noncompete
clauses, which restricted the ability of its caregivers to contract for their labor once their
relationship with HCP concluded. Id.
The majority also relies on a number of cases from foreign jurisdictions to support
its interpretation of section 1110210(e)(2). I will not give a detailed analysis of those
cases, because I stand firm in deferring to the common meaning of the language of
section 1110210(e)(2). Moreover, there are cases from other jurisdictions which are in
direct opposition to the results reached by the foreign cases cited by the majority. See,
e.g., Commissioner of Div. of Unemployment Assistance v. Town Taxi of Cape Cod, Inc.,
68 Mass. App. Ct. 426, 862 N.E.2d 430 (2007) (finding that the services provided by taxi
drivers occurred outside of the business premises of the taxi company).
IV. Conclusion
This court’s interpretation of the phrase “places of business” should be constrained
to the common meaning of that phrase. For this reason, Mamo’s places of business are its
facilities in Osceola, Indiana; Little Rock, Arkansas; Charlotte, North Carolina; and
Bloomsburg, Pennsylvania. Because JonesAllen never provided services to Mamo at
these facilities, I would reverse the decision of the Department of Workforce Services.
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