COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
GIPSON'S LTD. T/A THE BOSS RESTAURANT
MEMORANDUM OPINION*
v. Record No. 1679-99-2 PER CURIAM
DECEMBER 7, 1999
KIRK MALACHI PRINCE
AND
UNINSURED EMPLOYER'S FUND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael P. Lafayette; Michael G. Montgomery;
Simon, Lafayette & Associates, on brief), for
appellant.
(Jeremy C. Sharp; Geoffrey R. McDonald &
Associates, on brief), for appellee Kirk
Malachi Prince.
(Mark L. Earley, Attorney General;
Richard L. Walton, Jr., Senior Assistant
Attorney General; Christopher D. Eib,
Assistant Attorney General, on brief), for
appellee Uninsured Employer's Fund.
Gipson's Ltd. t/a The Boss Restaurant, filed a notice of
appeal and contends that the Workers' Compensation Commission
erred in finding that Kirk Malachi Prince was an employee of
Boss rather than an independent contractor. As an appellee, the
Uninsured Employer's Fund similarly urges reversal of the
commission's decision. Upon reviewing the record and the briefs
of the parties, we conclude that this appeal is without merit.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Accordingly, we summarily affirm the commission’s decision. See
Rule 5A:27.
"The [Act] covers employees but not independent
contractors." County of Spotsylvania v. Walker, 25 Va. App.
224, 229, 487 S.E.2d 274, 276 (1997). This distinction must be
determined from the facts of each case, with the burden upon the
person seeking benefits under the Act to prove the relationship
contemplated by the Act. See id. at 229-30, 487 S.E.2d at 276;
see Code § 65.2-101. Although the commission's factual findings
are binding and conclusive on appeal, when they are supported by
credible evidence, see James v. Capitol Steel Constr. Co., 8 Va.
App. 512, 515, 382 S.E.2d 487, 488 (1989), a "[d]etermination of
the relationship involves a mixed question of law and fact which
is reviewable on appeal." County of Spotsylvania, 25 Va. App.
at 230, 487 S.E.2d at 276.
Generally, an individual "'is an employee if he works for
wages or a salary and the person who hires him reserves the
power to fire him and the power to exercise control over the
work to be performed. The power of control is the most
significant indicium of the employment relationship.'"
Behrensen v. Whitaker, 10 Va. App. 364, 367, 392 S.E.2d 508,
509-10 (1990) (quoting Richmond Newspapers, Inc. v. Gill, 224
Va. 92, 98, 294 S.E.2d 840, 843 (1982)); see also Stover v.
Ratliff, 221 Va. 509, 512, 272 S.E.2d 40, 42 (1980).
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[T]he right of control includes not only the
power to specify the result to be attained,
but the power to control "the means and
methods by which the result is to be
accomplished." An employer/employee
relationship exists if the party for whom
the work is to be done has the power to
direct the means and methods by which the
other does the work. "[I]f the latter is
free to adopt such means and methods as he
chooses to accomplish the result, he is not
an employee but an independent contractor."
Intermodal Servs., Inc. v. Smith, 234 Va. 596, 601, 364 S.E.2d
221, 224 (1988) (citations omitted).
In holding that an employee/employer relationship existed
between Prince and Boss, the commission found as follows:
The evidence establishes that the
ultimate power to discharge a particular
security guard rests with Boss rather than
Alexander. In so finding, we rely on
Dance's unrebutted testimony. Boss did not
exercise the right to instruct [Prince] as
to the procedure to use in evicting an
unruly customer, but it appears that it
retained the power to control other major
aspects of the duties performed by [Prince].
It directed [Prince] to wear a side arm and
uniform. It directed [Prince] to perform
such duties as checking identification cards
and placing wrist bands on patrons. These
duties are within the normal scope of the
employer's business. It directed which
customers should be frisked, arrested or
transported to the magistrate. The period
of employment was not limited to the
completion of a certain task but appears to
be open-ended. [Prince] was paid on an
hourly basis and received instructions at
times from Boss managers. We find that the
record establishes the existence of a
master-servant relationship between Boss and
[Prince].
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The commission's findings are amply supported by credible
evidence in the record. The evidence proved that James
Alexander recruited Prince to work for Boss as a part-time
security guard. Alexander also worked for Boss as a security
guard. Although Alexander believed that he was an independent
contractor, no evidence showed that Alexander provided this
service for any other entity. Alexander testified that he
recruits security guards for Boss, coordinates their work
schedules, and decides which security guards will work on a
particular night. However, Boss determined the number of
security guards that would work on any given evening.
Nathan Dance, a manager for Boss, testified that Boss hired
Alexander to manage all security personnel and that Boss
considered the security guards to be independent contractors.
Dance admitted, however, that Alexander had terminated another
security guard at the suggestion of Boss management and that on
occasion Boss managers gave directions to the security guards.
Prince did not complete an employment application and was
paid by Boss on an hourly basis in cash without any deductions
for taxes or social security. Alexander set the work schedule
for Prince, although Prince could decline to work a shift.
Prince believed that Alexander was an employee of Boss, and
Prince worked at the direction of both the senior security
guards and Boss management personnel, who were on duty. If
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Prince was the only security guard on duty, he took instructions
from Boss management.
Boss required that Prince obtain at his own expense and
wear a black military style uniform and carry a handgun. While
on duty, Prince performed various chores at the direction of
Boss employees, including checking identification and ages of
customers, placing wrist bands or a fluorescent ink stamp on
customers, frisking customers for contraband, providing security
in the bar or dance areas, evicting unruly customers, making
arrests, and breaking up fights. Boss also determined, on a
case-by-case basis, which customers would be arrested and taken
before a magistrate.
This evidence supports the commission's findings. Thus,
the commission could reasonably conclude that Boss exercised the
requisite control over Prince to make him its employee.
For these reasons, we affirm the commission's decision.
Affirmed.
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