Department Of Labor And Industries, Respondent V. Lyons Enterprises, Inc., Appellant (Majority)

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FILED COURT OF APPEALS DIVISiON II 2515 FEB STATE 3 q@i 8: 55 OF WAS!EtF GTOH BY Y IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 45033 -0 -II DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION LYONS ENTERPRISES, INC. DBA JAN PRO CLEANING SYSTEMS, Appellant. JOHANSON, C. J. — Appellant Lyons Enterprises Inc., doing business as Jan -Pro Cleaning Systems ( Lyons), appeals from the superior court' s partial affirmance and partial reversal of the Board of Industrial Insurance Appeals' ( Board) decision and order. Lyons sells janitorial franchises, and the superior court held that Lyons' franchisees were workers for the purposes of the Industrial Insurance Act ( IIA), premiums for all franchisees. Title 51 RCW, and that Lyons was required to pay IIA Like the Board, we conclude that Lyons' franchisees without employees are workers covered by the IIA, but those franchisees who have employees do not come within the purview of the IIA. Remand to the Board is appropriate for a factual determination of which franchisees had employees. We do not reach the issue of equitable estoppel, we reject No. 45033 -0 -II amicus curiae International Franchise Association' s ( IFA) contracts clause claims, and we deny attorney fees. The superior court is affirmed in part and reversed in part. FACTS Lyons is a distributor of Jan-Pro cleaning franchises. Lyons does not characterize itself as a " cleaning" business. Although customers enter into contracts with Lyons to clean their facilities, it is not Lyons that does the cleaning.' purchased from Lyons the right to Rather, the cleaning is done by franchisees who have participate in the " Jan-Pro System." Clerk' s Papers ( CP) at 23. A franchisee becomes a part of the Jan-Pro System by entering into a contract with a regional distributor such as Lyons. Pursuant to this contract, a franchisee pays a franchise fee up front, a royalty for use of Jan-Pro' s brands and methods, and management fees for Lyons' business support services. management does, the The royalties total 10 percent of the franchisee' s gross billings and the fees total 5 more percent of both the franchisee billings. In practical terms, the more business a franchisee and Lyons benefit. Finally, the franchisee must enter a noncompete covenant for the duration of the Jan-Pro contract and for one year thereafter. In return for these fees and commitments, a franchisee is permitted to use the Jan-Pro brand and trademarks franchisee is and enters in business and also guaranteed a into cleaning is instructed in Jan-Pro' certain contracts, and amount of gross bills clients on s proprietary cleaning billing. behalf of procedure. The Lyons solicits clients, negotiates its franchisees. Lyons does these acts for the benefit of franchisees who lack experience in administering a business. If a franchisee 1 Lyons has seven full time employees, none of whom work as cleaners. franchisees. 2 Lyons has about 100 No. 45033 -0 -II solicits a customer itself, the customer must sign a contract with Lyons, and the cleaning contract becomes Lyons' property. All franchisees are organized as independent businesses —they carry their own business licenses and insurance and pay IIA premiums for their own employees if they have them. Franchisees also bear the risk of loss in the event a customer fails to pay. A franchisee is free to reject a cleaning contract, in which case Lyons will provide the franchisee with a replacement account in order to maintain the guaranteed amount of gross billing. Lyons may remove a franchisee from a cleaning contract, but if Lyons does so for a reason other than franchisee 2 misconduct, then Lyons must provide the franchisee with a replacement account. A franchisee can only be terminated from the Jan-Pro System for cause. Before they can do any work, new franchisees are required to complete 30 hours of training over 5 run a weeks. business The trainingincludes cleaning techniques and safety procedures as well as how to and deal Franchisees must also comply with a 422 -page training with customers. manual on Jan- Pro cleaning techniques, a 200 -page safety manual, and a 100 -page policies and procedures manual. customers. In order to evaluate franchisees' compliance, Lyons periodically audits its But Lyons does not supervise its franchisees during the actual cleaning nor does it send its own personnel to the job site. Franchisees can hire and fire their own subordinates with no input from Lyons, although the contract specifies that the 2" franchisee' Franchisee Misconduct" is defined s employees must as " be " qualified and competent." CP at faulty workmanship, untrustworthiness, dishonesty, providing services in a manner unsatisfactory to one or more Customers, or otherwise defaulting under this Agreement or its service contract with 3 the Customer." CP at 318. No. 45033 -0 -II 328. Franchisees are responsible for training their own subordinates. About 80 percent of Lyons' franchisees receive assistance from an employee or spouse. The contract is silent as to whether franchisees are required to perform any cleaning work themselves. 3 Finally, franchisees are subject to various conditions in the course of their relationship with Lyons. Any advertising the franchisee does must be approved by Lyons. The franchisee must have Lyons' permission to transfer or sell the franchise. The franchisee supplies its own equipment and materials, but those be must accordance with specifications, obtained " that [ Jan Pro] solely from manufacturers and suppliers, and in authorizes in writing." CP at 328. PROCEDURAL HISTORY In 2005, Labor & Industries ( L &I) audited Lyons and assessed IIA premiums for two of its franchisees. L &I reasoned that these two franchisees " did not meet the criteria for independent contractor under valid UBI, 4 RCW 51 -[ 08] - 180 and as a result, they and 51 -[ 08] - 195" ( were workers for IIA CP at 876) because they did not have a purposes. Lyons understood this audit to mean that most of its franchisees were not covered workers and were not subject to IIA premiums. In reliance on this understanding, Lyons expanded its territory and entered into numerous additional franchise agreements. In 2010, L &I audited Lyons again. This second audit found that 18 franchisees were not workers because they employed workers of their own. But the remaining franchisees were covered 3 The only obligations that the franchisee bears in his or her individual capacity are to complete the training program, supervise the franchise in its day -to -day operations, and " devote his or her best 4 efforts UBI is licensed to managing short and operating the Franchised Business." for " unified business identifier," with one or more state agencies. CP at 329. a number used to identify a business registered or WAC 308 -320 -030( 14). No. 45033 -0 -II workers and conclusion did not qualify for the exception because these franchisees were described in RCW 51. 08. 195. not " free from direction and control." L &I reached this CP at 1640. The audit found that Lyons had the right to control how work results were achieved, noting that exempt independent program signifies negotiated CP at contractors the ordinarily CP opposite." the cleaning contracts, it 1640. at their use Lyons'] extensive training The audit further found that because Lyons 1639. had " control own methods. [ over [ franchisees'] opportunity for profit or loss." The audit also noted that Lyons owned the customer accounts and charged the franchisees various fees. Finally, the audit found that " Lyons Enterprises' business arrangements with the individuals indicate the expectation that the relationship will continue indefinitely, rather than for a specific project or period. This is generally considered evidence that the intent was to create an employer- worker 149, 583. 94 in back only" relationship." premiums. CP at 1640. Ordinarily, Lyons would have owed But the 2010 audit was " completed with an educational focus and merely required Lyons to begin reporting and paying IIA premiums on its covered workers going forward. CP at 1641 ( capitalization omitted). Lyons requested reconsideration of the 2010 audit. Jerold Billings, a litigation specialist for L &I, determined that Lyons was responsible for IIA premiums for all of its franchisees, including the 18 who had their own workers. At an administrative law hearing, Billings testified that L &I had not changed its position since the 2005 audit. Rather, the auditor " made a mistake" and " didn' t look Lyons at the franchise appealed fully." to the Board. CP at 2255 -56. After hearing testimony, Industrial Appeals Judge Wayne B. Lucia issued a proposed decision and order concluding that none of Lyons' franchisees were covered workers. 5 No. 45033 -0 -II L &I appealed final decision to and order three- member a adopting the panel of position of the Board. the 2010 The Board subsequently issued a audit— that those franchisees with their own workers were exempt, but the remaining franchisees were covered workers. Both Lyons and L &I appealed the Board' s decision, and the administrative law review was consolidated franchisees in the Pierce County were covered workers. Superior Court. The superior court held that all of Lyons' Accordingly, it affirmed the Board in part and reversed it in part. Lyons timely appealed the superior court order. ANALYSIS The IIA requires employers to report and pay workers' compensation premiums for all of their workers. Ch. 51. 16 RCW. Therefore, the dispositive question in this case is whether Lyons' franchisees on two are " workers," subsections: as that term is defined under the IIA.5 To answer that question, we rely RCW 51. 08. 180, which defines the term " worker," and RCW 51. 08. 195, which contains exceptions to RCW 51. 08. 180. A franchisee that meets the test described in RCW 51. 08. 180, and does not meet the test described in RCW 51. 08. 195, is Lyons' " worker," and Lyons must pay IIA premiums for that franchisee. 5 This inquiry " involves a different analysis than whether the individual is an employee" as that Group, Inc. v. Dep' t of Labor & Indus., 167 Wn. App. 389, 401, 269 P. 3d 414 ( 2012); see also Daniels v. Seattle Seahawks, 92 Wn. App. 576, 584, 968 P. 2d 883 ( 1998), review denied, 137 Wn.2d 1016 ( 1999). A covered worker may be an employee or an independent contractor so long as the statutory test is met. Norman v. Dep' t of Labor & Indus., 10 Wn.2d 180, 183, 116 P. 2d 360 ( 1941); White v. Dep' t of Labor & Indus., 48 Wn.2d 470, 474, 294 P. 2d 650 ( 1956); Jamison v. Dep' t ofLabor & Indus., 65 Wn. App. 125, 130, term is understood in the common law. Xenith 827 P. 2d 1085 ( 1992). That is, it makes no difference whether Lyons' franchisees are considered employees or independent contractors. 6 No. 45033 -0 -II As we explain below, RCW 51. 08. 180 is properly read to mean that all franchisees of Lyons are " workers" except for those franchisees who have subordinates of their own. Furthermore, the RCW 51. 08. 195 exception does not apply to the " workers" Lyons maintains. I. STANDARD OF REVIEW The Administrative Procedure Act, ch. 34. 05 RCW, governs judicial review of a Board decision. RCW 51. 48. 131; R & G Probst P. 3d 413, review v. Dep' t denied, 152 Wn.2d 1034 ( 2004). of Labor & Indus., 121 Wn. App. 288, 293, 88 On review, we occupy the same position as the superior court, and our review is limited to the certified agency record. Xenith Group, Inc. v. Dep' t of Labor & Indus., 167 Wn. App. 389, 393, 269 P. 3d 414 ( 2012). We must reverse if the agency erroneously interprets or applies the law, the order is not supported by substantial evidence, or the order is arbitrary and capricious. RCW 34. 05. 570( 3)( d), ( e), ( i). As the party challenging the Board' s decision, Lyons has the burden to show that one or more of these criteria were satisfied. RCW 51. 48. 131; RCW 34.05. 570( 1)( a); R & G Probst, 121 Wn. App. at 293. An agency' s interpretation or application of the law is reviewed de novo. Xenith Group, 167 Wn. App. at 393 -94. That said, the IIA is a remedial statute and we must construe it liberally for the purpose of reducing to a minimum the suffering and economic loss arising from injuries and/ or death occurring in the course of employment." Johnson v. Tradewell Stores, Inc., 95 Wn.2d 7. 39, 743, 630 P. 2d 441 ( 1981) ( quoting RCW 51. 12. 010). will be resolved in favor of the worker. Dennis v. In interpreting the statute, all doubts Dep' t of Labor & Indus., 109 Wn.2d 467, 470, 745 P. 2d 1295 ( 1987). The agency' s findings of fact are reviewed for substantial evidence. RCW 34. 05. 570( 3)( e). This means that the court will "view the evidence and its reasonable inferences in the light most 7 No. 45033 -0 -II favorable to the prevailing party in the highest forum that exercised fact finding authority." Johnson Dep' t v. of Health, 133 Wn. App. 403, 411, 136 P. 3d 760 ( 2006). But if a conclusion of law is labeled as a finding of fact, then it will be treated as a conclusion of law and reviewed de novo. Dep' t ofLabor & Indus. v. Mitchell Bros. Truck Line, Inc., 113 Wn. App. 700, 704 -05, 54 P.3d 711 ( 2002). 6 II. RCW 51. 08. 180 —DEFINING WORKERS Lyons argues that its relationship with its franchisees is not one of employer and worker but rather a bilateral contract between two independent businesses. Essentially, Lyons claims that it is a separate entity from each of its franchisees and that the franchise agreement establishes the terms of their business relationship. Lyons argues that its franchisees are not workers because they can and do hire their own employees to do the work, meaning that their contracts with the franchisees are not for personal labor. L &I argues that Lyons' franchisees are covered workers because the franchisees serve a function that is indistinguishable from the function that an . employee in a traditional cleaning service would perform. Lyons is partially correct — we hold that those franchisees who actually take on their own subordinates are not covered workers, but those franchisees who work alone are covered under the IIA. We affirm the superior court in part, reverse the superior court in part, and reinstate the Board' s decision. 6 For instance, in Mitchell Bros., an industrial insurance judge entered a finding of fact that certain lease- operators were " workers" because they " owned" the vehicles they leased as that term is used 113 Wn. App. at 704. Because the finding that the operators were in RCW 51. 08. 180( 1). workers" turned on the legal conclusion that the workers satisfied a statutory criterion, this court applied de novo review. Mitchell Bros., 113 Wn. App. at 705. 8 No. 45033 -0 -II The IIA is it is the meant purpose of to broad provide this title to workers compensation coverage. See RCW 51. 12. 010 In keeping with embrace all employments ") ( emphasis added). that goal, RCW 51. 08. 180 defines a worker as every person in this state who is engaged in the employment of ... or who is working under an independent contract, the essence ofwhich is his or her personal labor for an employer. Emphasis non, added.) the very heart The " essence" of a contract means " the gist or substance, the vital sine qua and soul of his Haller contract." v. Dep' t of Labor & Indus., 13 Wn.2d 164, 168, 124 P. 2d 559 ( 1942). What services a contractor provides is a question of fact. But "whether these services constitute ` personal 105 Wn. App. labor' ... 232, 236, 19 P. 3d 428, is review a question of law." Silliman v. Argus Servs., Inc., denied, 144 Wn.2d 1005 ( 2001). In determining whether work is personal labor, we " look to the contract itself, the work, the parties' situation, and other concomitant circumstances." Ins. Co. v. Dep' t of Labor Silliman, 105 Wn. App. at 236 -37; see also Mass. Mut. Life & Indus., 51 Wn. App. 159, 163, 752 P. 2d 381 ( 1988). Furthermore, in deciding whether Lyons' franchisees performed personal labor, we are guided by the Supreme Court' s test in White v. Department of Labor & Industries, 48 Wn.2d 470, 294 P. 2d 650 ( 1956). A. REALITIES OF THE SITUATION In the determining situation. "' Dep' t whether of Labor & Indus. P. 2d 843 ( quoting Ancheta Wn.2d 1015 ( 1982). mile on a per - independent v. Daly, v. contractors are workers, we Tacoma Yellow Cab Co., look to the "` realities of 31 Wn. App. 117, 124, 639 77 Wn.2d 255, 263, 461 P. 2d 531 ( 1969)), review denied, 97 There, the appellant companies leased taxi cabs to independent contractors payment scheme, subject by any person except by the Lessee or only to the his regular 9 proviso that "[ t]he taxi cab shall not be operated employees." Tacoma Yellow Cab, 31 Wn. App. No. 45033 -0 -II at 123. one of Like Lyons, the appellants argued that their relationship with the taxi drivers was merely lessor and lessee We disagreed, holding that the " independent not employer and worker. lease contract" was actually " a method to place taxis and drivers on the city streets of Tacoma to carry App. passengers at rates which are established 124. at contribute[ The lessee drivers d] nothing to the performed contract except by local the their Tacoma Yellow Cab, 31 Wn. ordinances." same function personal as labor." employees because "[ t]hey Tacoma Yellow Cab, 31 Wn. App. at 124. Like the taxi leases in Tacoma Yellow Cab, the franchise agreements between Lyons and its franchisees serve as a method to clean facilities for customers. Customers enter into cleaning contracts with Lyons not the individual franchisees. The essence of these cleaning contracts is that labor," through someone' s " whether this labor is " the end customer' s facility is made clean. The question then becomes personal." In order to answer that question, we turn to the Supreme Court' s White test. B. DELEGATION OF CONTRACT DUTIES - THE WHITE TEST Our Supreme Court has enumerated three types of contractors who will not be covered: a) [ Those] who must of necessity own or supply machinery or equipment ( as distinguished from the obviously could usual not perform hand tools) to the perform contract without the contract ... assistance . . . or ( b) who or(c) who of necessity or choice employs others to do all or part of the work he has contracted to perform. White, 48 Wn.2d at 474. Lyons does not argue that its franchisees owned or supplied specialized machinery or equipment or that its franchisees could not have performed the cleaning contracts without assistance. Therefore, only the third prong is at issue here. 10 No. 45033 -0 -II Lyons argues that the third prong of White is satisfied so long as the contractor has the right to hire subordinates whether or not the contractor actually does so. See Mass. Mut., 51 Wn. App. at 165 ( no coverage where " the contracting parties contemplated the delegation of duties by the independent means contractor ") ( emphasis added). just that —a person and no one else. In Lyons' view, the word " personal" in the statute is a worker only if the contract demands the labor of that specific person See Cook v. Dep' t of Labor & Indus., 46 Wn.2d 475, 477, 282 P. 2d 265 ( 1955) Labor that may be done by others under the contract is not personal, as the word is used in the statute. "), overruled by White, 48 Wn.2d 470; Crall 499, 275 P. 2d 903 ( 1954) ( same), overruled v. Dep' t of Labor & Indus., 45 Wn.2d 497, Our Supreme Court has White, 48 Wn.2d 470. by specifically rejected that reading of the statute holding that the language of Cook and Crall was too broad" and that the IIA was meant to encompass more than " those extremely rare cases in which the party for whom the work is done requires the personal services of the independent contractor and is unwilling that any part of the work be done by someone else." White, 48 Wn.2d at 473 -74. When the Supreme Court rejected Cook and Crall, it made clear that the third prong of White if he must or she be read may at some point delegate, standing contrary, whether we the a literally — contractor is excluded if he or she actually " employs others" not . employ others. We have never held that the hypothetical right to alone, removed a contractor have held that from the contractual permission contractor supplies personal to delegate is " labor. Jamison 125, 133, 827 P. 2d 1085 ( 1992). 11 purview of v. RCW 51. 08. 180. not To the in itself dispositive" of Dep 't ofLabor & Indus., 65 Wn. App. No. 45033 -0 -II And in the cases which Lyons relies on, the contractors in question actually employed subordinates.. portions Argus of See Mass. Mut., 51 Wn. their duties to employed others App. at others ") ( emphasis to do all of the 165 ( " see also Silliman, 105 Wn. App. at 237 added); security agents may and do delegate significant emphasis added); In re James D. Shanley work ") ( Wife, dba, Nw. Mut. Life Ins. Co., No. 870485, 1988 WL 169377, Appeals ( Wash. Sept. 8, 1988) ( " at * 3, Bd. of Indus. Ins. individual agents can and do employ others to perform at least part of the contract to sell insurance "). But the superior court' s decision went further, holding that even those franchisees who did employ their own subordinates were covered workers. This decision contravenes the Supreme Court' s plain holding in White that a contractor who " employs others to do all or part of the work he has contracted to perform" is not covered by the IIA. 48 Wn.2d at 474. Just as a literal reading of White forecloses Lyons' legal theory, a literal reading of White also shows that the superior court erred. Although Jamison may be read to support the superior court' s holding, we do not read Jamison so broadly. In Jamison, the court noted that although there " was some evidence suggesting that one or two of the timber fallers may have had part-time employees helping them with the contract," it was not clearly erroneous for the Board to find that Jamison' s independent contractors were " workers" within the meaning of the act. 65 Wn. App. at 133. We conclude this language from Jamison is too equivocal to retreat from White' s clear mandate that a contractor who employs others is not covered by the IIA. 7 In Jamison, we noted that in Tacoma Yellow Cab, we had held that workers were covered despite having their own subordinates. 65 Wn. App. at 133. But nowhere in Tacoma Yellow Cab does it say that the taxi drivers in question actually had subordinates. 12 No. 45033 -0 -II Applying the third prong of White, the Board has consistently declined to find contractors covered where they employed subordinates of their own to do some or all of the contract work. See In re Mica Peak Constr. LLC, No. 11 21880, 2013 WL 1558338, Bd. of Indus. Ins. Appeals Wash. Jan. 15, 2013); of In re Alliance Flooring Serv., Inc., No. 03 32294, 2005 WL 2386288, Bd. Indus. Ins. Appeals ( Wash. June 13, 2005); In re Heartland Indus. Inc., No. 04 13149, 2005 WL 1075898, Bd. of Indus. Ins. Appeals ( Wash. Jan. 10, 2005); In re Millennium Exteriors, LLC, No. 02 11265, 2003 WL 22696992, Bd. of Indus. Ins. Appeals ( Wash. Sept. 9, 2003); In re John B. Strand et ux dba Strand Enters., No. 93 2772, 1994 WL 396526, Bd. of Indus. Ins. Appeals Wash. June 27, 1994); In re James D. Shanley No. 58223, 1982 WL 20480, Bd. of he Indus. Ins. Appeals ( Wash. or franchisee works alone, then & Wife, 1988 WL 169377; In re Charles G. French, she May is necessarily exerting 26, 1982). personal 8 labor. We agree. If a However, if a franchisee employs his or her own subordinates to aid in the cleaning, then the franchisee is necessarily contributing more to the contract than his or her personal labor — the franchisee is contributing the labor of his or her subordinates. Under White, those franchisees who employ subordinates are excluded from the IIA as a matter of law. Here, Lyons' franchisees are free to hire subordinates, and many do. See CP at 24 Approximately 80 percent of the franchisees have employees or assistants, helping them service the ... cleaning contracts. "). The Board did not err by finding that these franchisees were not 8 While administrative decisions are not binding on this court, we recognize significant decisions of persuasive authority in interpreting the IIA. O' Keefe v. Dep' t of Labor & Indus., 760, 766, 109 P. 3d 484 ( 2005), review denied, 156 Wn.2d 1003 ( 2006). the Board as 126 Wn. App. 13 No. 45033 -0 -II 9 workers. " Accordingly, we reverse the superior court and reinstate the Board' s decision as to the franchisees who had subordinates only. On the other hand, those franchisees that do not employ subordinates are " workers" and as to them, we affirm the superior court. Below, we address Lyons' argument that these " workers" are excluded from the purview of the IIA by statute. III. RCW 51. 08. 195 EXCEPTION Lyons argues that the franchisees were " free from control or direction over the performance of the service" as required by and " customarily engaged in an independently RCW 51. 08. 195( 1), established trade, occupation, profession, or business" as required by RCW 51. 08. 195( 3) and, thus, are excepted from being considered workers. Because the franchisees are not independently established businesses, the statutory exception is inapplicable. A contractor who would otherwise be a covered worker may be excluded from the purview of the IIA if he or she meets all six conditions. RCW 51. 08. 195. Our focus is on the third condition: The individual is customarily engaged in an independently established trade, occupation, profession, or business, of the same nature as that involved in the contract of service, or the individual has a principal place of business for the business the individual is conducting that is eligible for a business deduction for federal income tax purposes. RCW 51. 08. 195( 3). All six subparts must be satisfied for the exception to apply —a contractor who does not meet any one of these conditions is a " worker" for IIA purposes. Malang v. Dep 't 9 Although the Board' s finding that some franchisees were not " workers" is labeled as a finding of fact, it is properly analyzed as a conclusion of law because it depends on whether the workers rendered personal labor. Silliman, 105 Wn. App at 236. But the Board' s conclusion is supported even on de novo review. 14 No. 45033 -0 -II of Labor & Indus., 139 Wn. satisfy subpart ( 3), Subpart ( 3) App. 677, 689, 162 P. 3d 450 ( 2007). Because the franchisees do not they do not qualify for the statutory exception. requires that the contractor be " customarily engaged in an independently established trade, occupation, profession, or business, of the same nature as that involved in the contract of service, or the individual has a principal place of business for the business the individual is conducting that is 51. 08. 195( 3). eligible for a business deduction for federal income tax purposes." RCW Lyons does not argue that its franchisees have principal places of business that are eligible for a business deduction, only that the franchisees are customarily engaged in an independently customarily enterprise established engaged must be "` in business. an independently v. established business" means that the contractor' s created and existing separate and apart from the relationship with the particular employer, an enterprise Constr. Co. In the unemployment compensation context,10 the language that will survive the termination Gordon, 70 Wn.2d 657, 666, 425 P.2d 16 ( 1967) ( of that relationship.' All - tate S quoting Baker v. Cameron, 240 Or. 354, 365, 401 P. 2d 691 ( 1965)). Here, the franchisees' businesses are intimately tied to their relationship with Lyons. The Board found, and Lyons does not challenge, that " most [ franchisees] purchased their contracts for extra income, and were not in the commercial cleaning business prior to that purchase." CP at 28. Therefore, the franchisees' businesses were not created " separate and apart" from their franchise agreement with Lyons. Nor will their businesses survive the termination of the franchise 10 While the unemployment compensation system relies on a different statute, the unemployment compensation statute is similar to the IIA in that it is a remedial act that is liberally construed. RCW 50. 01. 010. 15 No. 45033 -0 -II to the contrary, franchisees must terminate their cleaning businesses when they cease agreement — to be Lyons' franchisees, as they are subject to a one -year noncompete agreement when they leave business. the Lyons' franchisees do not satisfy RCW 51. 08. 195( 3), meaning that Lyons cannot claim the RCW 51. 08. 195 exception. The superior court was correct, albeit for different reasons. 11 We affirm the superior court on different grounds regarding the applicability of RCW 51. 08. 195. Because the RCW 51. 08. 195 exception does not apply, the " personal labor" test articulated in RCW 51. 08. 180 and discussed above is dispositive. As the Board found, those franchisees that satisfied the RCW 51. 08. 180 test, i. e., those who lacked subordinates, are covered workers and Lyons must pay IIA premiums for these workers. IV. REMAND Lyons requests a remand to determine which franchises actually employ their own subordinates to do the work. L &I argues that the Board' s findings as to which franchisees had their own subordinates was supported by substantial evidence. We agree with Lyons. The record contains conflicting evidence on how many of Lyons' franchisees employed subordinates. On one hand, the president of Lyons testified that 80 percent of the franchisees used employees or assistants. On the other hand, the auditor and the Board both found that only 18 franchisees " provided the labor of others" and were thus exempt from IIA coverage. CP at 191. Although we defer to the Board' s findings of fact, there is significant reason to doubt the accuracy of L &I' s estimates. L &I' s auditor testified that he did not speak to any franchisees in the course 11 The the basis the but on correctly decided that the RCW 51. 08. 195 exception did not apply — RCW 51. 08. 195( 1), held that Lyons " retained significant control and direction over superior court of performance of franchisees." CP at 2398. The superior court did not reach RCW 51. 08. 195( 3). 16 No. 45033 -0 -II of the audit; rather, he relied on a questionnaire that only 49 out of 108 franchisees answered. Indeed, a number of franchisees who were not listed as exempt in the 2010 audit testified that they used employees or assistants in their work. L &I argues that Lyons failed to name any specific franchisees (besides one, Sung Joo Lee) whom it authority understood over the to have employees. franchisees' hiring 12 This fact is not surprising because Lyons had no decisions. It should also be noted that Lyons offered testimony by a number of individual franchisees who might have been better able to indicate how many employees they had, but the court rejected this testimony as duplicative. We hold that the Board' s decision that only 18 of the franchisees had subordinates was not supported by substantial evidence and remand for further fact finding proceedings. V. ESTOPPEL Lyons argues that even if we agree with L &I' s interpretation of RCW 51. 08. 180 and . 195, L &I should be estopped from assessing IIA premiums for the remaining duration of Lyons' franchise contracts. L &I argues that estoppel is inappropriate because Lyons could not have reasonably relied on the 2005 audit to mean that the franchisees were not covered workers. Because we remand to the Board for further determinations, we do not reach this issue because it is not yet ripe: the equities may change depending on the Board' s findings. 12 L &I also argues that Lyons waived any argument that the Board' s findings were unsupported by substantial evidence. This is Lyons identified the challenged findings in its untrue — assignments of error. 17 No. 45033 -0 -II VI. CONTRACTS CLAUSE IFA argues that L &I' s change in position impaired Lyons' contracts with its franchisees in violation of the state and federal constitution. We agree with L &I that the State' s purely internal change to its interpretation of a statute is not subject to the contracts clause. U. S. Const., Obligation of art. I, § 10 Contracts," provides while Wash. Const., obligations of contracts shall ever Pierce same effect." County that "[ v. be State n] o art. passed." shall ... pass any ... I, § 23 provides that "[ n] o Law impairing the ... law impairing the These clauses are " coextensive and are given the State, 159 Wn.2d 16, 27 n. 5, 148 P. 3d 1002 ( 2006); see also Margola Assocs. v. City ofSeattle, 121 Wn.2d 625, 653, 854 P. 2d 23 ( 1993). As threshold a Distrib. Co. Legislature v. matter, the contracts clause can only Heublein, Inc., 55 Wn. can ` pass' a ` law' impairing App. be violated by a " law." See Birkenwald 6, 776 P. 2d 721 ( 1989) ( " 1, contractual obligations. "). However, only a But a plurality of our Supreme Court has implied that an agency' s departure from a publicly distributed policy memorandum may have the " effect of impairing the obligations of ... contracts." Indus., 159 Wn.2d 868, 890, 154 P. 3.d 891 ( 2007). Silverstreak, Inc. v. Dep' t ofLabor Nevertheless, we found no published Washington decision that has applied the contracts clause to an agency' s internal departure from its position in a prior enforcement action. Indeed, the United States Supreme Court has recognized that agencies Relations Bd. may take v. an " evolutional approach" to their own policy positions. Nat' l Labor 1 Weingarten, Inc., 420 U. S. 251, 265, 95 S. Ct. 959, 43 L. Ed. 2d 171 ( 1975). Here, unlike Silverstreak, L &I did not declare to the public that all franchisees would be exempt from IIA premiums or even that franchisees positioned similarly to Lyons would be exempt from IIA premiums. In short, IFA fails to point to a " law" that impaired Lyons' contracts. 18 No. 45033 -0 -II Even if IFA could characterize L &I' s internal policy shift as a " law" for contracts clause purposes, "[ to be t] he prohibition against any impairment of contracts ` is not an absolute one and is not read with quoting Home literal exactness. "' Bldg. & Loan Ass 'n v. Blaisdell, 290 U.S. 398, 428, 54 S. Ct. 231, 78 L. Ed. 413 Rather, the threshold 1934)). substantial 13 Tyrpakv. Daniels, 124 Wn.2d 146, 151, 874 P. 2d 1374 ( 1994) impairment question of a contractual is " whether the state law has, in fact, operated as a relationship." Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244, 98 S. Ct. 2716, 57 L. Ed. 2d 727 ( 1978). "[ I] mpairment is substantial if [ Lyons] relied on the supplanted part of the contract, and contracting parties are generally deemed to have state relied on existing Wn.2d 653. Yet, " a at law pertaining to interpretation and enforcement." Margola Assocs., 121 party who enters into a contract regarding an activity ` already regulated in the particular to which he now objects' is deemed to have contracted ` subject to further legislation upon the same topic. ' Margola Assocs., 121 Wn.2d at 653 ( quoting Veix v. Sixth Ward Bldg. & Loan Ass 'n ofNewark, 310 U. S. 32, 38, 60 S. Ct. 792, 84 L. Ed. 1061 ( 1940)). Workers compensation insurance is heavily regulated; the scope of the IIA is broad and its provisions are comprehensive. 14 RCW 51. 12. 010; see also generally ch. 51. 12 RCW. The IIA has 13 IFA cites only to cases involving public contracts that involve a different and more stringent standard. Caritas Servs., Inc. v. 1994); Silverstreak, 159 Wn.2d Dep 't of Soc. & at Health Servs., 123 Wn.2d 391, 404, 869 P. 2d 28 890; Margola Assocs., 121 Wn.2d at 653. 14 As IFA points out, the franchising industry is also subject to " onerous" regulation. 19 No. 45033 -0 -II existed since 1911, Laws of 1911, ch. 74, and Lyons should have understood before it entered the business that it could be subject to changing workers compensation regulations. This is especially so because the case law has been far from unanimous on the IIA status of contractors. 15 Compare, e. g., Tacoma Yellow Cab, 31 Wn. App. 117, with Mass. Mut., 51 Wn. App. 159. When Lyons imposed 10 -year contract terms on its franchisees, it did so at the risk that the law could change during those 10 years. We reject IFA' s contracts clause claims. VII. ATTORNEY FEES Lyons argues that it is entitled to an award of attorney fees for this proceeding and the superior court proceeding should it prevail in this action. L &I argues that Lyons is not entitled to attorney fees even if Lyons prevails because L &I' s position was substantially justified.16 We agree with L &I. 15 Amici point out that no published Washington decision has ever determined that franchisees are covered workers of their franchisors. That fact is not as important as amici believe it to be. What matters is the " essence of the work under the independent contract, not the characterization of the parties' Dana' s relationship." 607, 886 P. 2d 1147, laboring under a Dana' s, 76 Wn. review variety App. at of Housekeeping, Inc. v. Dep' t of Labor & denied, 127 Wn.2d 1007 ( 1995). contracts have been found to be 613; Tacoma Yellow Cab, 31 Wn. Indus., 76 Wn. App. 600, As previously described, workers covered under the IIA. See, e. g., App. at 123 - 24. Amici point. to no reason why franchise agreements should be treated any differently from other labor contracts. 16 L &I also argues that Lyons waived attorney fees for the superior court proceeding by failing to request fees before the superior court. But Lyons could not have requested fees there because it did not prevail in that court. 20 No. 45033 -0 -II The " Equal Access to Justice Act" ( EAJA) requires a court to " award a qualified party[171 that prevails in a judicial review of an agency action fees and other expenses, including reasonable attorneys' fees, unless the court finds that the agency action was substantially justified or that circumstances make an award unjust." Here, Lyons has prevailed on the issue RCW 4. 84. 350( 1). of whether those franchisees that had their own subordinates were exempt. The question is whether substantially justified if it quoting Moen v. Spokane administrative context, unjust and still satisfy could L &I' s position a substantially justified. a "` reasonable person. ' satisfy City Police Dep 't, 110 this is was difficult Wn. standard a reasonable person. to App. meet. A position is Silverstreak, 159 Wn.2d at 892 714, 721, 42 P. 3d 456 ( 2002)). In the An agency action may be manifestly Silverstreak, 159 Wn.2d at Even in 889, 892 -93. Massachusetts Mutual, which Lyons relies on, the court concluded that the appeal was not frivolous: "[ covered by w]e have already noted that courts in other jurisdictions have found insurance agents their here, L &I' s involving respective workmen' s compensation statutes." position cannot the intersection be of said to be substantially detailed statutes 51 Wn. unjustified. with somewhat App. at 166. Similarly, This case is highly complex, confused common law. L &I' s position may not have been correct, but it was not untenable. Accordingly, we do not award fees under the EAJA. 17 ac' Qualified party' means ( a) an individual whose net worth did not exceed one million dollars at the time the initial petition for judicial review was filed or (b) a sole owner of an unincorporated business, or a partnership, corporation, association, or organization whose net worth did not exceed five million dollars at the time the initial petition for judicial review was filed, except that an organization described in section 501( c)( 3) of the federal internal revenue code of 1954 as exempt from taxation under section 501( a) of the code and a cooperative association as defined in section 15( a) of the agricultural marketing act ( 12 U. S. C. 1141J( a)), worth of such organization or cooperative association." no dispute that Lyons is qualified. 21 may be a party regardless of the net RCW 4. 84. 340( 5). There appears to be No. 45033 -0 -II We affirm the superior court in part, reverse the superior court in part, and remand to the Board for a determination as to which of Lyons' franchisees employed subordinates to assist in cleaning. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040, it is so ordered. We concur: 22

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