Moffat v. DWS

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Moffat v. DWS, Case No. 20001080-CA, Filed November 16, 2001 IN THE UTAH COURT OF APPEALS


Ralph R. Moffat;
Village Park Apartments, LLC;
and Willow Brook Apartments, LLC,


Department of Workforce Services,
Workforce Appeals Board,

(Not For Official Publication)

Case No. 20001080-CA

November 16, 2001 2001 UT App 342 -----

Original Proceeding in this Court

Donald J. Winder and John Warren May, Salt Lake City, for Petitioners
Suzan Pixton and Virginia S. Smith, Salt Lake City, for Respondent -----

Before Judges Greenwood, Billings, and Davis.

GREENWOOD, Presiding Judge:

Ralph Moffat appeals the Utah Department of Workforce Services' (the Department) decision that Gaylan Harris is Moffat's employee and not an independent contractor. We commend Moffat for meeting his burden to marshal the evidence supporting the Department's decision; see Utah R. App. P. 24(c); however, we conclude that the Department's decision is supported by substantial evidence and provides a reasonable interpretation and application of Utah law. Accordingly, we affirm.

To determine whether the Department's decision is supported by substantial evidence, this court looks at the entire record for a "'quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion.'" Tasters Ltd. v. Department of Employment Sec., 863 P.2d 12, 18 (Utah Ct. App. 1993) (citation omitted). Furthermore, because the Legislature granted the Department discretion in interpreting Utah Code Ann. § 35A-4-204 (1997), see Tasters, 863 P.2d at 19, this court will defer to the Department's legal conclusions if they are "'reasonable and rational.'" Id. (citation omitted).

In this case, the Department's determination is both factually and legally reasonable. Section 35A-4-204 defines an employee as one who provides services for wages or under any contract of hire, whether written or oral, express or implied, including service in interstate commerce, and service as an officer of a corporation.
. . . .

[U]nless it is shown to the satisfaction of the division that: (a) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the contract for hire for services; and

(b) the individual has been and will continue to be free from control or direction over the means of performance of those services, both under the individual's contract of hire and in fact. Utah Code Ann. § 35A-4-204(1), (3) (1997). Hence, the person claiming to be an independent contractor must show that he meets both elements.

The Department's determination that Harris met neither of the above elements is reasonable. First, Harris testified that he performs bookkeeping services solely for Moffat, and he does not perform those services for any other client. Second, based on Harris's testimony, the administrative law judge found that Moffat required Harris to work five days a week at Moffat's place of business from 9:00 a.m. to 6:00 p.m. with a one hour lunch break.(1) These facts, among others presented, show that Harris is not engaged in an independently established business of the same nature as the services he provides for Moffat, and is not free from Moffat's control or direction. Therefore, the Department's determination is reasonable and rational. Accordingly, we affirm the Department's decision.

Pamela T. Greenwood,
Presiding Judge -----


Judith M. Billings, Judge

James Z. Davis, Judge

1. Moffat argues that in the initial audit by the Department, he claimed Harris could come and go as he pleased. However, during the proceeding before the administrative law judge, Moffat did not refute Harris's testimony and provided no contrary evidence. Furthermore, on appeal, Moffat argues that because Harris was free to take his hour lunch break whenever he wanted, Harris was not under Moffat's control. We find this argument unpersuasive and conclude the Department's determination is reasonable in light of the entire record.