******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STANDARD OIL OF CONNECTICUT, INC. v.
ADMINISTRATOR, UNEMPLOYMENT
COMPENSATION ACT
(SC 19493)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued October 15, 2015—officially released March 15, 2016
Procedural History
Appeal from the decision of the Employment Security
Appeals Division, Board of Review, upholding the deci-
sion of an appeals referee, which affirmed the determi-
nation of the defendant that certain persons who had
performed services for the plaintiff were the plaintiff’s
employees, brought to the Superior Court in the judicial
district of Fairfield and tried to the court, Hon. Richard
P. Gilardi, judge trial referee, who, exercising the pow-
ers of the Superior Court, rendered judgment dismissing
the plaintiff’s appeal, from which the plaintiff appealed.
Reversed; judgment directed.
Glenn A. Duhl, with whom was Angelica M. Wilson,
for the appellant (plaintiff).
Thomas P. Clifford III, assistant attorney general,
with whom were Krista Dotson O’Brien, assistant attor-
ney general, and, on the brief, George Jepsen, attorney
general, and Phillip M. Schulz, assistant attorney gen-
eral, for the appellee (defendant).
Michael C. Harrington and Jennifer A. Corvo filed
a brief for the Connecticut Business and Industry Asso-
ciation, Inc., as amicus curiae.
Opinion
ZARELLA, J. The plaintiff, Standard Oil of Connecti-
cut, Inc., appeals from the judgment of the trial court
dismissing its appeal from the decision of the Employ-
ment Security Appeals Division, Board of Review
(board). The board denied in part the plaintiff’s motion
to correct findings of fact made by the appeals referee
and concluded that the workers at issue are the plain-
tiff’s employees under the test set forth in the Connecti-
cut Unemployment Compensation Act (act), General
Statutes § 31-222 et seq. On appeal, the plaintiff claims
that the trial court applied the wrong legal standard in
reviewing its motion to correct. The plaintiff also claims
that the trial court improperly concluded that the work-
ers were the plaintiff’s employees under § 31-222 (a)
(1) (B) (ii) because they were subject to the plaintiff’s
control and direction in the performance of their ser-
vices and they performed their services at the plaintiff’s
places of business. The defendant, the Unemployment
Compensation Act Administrator, responds that the
trial court applied the proper legal standard in reviewing
the plaintiff’s motion to correct and properly concluded
that the workers were the plaintiff’s employees under
the test set forth in the act. We reverse the judgment
of the trial court.
The following relevant facts and procedural history
are set forth in the trial court’s memorandum of deci-
sion. ‘‘The plaintiff . . . [is in the business of selling
and delivering home heating oil and also] provides home
heating and alarm systems to residential customers. In
doing so, it utilizes the services of certain individuals
who [clean, service and install] heating/air conditioning
systems or who [install] security systems (installers/
technicians). In June of 2008, the . . . Department of
Labor conducted an audit of the plaintiff. Following the
audit, the [defendant] determined that the installers/
technicians were misclassified as independent contrac-
tors rather than as employees. The [defendant] further
concluded that, due to this misclassification, the plain-
tiff owed $41,501.38 in unemployment contribution
taxes, plus interest, for 2007 and 2008.
‘‘The plaintiff appealed [from] the [defendant’s] deci-
sion to the [appeals referee], who conducted an eviden-
tiary hearing. Following this hearing, the appeals
referee issued a decision with findings of fact, affirming
the [defendant’s] decision. The plaintiff then appealed
to the [board]. The board modified the appeals referee’s
findings of fact and made additional findings in a deci-
sion on March 21, 2012. It determined that the plaintiff
had met part C (General Statutes § 31-222 [a] [1] [B]
[ii] [III]) of the test set out in . . . § 31-222 (a) (1)
(B) (ii) (the ABC test) for determining whether the
installers/technicians were independent contractors,
but also determined that the plaintiff had failed to dem-
onstrate that the installers/technicians were indepen-
dent contractors under part A (General Statutes § 31-
222 [a] [1] [B] [ii] [I]) and part B (General Statutes § 31-
222 [a] [1] [B] [ii] [II]). The plaintiff . . . appeal[ed]
[to the trial court] on April 19, 2012, was granted an
extension of time to file a motion to correct findings
on May 18, 2012, and filed a motion to correct findings
on August 30, 2012. The board issued a decision on the
motion to correct findings on March 4, 2013, granting
the motion in part and denying it in part. The board
maintained its earlier decision as to the plaintiff’s failure
to meet parts A and B.’’
The plaintiff filed claims of error and an appeal with
the trial court. Following oral argument, the court dis-
missed the appeal on March 24, 2014. The court rejected
the plaintiff’s claim seeking to correct the board’s fac-
tual findings and upheld the board’s determination that
the plaintiff had failed to satisfy parts A and B of the
ABC test. This appeal followed.
Section 31-222 (a) (1) (B) (ii) defines ‘‘employment’’
in relevant part as any service performed by ‘‘any indi-
vidual who, under either common law rules applicable
in determining the employer-employee relationship or
under the provisions of this subsection, has the status
of an employee. Service performed by an individual
shall be deemed to be employment subject to this chap-
ter irrespective of whether the common law relation-
ship of master and servant exists, unless and until it is
shown to the satisfaction of the administrator that (I)
such individual has been and will continue to be free
from control and direction in connection with the per-
formance of such service, both under his contract for
the performance of service and in fact; and (II) such
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 (III)
such individual is customarily engaged in an indepen-
dently established trade, occupation, profession or busi-
ness of the same nature as that involved in the service
performed . . . .’’ Because the provision is in the con-
junctive, the party claiming the exception to the rule
that the service is employment must show that all three
prongs of the test have been satisfied. E.g., JSF Promo-
tions, Inc. v. Administrator, Unemployment Compen-
sation Act, 265 Conn. 413, 419, 828 A.2d 609 (2003).
‘‘[W]hen interpreting provisions of the act, we take
as our starting point the fact that the act is remedial and,
consequently, should be liberally construed in favor of
its beneficiaries. . . . Indeed, the legislature under-
scored its intent by expressly mandating that the act
shall be construed, interpreted and administered in
such manner as to presume coverage, eligibility and
nondisqualification in doubtful cases. General Statutes
§ 31-274 (c).’’ (Internal quotation marks omitted.) Tuxis
Ohr’s Fuel, Inc. v. Administrator, Unemployment
Compensation Act, 309 Conn. 412, 423, 72 A.3d 13
(2013). We also note that ‘‘exemptions to statutes are
to be strictly construed.’’ Daw’s Critical Care Registry,
Inc. v. Dept. of Labor, 42 Conn. Supp. 376, 389, 622 A.2d
622 (1992), aff’d, 225 Conn. 99, 622 A.2d 518 (1993).
Nevertheless, the act ‘‘should not be construed unrealis-
tically in order to distort its purpose.’’ F.A.S. Interna-
tional, Inc. v. Reilly, 179 Conn. 507, 516, 427 A.2d 392
(1980). ‘‘While it may be difficult for a situation to exist
where an employer sustains his burden of proof under
the ABC test . . . it is important to consider that [t]he
exemption [under the act] becomes meaningless if it
does not exempt anything from the statutory provisions
. . . where the law and the facts merit the exemption
in a given case.’’ (Citation omitted; internal quotation
marks omitted.) Daw’s Critical Care Registry, Inc. v.
Dept. of Labor, supra, 389–90. Rather, ‘‘statutes are to
be construed so that they carry out the intent of the
legislature. . . . We must construe the act as we find
it . . . .’’ (Citations omitted; internal quotation marks
omitted.) Johnson v. Manson, 196 Conn. 309, 314–15,
493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S.
Ct. 813, 88 L. Ed. 2d 787 (1986).
Having conducted a comprehensive review of the
board’s modified findings of fact, we conclude that the
trial court improperly determined that the installers/
technicians were the plaintiff’s employees under the
first two prongs of the ABC test.1
I
We begin with the plaintiff’s claim that the installers/
technicians were free from its control and direction
under part A of the ABC test. The plaintiff contends
that the uncontroverted evidence establishes that the
installers/technicians retained control and direction
over the method and means of their work. The defen-
dant responds that the installers/technicians performed
their work subject to the plaintiff’s control and direc-
tion. We agree with the plaintiff.
The following additional facts are relevant to our
resolution of this claim. Although the board modified
its findings of fact2 following a review of the plaintiff’s
motion to correct, it did not alter its earlier conclusion
that the plaintiff had failed to satisfy part A of the ABC
test. Thereafter, in upholding the board’s conclusion,
the trial court noted the board’s findings that ‘‘the plain-
tiff advertises installed heating, cooling, and security
systems; it makes appointments with customers, then
finds an installer or technician who can take the assign-
ment; it does not permit installers or technicians to
subcontract; it encourages them to wear apparel bear-
ing the plaintiff’s name; it can send an installer or techni-
cian back to correct a deficient installation; it pays the
installers or technicians a set rate per piece; and it
requires them to submit payment invoices no later than
the Friday after they complete the work. The board
stated that five installers/technicians [indicated] that
the plaintiff has the right to direct how they perform
their work in a questionnaire. The board did not credit
later statements by two of the installers/technicians that
the plaintiff did not have [that] right. The board also
stated that the installers can only install equipment
provided by the plaintiff and that the technicians use
nozzles, filters, and strainers which are provided by the
plaintiff for cleaning oil burners. In addition, the board
also initially listed the right to terminate without liability
as a strong indication of an employer-employee relation-
ship, but, in its decision on the plaintiff’s motion to
correct findings, removed this as a factor, amending
finding [nineteen] to say that the parties stipulated that
right to fire would not be a factor.’’
The court further observed, however, that the board
had acknowledged certain factors indicating that ‘‘the
plaintiff did not exercise control and direction. These
included that the installers/technicians signed indepen-
dent contractor agreements stating they would exercise
independence; that they were free to accept or reject
assignments, [could] determine the days on which they
[would] work, [were] not supervised while performing
their work; that the plaintiff [did] not check on their
work; that they [were] licensed and certified, that the
plaintiff [did] not provide them with an employee hand-
book and [did] not pay them for training or require
training; that the installers/technicians [could] hire
employees to assist them and [were] free to supervise
their employees; that the installers/technicians [could]
realize a profit or a loss; and that they provide[d] their
own tools, transportation, and insurance.’’ The court
nonetheless concluded that, although the plaintiff had
made a ‘‘compelling case’’ that it lacked control and
direction, the court was ‘‘not convinced that the board
lack[ed] substantial evidence for its decision.’’
We begin by setting forth the standard of review. It
is well established that ‘‘[r]eview of an administrative
agency decision requires a court to determine whether
there is substantial evidence in the administrative
record to support the agency’s findings of basic fact
and whether the conclusions drawn from those facts
are reasonable. . . . Neither this court nor the trial
court may retry the case or substitute its own judgment
for that of the administrative agency on the weight of
the evidence or questions of fact. . . . Our ultimate
duty is to determine, in view of all of the evidence,
whether the agency, in issuing its order, acted unreason-
ably, arbitrarily, illegally or in abuse of its discretion.
. . . [A]n agency’s factual and discretionary determina-
tions are to be accorded considerable weight by the
courts.’’ (Citation omitted; internal quotation marks
omitted.) JSF Promotions, Inc. v. Administrator,
Unemployment Compensation Act, supra, 265 Conn.
417–18.
With respect to the governing legal principles, we
have stated that ‘‘[t]he fundamental distinction between
an employee and an independent contractor depends
upon the existence or nonexistence of the right to con-
trol the means and methods of work. . . . The test of
the relationship is the right to control. It is not the fact
of actual interference with the control, but the right to
interfere, that makes the difference between an inde-
pendent contractor and a servant or agent. . . . An
employer-employee relationship does not depend upon
the actual exercise of the right to control. The right to
control is sufficient. . . . The decisive test is who has
the right to direct what shall be done and when and
how it shall be done? Who has the right of general
control?’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) Latimer v. Administrator,
Unemployment Compensation Act, 216 Conn. 237, 248,
579 A.2d 497 (1990). Under this test, we have stated that
‘‘[a]n independent contractor is one who, exercising an
independent employment, contracts to do a piece of
work according to his own methods and without being
subject to the control of his or her employer, except
as to the result of his work.’’ (Internal quotation marks
omitted.) Darling v. Burrone Bros., Inc., 162 Conn. 187,
195, 292 A.2d 912 (1972); accord Alexander v. R. A.
Sherman’s Sons Co., 86 Conn. 292, 297, 85 A. 514 (1912).
The plaintiff bears the burden of showing that the work-
ers hired as independent contractors ‘‘[have] been and
will continue to be free from control and direction in
connection with the performance of . . . service[s],
both under [their] contract for the performance of ser-
vice[s] and in fact . . . .’’ (Internal quotation marks
omitted.) JSF Promotions, Inc. v. Administrator,
Unemployment Compensation Act, supra, 265 Conn.
418.
Part A of the ABC test provides that ‘‘[s]ervice per-
formed by an individual shall be deemed to be employ-
ment . . . unless and until it is shown to the
satisfaction of the administrator that . . . such individ-
ual has been and will continue to be free from control
and direction in connection with the performance of
such service, both under his contract for the perfor-
mance of service and in fact . . . .’’ General Statutes
§ 31-222 (a) (1) (B) (ii) (I). Although the meaning of this
language may seem clear, past agency interpretations of
part A have been highly fact specific and not uniformly
upheld on appeal to the Superior Court. See JSF Promo-
tions, Inc. v. Administrator, Unemployment Compen-
sation Act, Superior Court, judicial district of Hartford,
Docket No. CV-97-0575801 (April 2, 2002) (reversing
board’s decision that product demonstrators hired to
work at supermarkets were under plaintiff’s control
and direction), rev’d, 265 Conn. 413, 828 A.2d 609 (2003);
Daw’s Critical Care Registry, Inc. v. Dept. of Labor,
supra, 42 Conn. Supp. 384–85, 412 (reversing board’s
decision that nurses hired to work at health-care facili-
ties and hospitals on as needed basis were under plain-
tiff’s control and direction). Accordingly, we seek guid-
ance from several appellate decisions in which this
court and the Superior Court3 discussed the conditions
necessary to satisfy part A of the ABC test.
We initially addressed the issue of control and direc-
tion in F.A.S. International, Inc. v. Reilly, supra, 179
Conn. 507. In that case, we concluded that the trial
court properly had sustained the plaintiff’s appeal from
the administrator’s determination that the professional
artists, writers and photographers employed in the
plaintiff’s correspondence schools to analyze and cri-
tique students’ lessons were employees of the plaintiff
rather than independent contractors. See id., 513, 516.
We explained that the professionals ‘‘employed differ-
ent techniques or approaches in their criticism and anal-
ysis of student work. The plaintiff’s only concern was
with the result or end product of their efforts. [The
plaintiff] exercised no control over the means and
method of their performance. Although it is true, as
claimed by the administrator, that [the plaintiff] would
not permit its professionals to hire others to evaluate
student work which had been given to them for review,
this prohibition is not significant because contracts for
personal services cannot be assigned without consent.
. . . It is obvious that [the plaintiff] depended upon the
skill and reputation of the artists, writers and photogra-
phers it selected to produce a product of quality. The
[plaintiff] did not rely on rote correction of objective
examinations.’’4 (Citation omitted.) Id., 513.
We next considered the issue of control and direction
in Latimer. See Latimer v. Administrator, Unemploy-
ment Compensation Act, supra, 216 Conn. 247–49.
Unlike in F.A.S. International, Inc., we concluded in
Latimer that the trial court properly had sustained the
administrator’s determination that several personal
care aides placed in the plaintiff’s home by the Litchfield
Hills Nurses Registry (registry) were the plaintiff’s
employees rather than independent contractors, in part
because the plaintiff had failed to show that the aides
were free from the plaintiff’s control and direction. Id.,
243–44, 252. We specifically concluded that among the
factors militating in favor of finding control and direc-
tion were that the plaintiff retained the right to dis-
charge any aide without liability, although this factor
was not considered conclusive, paid aides an hourly
rate, established the hours when the aides were to work
after the aides made known their hours of availability,
directed the aides to perform personal errands and to
be cognizant of instructions concerning the plaintiff’s
care, expected the services to be rendered personally
by particular aides selected by the registry on the basis
of the plaintiff’s needs and instructions conveyed to the
registry, and furnished the equipment and materials
required for the aides to perform their work. See id.,
249–50. We also noted that the aides did not realize a
profit or suffer a loss based on the services they ren-
dered. Id., 250. Even more important than the foregoing
factors, however, was that the aides reported their daily
activities to the plaintiff’s attorney, to whom the plain-
tiff had granted a general power of attorney, and that the
attorney personally monitored the level of care given to
the plaintiff. Id. We explained that this finding embodied
‘‘the logical inference that the reporting and monitoring
had a purpose and that, if the care given [to] the plaintiff
[had been] unsatisfactory, [the attorney] could, and
would, intervene and take corrective measures. That
right of intervention . . . evinces a right to control and
direct the [aides] by the recipient of their services.’’ Id.,
251. We added that ‘‘[t]he fact that the [aides] placed
with the plaintiff by the registry signed an agreement
that they were independent contractors [was] of no
moment. Language in a contract that characterizes an
individual as an independent contractor [rather than an
employee] is not controlling. The primary concern is
what is done under the contract and not what it says.
. . . Such provisions in a contract are not effective to
keep an employer outside the purview of the act when
the established facts bring [the employer] within it. We
look beyond the plain language of the contract to the
actual status in which the parties are placed.’’ (Citations
omitted; internal quotation marks omitted.) Id., 251–52.
Shortly thereafter, in Stone Hill Remodeling v.
Administrator, Unemployment Compensation Act,
Superior Court, judicial district of Waterbury, Docket
No. 089398 (February 21, 1991) (3 Conn. L. Rptr. 829),
the Superior Court cited Latimer in concluding that
the administrator reasonably could have found that a
worker who performed plumbing, electrical, carpentry
and siding work at a construction site for the plaintiff,
who was a home improvement contractor, was under
the plaintiff’s general control and direction, at least with
respect to the carpentry work that he had performed
for the plaintiff. Id., 830. The court cited the board’s
findings that the worker ‘‘at times work[ed] side by side
with the [plaintiff on the carpentry work]. The [plaintiff]
furnished the worker with tools and materials, indicat-
ing an element of control . . . . The carpentry work
performed by the [worker] was under the supervision
of the [plaintiff].’’ Id., 829. The plaintiff thus failed to
sustain its burden of demonstrating that the worker
was free from its control and direction. See id., 830.
Stone Hill Remodeling was followed by Daw’s Criti-
cal Care Registry, Inc. v. Dept. of Labor, supra, 42 Conn.
Supp. 376, whose reasoning we adopted one year later
in upholding that decision. See Daw’s Critical Care
Registry, Inc. v. Dept. of Labor, supra, 225 Conn. 102
(‘‘we adopt the trial court’s well reasoned decision as
a statement of the facts and the applicable law on [the]
issue [of the employer-employee relationship under the
ABC test]’’). In Daw’s Critical Care Registry, Inc., the
Superior Court relied heavily on the factors discussed
in Latimer in reversing the decision of the Employment
Security Division of the Department of Labor that
nurses hired by the plaintiff to work at health-care facili-
ties and hospitals on an as needed basis and at an hourly
rate were the plaintiff’s employees under the first prong
of the ABC test. Daw’s Critical Care Registry, Inc.
v. Dept. of Labor, supra, 42 Conn. Supp. 378, 384–85,
393–400. In concluding that the nurses in that case were
not under the plaintiff’s control and direction, the court
relied on almost all of the factors we identified in Lati-
mer. See id., 393–400. The court noted that, although the
plaintiff retained the right to terminate an assignment
without liability, other factors, including a lack of con-
trol and direction over the means and methods of the
nurses’ work at the medical facilities, meaning the right
to direct what should be done and when and how it
should be done, were more important. Id., 393–94. The
court stated that ‘‘[the plaintiff’s] function, after satis-
fying itself that a nurse was competent, was fairly lim-
ited to arranging times mutually convenient for the
nurse and the particular medical facility where the
nurse’s services were to be rendered and examining a
nurse’s pay invoices when submitted to it for payment
and in making payment. . . . Once the assignment to
a particular medical facility was offered by [the plaintiff]
and undertaken by . . . [the] nurse, the nurse went
there and, subject to the protocol of that facility, ren-
dered her professional services under that facility’s
direction. The . . . nurses could trade shifts after an
assignment at a medical facility that [the plaintiff] ser-
viced. This was done without the nurse being required
to report such shift trades to [the plaintiff] . . . .’’ (Cita-
tion omitted; footnote omitted; internal quotation marks
omitted.) Id., 394–95. Furthermore, unlike in Latimer,
the plaintiff did not establish the hours when the nurses
were to work and did not furnish the tools, equipment
or materials necessary to do their job. See id., 395. In
addition, the plaintiff did not send a representative to
visit the medical facility to check on the nurses’ work,
did not conduct orientations for the nurses and did not
issue the nurses a manual of instructions. Id., 396. Also
weighing in favor of the plaintiff were that the name
tags the nurses were required to wear in some facilities
were not required by the plaintiff but by the facilities
in which they worked. Id., 397.
The court acknowledged that other factors tended
to indicate control and direction, including that the
nurses submitted payment invoices to the plaintiff indi-
cating the time and location of their work, the invoices
were on forms provided by the plaintiff, the times indi-
cated on the invoice forms needed to be certified by
the facility before being processed by the plaintiff, and
the nurses were paid at an hourly rate. Id. The court
determined, however, that the manner of remuneration
was ‘‘ ‘not decisive or controlling’ ’’ because of the ‘‘real-
ity’’ that the plaintiff ‘‘served in the nature of [a] conduit
for payment.’’ Id., 398. The court finally observed, citing
Latimer, that the characterization of the nurses in their
employment agreement with the plaintiff as indepen-
dent contractors who were not subject to the plaintiff’s
control and direction was ‘‘entitled to some consider-
ation . . . .’’ Id., 399.
This court again considered the issue of control and
direction in Tianti v. William Raveis Real Estate, Inc.,
231 Conn. 690, 651 A.2d 1286 (1995). Although the plain-
tiff in Tianti brought the action pursuant to General
Statutes § 31-725 on behalf of two real estate salesper-
sons seeking to collect unpaid wages from the defen-
dant, and not in the context of unemployment
compensation; see id., 691–92; we stated that the ABC
test was applicable in determining the existence of an
employment relationship between the salespersons and
the defendant. Id., 697. We then concluded that the
defendant had the right to control its salespersons on
the basis of findings that they ‘‘were required to attend
mandatory office meetings . . . did business under the
defendant’s name . . . used the company letterhead,
business cards and supplies . . . were required to
attend training sessions . . . and . . . were threat-
ened with discharge if they did not comply with these
requirements. The right to terminate [an employment]
relationship without liability is not consistent with the
concept of an independent contract. . . . [One of the
salespersons also] was required to put in specified
hours of floor time and [the other salesperson] was
required to work forty hours per week plus put in an
office appearance on weekends.’’ (Citation omitted;
internal quotation marks omitted.) Id., 698; see also
AAD Vantage of South Central Connecticut, Inc. v.
Administrator, Unemployment Compensation Act,
Superior Court, judicial district of New Haven, Docket
No. CV-96-0382334 (September 16, 1998) (plaintiff exer-
cised right to control salespersons because it provided
them with equipment or materials necessary to perform
job, including business cards, order forms, desk space
and telephone service, plaintiff provided training prior
to assigning territory to salespersons, plaintiff con-
ducted sales meetings and provided salespersons with
customer lists, plaintiff’s income was dependent on
salespersons securing sales, commissions were set by
plaintiff according to fee structure it established, com-
missions were not paid until salespersons’ clients paid
plaintiff, salespersons could not bind plaintiff in con-
tract or agreement without plaintiff’s approval, sales-
persons were required to utilize plaintiff’s order forms
and submit forms to plaintiff, salespersons were not
authorized to collect money from clients they secured,
and, most important, plaintiff retained right to terminate
salesperson who did not use best efforts to secure cus-
tomers and could establish criteria to determine what
constituted salesperson’s best efforts).
The Superior Court addressed the issue more recently
in JSF Promotions, Inc. v. Administrator, Unemploy-
ment Compensation Act, supra, Superior Court, Docket
No. CV-97-0575801. In reversing the board’s decision
and concluding that product demonstrators hired to
work at supermarkets were not the plaintiff’s employ-
ees, the court cited Daw’s Critical Care Registry, Inc.,
for the proposition that, because the plaintiff had served
‘‘as a mere conduit of information to enable the demon-
strator to know what service to provide, what products
were to be demonstrated, what equipment the demon-
strator had to supply, where and what time the demon-
strations were to be performed . . . [e]ven ‘quality
control’ of the demonstrations was out of the plaintiff’s
hands—in that regard, it took its orders from the super-
market, which would make the judgment whether a
particular demonstrator’s work was satisfactory or
not.’’ Id. The court also observed that the demonstra-
tor’s contract allowed the demonstrator to assign work
to be performed to other qualified demonstrators with
notice to the plaintiff, which plainly meant that ‘‘the
plaintiff [did] not even retain control over who [would]
perform the demonstration service on any given job.’’
(Emphasis in original.) Id.
Applying the foregoing principles, we conclude that
the board’s modified findings of fact did not reasonably
support its conclusion that the plaintiff in the present
case had the right to control the means and methods of
the work performed by the installers/technicians during
the years in question.6 The plaintiff did not own or
operate the tools, machinery or heavy duty vehicles
required for the installation of heating systems, tank
removal or home alarm installation. It thus contracted
with the installers/technicians, who were licensed and
certified to perform their services in accordance with
state law and who routinely performed such work for
their own businesses or through self-employment. The
contracts between the plaintiff and the installers/techni-
cians provided that the installers/technicians shall exer-
cise independent judgment and control in the execution
of any work they conduct for the plaintiff. See Daw’s
Critical Care Registry, Inc. v. Dept. of Labor, supra, 42
Conn. Supp. 399 (plaintiff’s characterization of nurses in
employment agreement between them as not subject
to plaintiff’s control and direction was ‘‘entitled to some
consideration,’’ although not controlling). Consistent
with this contract provision, the plaintiff did not super-
vise the installers/technicians and did not inspect their
work. In fact, there was no representative of the plaintiff
on a customer’s premises at any time during an installa-
tion project, either while it was in progress or upon its
completion. The same was true for the technicians.
See id., 394–96 (rendering of nurses’ services under
facilities’ direction and plaintiff’s practice of not send-
ing representative to check on nurses’ work indicated
absence of control and direction); cf. Latimer v.
Administrator, Unemployment Compensation Act,
supra, 216 Conn. 250–51 (reporting by personal care
assistants of daily activities to plaintiff’s attorney, who
personally monitored level of care given to plaintiff,
indicated control and direction).
In addition, the installers/technicians were free to
accept or reject any assignment offered to them without
adverse consequences. Although an assignment, once
accepted, had to be performed within a designated time-
frame set by the plaintiff and the customer, the install-
ers/technicians chose the days on which it was con-
venient for them to work. See Daw’s Critical Care
Registry, Inc. v. Dept. of Labor, supra, 42 Conn. Supp.
394–95 (arranging times mutually convenient for nurses
and medical facilities instead of establishing hours
when nurses must work indicated absence of control
and direction); cf. Tianti v. William Raveis Real Estate,
Inc., supra, 231 Conn. 698 (requiring salespersons to
work specified hours indicated control and direction);
Latimer v. Administrator, Unemployment Compensa-
tion Act, supra, 216 Conn. 250 (establishing hours when
personal care assistants must work after they made
hours of availability known to plaintiff indicated control
and direction). Each of the installers/technicians also
had an independent business that provided the same
type of services that they provided for the plaintiff. As
a consequence, many installers/technicians had their
own business cards, advertised their businesses and
earned an undetermined amount of their income from
sources other than the plaintiff.
Furthermore, after an assignment was accepted, the
installers/technicians used their own equipment and
tools to complete each project. See Daw’s Critical Care
Registry, Inc. v. Dept. of Labor, supra, 42 Conn. Supp.
395 (failing to furnish tools, equipment or materials
necessary for nurses to perform their work indicated
absence of control and direction); cf. Tianti v. William
Raveis Real Estate, Inc., supra, 231 Conn. 698 (furnish-
ing equipment or materials to perform work indicated
control and direction); Latimer v. Administrator,
Unemployment Compensation Act, supra, 216 Conn.
250 (same). Although the installers/technicians were
required to provide their services personally and were
not permitted to subcontract or hire casual, pickup or
day laborers, they could hire assistants to help them
perform their work and could supervise the assistants
as they saw fit. See Daw’s Critical Care Registry, Inc.
v. Dept. of Labor, supra, 42 Conn. Supp. 394–95 (nurses’
practice of trading shifts following assignment to facil-
ity without being required to report trades to plaintiff
indicated absence of control and direction). Complaints
regarding installation or other technical services and
problems that arose during the warranty period origi-
nated with the customers and were referred to the plain-
tiff, who served as a conduit in reporting them to the
installers/technicians and arranged for repairs or for
payments by the installers/technicians to cover the cost
of repairs by others. Cf. Latimer v. Administrator,
Unemployment Compensation Act, supra, 250–51
(direct monitoring by plaintiff’s attorney of care given
to plaintiff indicated control and direction).
On matters of training and attire, the plaintiff did
not provide the installers/technicians with an employee
handbook and did not pay for their training or require
any specific training relating to its products. Installers
were encouraged, but not required, to display the plain-
tiff’s name on their clothing and utility vehicles. Security
system installers were required to display photographic
identification badges that described them as subcon-
tractors, not as the plaintiff’s employees. The plaintiff
provided the installers/technicians with shirts and hats
labeled ‘‘Standard Oil,’’ but only because wearing these
items might alleviate customer concern or confusion
when the installers/technicians appeared at a custom-
er’s residence. Wearing the clothing was not required.
See Daw’s Critical Care Registry, Inc. v. Dept. of Labor,
supra, 42 Conn. Supp. 396–97 (failing to conduct orien-
tation for nurses or to require name tags while nurses
worked at facilities indicated absence of control and
direction); cf. Tianti v. William Raveis Real Estate,
Inc., supra, 231 Conn. 698 (requiring salespersons to
attend training sessions and to use company letterhead
and business cards indicated control and direction).
The installers/technicians received compensation on
the basis of a set rate per piece of work, rather than
an hourly rate, could realize a profit or loss from the
services rendered, and paid for their own transportation
without reimbursement by the plaintiff. Cf. Latimer
v. Administrator, Unemployment Compensation Act,
supra, 216 Conn. 250 (paying personal care assistants
hourly rate and fact that they did not realize profit or
suffer loss based on services indicated control and
direction).
Although the installers/technicians remitted invoices
to the plaintiff, we do not agree with the court in Daw’s
Critical Care Registry, Inc., that this is indicative of
control and direction. It is independent contractors,
rather than employees, who typically submit invoices
for their work. Neither the legal nor the ordinary defini-
tion of the term suggests that an employee is paid on
the basis of an invoice. See Black’s Law Dictionary (10th
Ed. 2014) p. 956 (defining ‘‘invoice’’ as ‘‘[a]n itemized list
of goods or services furnished by a seller to a buyer,
usu[ally] specifying the price and terms of sale; a bill of
costs’’); Webster’s Third New International Dictionary
(2002) p. 1190 (‘‘an itemized statement furnished to a
purchaser by a seller and usu[ally] specifying the price
of goods or services and the terms of sale’’). Moreover,
references in Connecticut case law to the payment of
invoices consistently appear in connection with pay-
ments made to contractors rather than to employees.
See, e.g., Campisano v. Nardi, 212 Conn. 282, 286, 562
A.2d 1 (1989) (referring to money applied to payment
of subcontractors based on invoices submitted and
shown to plaintiffs); Ray Weiner, LLC v. Connery, 146
Conn. App. 1, 4, 75 A.3d 771 (2013) (referring to
‘‘invoices and moneys charged by subcontractors’’);
D’Angelo Development & Construction Corp. v. Cordo-
vano, 121 Conn. App. 165, 189, 995 A.2d 79 (referring
to invoices substantiating amounts claimed to be owed
to subcontractors), cert. denied, 297 Conn. 923, 998
A.2d 167 (2010). The submission of invoices in this
case is therefore indicative of the absence of control
and direction.
We acknowledge the board’s finding that five install-
ers/technicians indicated in a questionnaire that the
plaintiff had the right to direct how they performed their
work. Although the board did not credit subsequent
testimony by two of the five installers/technicians that
the plaintiff had no such right, the statements in the
questionnaires do not outweigh the board’s numerous
other findings in support of the conclusion that the
plaintiff did not exercise control and direction over the
installers/technicians.
The defendant argues that the plaintiff made arrange-
ments with its customers regarding all of the installa-
tions and services, scheduled installation and service
appointments with its customers and, in the event the
installers/technicians accepted assignments, required
them to perform their work within a designated time-
frame set by the plaintiff and its customers. This argu-
ment, however, ignores the board’s finding that the
installers/technicians could accept or reject assign-
ments simply on the basis of convenience and, as a
consequence, had full control over how much work
they did and when they did it. See Daw’s Critical Care
Registry, Inc. v. Dept. of Labor, supra, 42 Conn. Supp.
394 (plaintiff had no control over nurse’s assignment
because plaintiff’s function, ‘‘after satisfying itself that
a nurse was ‘competent,’ was fairly limited to arranging
times mutually convenient for the nurse and the particu-
lar medical facility [at which] the nurse’s services were
to be rendered’’); cf. Latimer v. Administrator, Unem-
ployment Compensation Act, supra, 216 Conn. 250
(plaintiff had control over personal care assistants
because ‘‘[they] made known their hours of availability,
[and] the plaintiff . . . established the hours when they
were to work’’).
The defendant also refers to evidence that the install-
ers/technicians were limited to providing the installa-
tion or service they were sent by the plaintiff to perform,
were not allowed to perform additional services without
permission or direction from the plaintiff, and were
required to perform the services personally insofar as
they were not permitted to subcontract or use casual,
pickup or day laborers when working in customers’
homes. We disagree that these findings constitute evi-
dence of control and direction. The fact that the install-
ers/technicians were limited to performing only those
services they were sent to perform and were not permit-
ted to provide additional services without the plaintiff’s
permission has no bearing on whether the plaintiff exer-
cised control and direction over the manner in which
they performed the services they were contracted to
perform. The contracts between the plaintiff and the
installers/technicians defined their legal relationship,
and it is the work that was required under the contrac-
tual relationship that must be examined to determine
whether the installers/technicians were employees or
independent contractors under the act. As for the plain-
tiff’s restriction on the use of subcontractors or possibly
unqualified workers to assist in performing the work,
this restriction was more than overcome by the board’s
related finding that the installers/technicians were free
to hire other presumably qualified workers to assist
them in completing the project and could supervise
these workers as they saw fit. Thus, given that the
plaintiff never visited its customers’ homes, it very likely
never knew when the installers/technicians hired assis-
tants or what the assistants did.
The defendant finally contends that the plaintiff sup-
plied the installers/technicians with the means to do
their work because the plaintiff determined the equip-
ment to be installed for each project, required the
installer to use parts supplied by the plaintiff, replaced
some of the parts provided by the installers/technicians
or reimbursed them for the parts. These parts included
nozzles and strainers provided to the installers/techni-
cians who serviced customers lacking heat or who
needed their furnaces cleaned, and wires and ‘‘every-
thing down to the screws’’ provided to security system
installers. We do not agree that these facts constitute
evidence of control and direction. The defendant blurs
the line between the product that requires installation
and the tools and equipment necessary to perform the
installation. The board specifically found that the
installers used their own equipment and tools to com-
plete each project and that the installer did not pay for
the product to be installed, which was provided by the
plaintiff. The same was true for the technicians. Thus,
insofar as the plaintiff supplied specialized parts such
as nozzles and strainers in the case of heating equip-
ment, or the special wires and screws required for the
installation of security systems, those parts were more
accurately understood as part of the product, especially
in the case of security systems that required special
wiring. The only exception appears to be the piping,
tubing, fittings and cement necessary for boiler installa-
tion, which the board found were supplied by the
boiler installers.
In sum, the defendant focuses on almost everything
except the board’s findings regarding the relevant provi-
sions of the contract agreements between the plaintiff
and the installers/technicians, and the means and meth-
ods used by the installers/technicians in performing
their actual work. With respect to the former, the con-
tract agreement provided that the installers/technicians
‘‘shall at all times exercise independent judgment and
control in the execution of any work, job or project
they accept.’’ With respect to the latter, the board found
that the installers/technicians, who were licensed and
certified in accordance with state law, were not trained
by the plaintiff. In addition, they did not operate under
an instruction manual provided by the plaintiff, they
were not supervised by the plaintiff at the customers’
homes, their work was not inspected by the plaintiff,
there was no representative of the plaintiff on the cus-
tomers’ premises at any time during the installation
projects, either while they were in progress or upon
their completion, they were free to accept or reject any
assignment and thus could choose the days on which
they worked, they were paid on the basis of a set rate
per project, they could realize a profit or loss depending
on the difficulty of the particular job, they used their
own equipment and tools to complete each project, and
they were permitted to hire assistants whom they could
supervise. Although the plaintiff imposed certain limita-
tions on the installers/technicians, these limitations did
not affect the manner in which they performed their
work at the homes of the plaintiff’s customers. In fact,
the installers/technicians appeared to be in full control
of their work at the customers’ homes, and, to the extent
the installers/technicians were monitored, they were
not monitored by the plaintiff but by the customers,
who were responsible for informing the plaintiff regard-
ing any problems that arose in connection with an instal-
lation. Accordingly, we conclude that the plaintiff
satisfied its burden of showing that the installers/techni-
cians were free from its control and direction under
part A of the ABC test.7
II
The plaintiff next claims that the trial court improp-
erly interpreted the term ‘‘places of business’’ under
part B of the ABC test. The plaintiff specifically con-
tends that the trial court’s interpretation of the phrase
as including the sites of service, that is, the homes
of its residential customers, was unreasonably broad,
inconsistent with the purpose of the act, and would
have the practical effect of preventing the plaintiff or
any other Connecticut business from ever utilizing the
services of an independent contractor. The defendant
responds that the court properly agreed with the board
that the plaintiff’s place of business was not only the
plaintiff’s office, but the individual homes at which the
plaintiff contracted to provide services to its customers.
We agree with the plaintiff.
The following additional facts are relevant to our
resolution of this claim. In concluding that the services
of the installers/technicians were not performed outside
the plaintiff’s places of business, the board explained:
‘‘The [plaintiff] contracts directly with its customers to
provide installation of its heating and cooling equipment
and security systems in the customers’ homes and to
continue to service the equipment and monitor the secu-
rity systems. . . . [T]he [plaintiff’s] customer’s homes
have, by contract, become places of business of the
[plaintiff] for purposes of part B of the ABC test. . . .
[T]he [installers/technicians] represent the [plaintiff’s]
interest[s] when they are in the homes of the [plaintiff’s]
customers, and the [plaintiff] profits from the services
that are performed in its customers’ homes. . . . [T]he
[plaintiff] does not merely broker contractor services
but, rather, offers installation and servicing of heating
and cooling equipment and security systems to the pub-
lic. Moreover . . . the [plaintiff] contracts directly with
the customers whose homes are the situs for the install-
ers’ and technicians’ services.’’
In responding to the plaintiff’s claim that it would be
impossible to utilize the services of an independent
contractor under the board’s interpretation of part B,
the board further explained: ‘‘[T]he [plaintiff] advertises
and sells installed heating and cooling equipment and
security systems. It rarely sells equipment without also
selling the installation of that equipment. Moreover, the
[plaintiff] has long-term contracts with its customers
to service its heating and cooling equipment and moni-
tor its security systems. Therefore . . . the [plaintiff]
. . . conducts an integral part of its business in [the]
customers’ homes.’’
Following a review of the board’s decision, the trial
court examined the case law of other jurisdictions and
concluded that ‘‘the board properly determined that the
customers’ locations were . . . place[s] of business of
the plaintiff. The plaintiff engages the installers/[techni-
cians] to perform certain tasks as part of a continuing
provision of services at the customers’ locations. Some
of these tasks overlap with those performed by employ-
ees. Others are performed predominantly, and possibly
exclusively, by putative independent contractors, but,
nonetheless, the tasks are part of ongoing activity at
the [customers’] location[s].’’ (Emphasis omitted.)
Whether the homes of the plaintiff’s customers are
‘‘places of business’’ within the meaning of § 31-222 (a)
(1) (B) (ii) (II) presents an issue of statutory interpreta-
tion. ‘‘The proper construction of this statute is a ques-
tion of law over which we exercise plenary review. . . .
When interpreting a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . The meaning of a statute shall,
in the first instance, be ascertained from the text of the
statute itself and its relationship to other statutes. If,
after examining such text and considering such relation-
ship, the meaning of such text is plain and unambiguous
and does not yield absurd or unworkable results, extra-
textual evidence of the meaning of the statute shall not
be considered. General Statutes § 1-2z. . . . However,
[w]hen a statute is not plain and unambiguous, we also
look for interpretive guidance to the legislative history
and circumstances surrounding its enactment, to the
legislative policy it was designed to implement, and to
its relationship to existing legislation and common law
principles governing the same general subject matter
. . . . A statute is ambiguous if, when read in context,
it is susceptible to more than one reasonable interpreta-
tion. . . .
‘‘We recently have elaborated on the role of agency
interpretations in cases involving questions of statutory
construction. In such cases, the traditional deference
accorded to an agency’s interpretation of a statutory
term is unwarranted when the construction of a statute
. . . has not previously been subjected to judicial scru-
tiny [or to] . . . a governmental agency’s time-tested
interpretation . . . . Conversely, an agency’s interpre-
tation of a statute is accorded deference when the
agency’s interpretation has been formally articulated
and applied for an extended period of time, and that
interpretation is reasonable. . . . Deference is war-
ranted in such circumstances because a time-tested
interpretation, like judicial review, provides an opportu-
nity for aggrieved parties to contest that interpretation.
Moreover, in certain circumstances, the legislature’s
failure to make changes to a long-standing agency inter-
pretation implies its acquiescence to the agency’s con-
struction of the statute. . . . For these reasons, this
court long has adhered to the principle that when a
governmental agency’s time-tested interpretation [of a
statute] is reasonable it should be accorded great weight
by the courts.’’ (Citations omitted; internal quotation
marks omitted.) Tuxis Ohr’s Fuel, Inc. v. Administra-
tor, Unemployment Compensation Act, supra, 309
Conn. 421–23.
Part B of the ABC test provides that ‘‘[s]ervice per-
formed by an individual shall be deemed to be employ-
ment subject to this chapter . . . unless and until it is
shown to the satisfaction of the administrator that . . .
such service . . . is performed outside of all the places
of business of the enterprise for which the service is
performed . . . .’’ General Statutes § 31-222 (a) (1) (B)
(ii) (II). Although the statute makes clear that individual
job sites are not necessarily synonymous with ‘‘the
places of business of the enterprise for which the ser-
vice is performed’’; General Statutes § 31-222 (a) (1)
(B) (ii) (II); there is no definition of ‘‘places of business’’
in the act to assist in understanding this distinction. We
thus seek guidance from the statute’s legislative history.
Section 31-222 (a) (1) (B) (ii) and several other
amendments to the act were adopted by the legislature
in 1971 to ensure compliance with the federal Employ-
ment Security Amendments of 1970, Pub. L. No. 91-373,
84 Stat. 695. See 14 H.R. Proc., Pt. 9, 1971 Sess., p. 4054,
remarks of Representative Dominic J. Badolato. In fact,
the legislature adopted language in § 31-222 (a) (1) (B)
(ii) (II) that was ‘‘suggested by the United States Depart-
ment of Labor . . . .’’ Conn. Joint Standing Committee
Hearings, Labor and Industrial Relations, 1971 Sess., p.
293. Other than a few fleeting references to this detail
in the committee hearings and the legislative debate,
however, there is no other discussion of the statutory
language in the legislative history.
A related provision on the nonvoluntary liability of
employers under the act, however, is contained in Gen-
eral Statutes § 31-223. That statute provides that, to
determine whether an employer has a particular num-
ber of employees at any point in time for purposes of
the act, any contractor or subcontractor who performs
work for an employer shall be considered an employee
under the act if the work ‘‘is part of [the] employer’s
usual trade, occupation, profession or business, and
. . . is performed in, on or about the premises under
such employer’s control, [even] if such contractor or
subcontractor shall not be subject to [the act] . . . .’’
General Statutes § 31-223 (a) (9) (B). The two principal
criteria used to determine whether an independent con-
tractor or subcontractor may be deemed an employee
under this provision, namely, whether the contractor’s
or subcontractor’s work is (1) in furtherance of the
employer’s usual course of business, and (2) is per-
formed in, on or around premises ‘‘under such employ-
er’s control,’’ are nearly identical to the two prongs
described in part B of the ABC test in § 31-222 (a) (1)
(B) (ii) (II).
The importance of this confluence of language per-
taining to the places where independent contractors
perform their work cannot be underestimated. In con-
struing multiple statutes on the same subject, ‘‘we are
guided by the principle that the legislature is always
presumed to have created a harmonious and consistent
body of law . . . . Legislation never is written on a
clean slate, nor is it ever read in isolation or applied in
a vacuum. Every new act takes its place as a component
of an extensive and elaborate system of written laws.
. . . Construing statutes by reference to others
advances [the values of harmony and consistency
within the law]. In fact, courts have been said to be
under a duty to construe statutes harmoniously where
that can reasonably be done. . . . Moreover, statutes
must be construed, if possible, such that no clause,
sentence or word shall be superfluous, void or insignifi-
cant . . . .’’ (Citations omitted; internal quotation
marks omitted.) Nizzardo v. State Traffic Commission,
259 Conn. 131, 157–58, 788 A.2d 1158 (2002). Thus, the
most harmonious reading of the two provisions would
be to construe ‘‘places of business,’’ as used in § 31-222
(a) (1) (B) (ii) (II), in light of the more specific definition
provided in § 31-223 (a).
Nevertheless, because of the difference in language,
we do not deem § 31-223 (a) (9) (B) to be dispositive
at this early stage of our analysis but also consider other
interpretive tools. It is well established that ‘‘[w]here a
statute does not define a term it is appropriate to look
to the common understanding expressed in the law and
in dictionaries.’’ Caldor, Inc. v. Heffernan, 183 Conn.
566, 570–71, 440 A.2d 767 (1981). Common dictionaries
contain no definition of the term ‘‘place of business.’’
Black’s Law Dictionary, however, defines ‘‘place of busi-
ness’’ as ‘‘[a] location at which one carries on a busi-
ness.’’ Black’s Law Dictionary, supra, p. 1334. A ‘‘busi-
ness’’ is further defined as ‘‘[a] commercial enterprise
carried on for profit; a particular occupation or employ-
ment habitually engaged in for livelihood or gain.’’ Id.,
p. 239. Both of these definitions, however, lack the
specificity required to be of value in the present context.
There is likewise no long-standing agency interpreta-
tion of the phrase to assist in determining when services
are performed outside the places of business of the
enterprise. Rather, the board has reached different con-
clusions based on the facts and circumstances of indi-
vidual cases. See, e.g., Benitz v. Administrator, Unem-
ployment Compensation Act, Employment Security
Appeals Division, Board of Review, Case No. 9004-BR-
10 (October 7, 2010) (customers’ homes were not con-
sidered places of business for purposes of antenna dish
installation because, even though enterprise controlled
scheduling, performance and financial aspects of
installers’ services, customers entered into contracts
for installation with enterprise contractor rather than
enterprise); Alward v. Administrator, Unemployment
Compensation Act, Employment Security Appeals Divi-
sion, Board of Review, Case No. 9008-BR-93 (June 20,
1995) (party and entertainment sites were not consid-
ered places of business because enterprise planned and
coordinated parties and events by telephone from home
office and did not manage or control performance of
services at party or entertainment sites); Greatorex v.
Administrator, Unemployment Compensation Act,
Employment Security Appeals Division, Board of
Review, Case No. 1169-BR-88 (January 9, 1989) (con-
struction sites secured by contract were considered
places of business because enterprise was licensed as
home improvement contractor and subcontractors per-
formed electrical and plumbing services at same sites
at which enterprise’s employees performed carpentry
services).8 As a consequence, it is difficult to derive any
general principles from the agency’s interpretations that
would be helpful in the present case.
We thus turn to two Superior Court cases that have
interpreted ‘‘places of business’’ under part B of the
ABC test.9 In JSF Promotions, Inc. v. Administrator,
Unemployment Compensation Act, supra, Superior
Court, Docket No. CV-97-0575801, the court concluded
that the services of product demonstrators, who
entered into contracts with the plaintiff to work in
supermarkets, were performed outside the plaintiff’s
place of business. The court stated that the supermar-
kets were entirely separate enterprises from that of the
plaintiff and that the plaintiff’s business was ‘‘essentially
to serve as a broker or intermediary between the super-
markets, the manufacturers, and the demonstrators.
. . . As such, [the plaintiff’s] place of business is not
the supermarkets where the demonstrators work but,
rather, where the plaintiff does its own work, that is,
in its own office.’’ Id. Similarly, in Daw’s Critical Care
Registry, Inc., the court concluded that nurses who
contracted with the plaintiff to provide nursing care on
a temporary basis to various health-care facilities did
not work at the plaintiff’s place of business following
assignment to the client’s location because the plaintiff
was not in the business of providing patient care but
of brokering nursing personnel. Daw’s Critical Care
Registry, Inc. v. Dept. of Labor, supra, 42 Conn. Supp.
402. The court explained that nursing services were a
function beyond what the plaintiff held itself out as
performing, and, therefore, the client locations where
services were performed were not within the plaintiff’s
business enterprise. Id., 403. These two decisions, how-
ever, like the agency’s decisions, are highly fact specific
and do not purport to define ‘‘places of business’’ in a
manner that would be generally applicable in other
contexts.
In the absence of a time-tested agency interpretation
or any clear agreement on a defining principle in the
Superior Court decisions, it has been our practice to
examine the case law of other jurisdictions that have
adopted the ABC test. See JSF Promotions, Inc. v.
Administrator, Unemployment Compensation Act,
supra, 265 Conn. 421–22. A review of these cases, how-
ever, reveals a similar lack of consensus. Some courts
have concluded that services performed at sites other
than the office locations of the enterprise or its physical
plant are not places of business because the business
functions as a broker and the services performed at the
sites are not an integral part of the enterprise or because
treating them as places of business would have unac-
ceptable economic consequences, such as higher busi-
ness costs. See, e.g., Sinclair Builders, Inc. v. Unem-
ployment Ins. Commission, 73 A.3d 1061, 1065, 1067,
1072–73 (Me. 2013) (job sites at which workers per-
formed carpentry, plumbing, heating, electrical and
other services for construction company were not
places of business because, although employer’s place
of business may include location where employer has
significant and business-related presence, extending
places of business to construction job sites would pre-
clude construction companies from satisfying part B of
ABC test when hiring independent contractors and thus
have negative economic effects on construction indus-
try, which would be inconsistent with legislature’s
intent); Athol Daily News v. Board of Review, 439 Mass.
171, 179, 786 N.E.2d 365 (2003) (geographic areas cov-
ered by carriers for newspaper delivery enterprise were
not places of business because, although carriers
picked up newspapers at company’s distribution center,
delivery locations such as homes, stores, bundle drops
and vending machines were ‘‘outside of premises owned
by the [enterprise] or which could fairly be deemed its
‘places of business’ ’’); Commissioner of the Division
of Unemployment Assistance v. Town Taxi of Cape
Cod, Inc., 68 Mass. App. 426, 431, 862 N.E.2d 430 (2007)
(geographic area covered by drivers for taxicab enter-
prise were not places of business because, even though
taxicabs were stored and dispatch system was operated
at business premises, drivers ‘‘did not transport custom-
ers on those premises . . . were not confined to a spe-
cific geographical location and were free to choose
locations where they would look for passengers’’ [cita-
tion omitted]); Burns v. Labor & Industrial Relations
Commission, Missouri Court of Appeals, Docket No.
WD 44749 (Mo. App. March 31, 1992) (job sites at which
roofers worked for roofing enterprise were not places
of business because only place of business was home
of business owner), aff’d, 845 S.W.2d 553 (Mo. 1993);
Metro Renovation, Inc. v. Dept. of Labor, 249 Neb. 337,
347, 543 N.W.2d 715 (1996) (rejecting rationale that
job sites at which tradespeople performed construction
work for remodeling and renovation enterprise were
places of business because it would preclude any con-
struction company from meeting requirements of law
and render worksite ‘‘meaningless as a test to determine
what constitutes an independent contractor in the con-
struction industry’’); Carpet Remnant Warehouse, Inc.
v. Dept. of Labor, 125 N.J. 567, 592, 593 A.2d 1177 (1991)
(homes where installers performed services for carpet
company were not places of business because phrase
‘‘refers only to those locations where the enterprise
has a physical plant or conducts an integral part of its
business’’); Barney v. Dept. of Employment Security,
681 P.2d 1273, 1275 (Utah 1984) (construction sites at
which nailers and finishers performed services for dry-
wall contracting enterprise were not places of business
because owner had home office, nailers and finishers
could work at other locations during day, including
private residential sites, and, ‘‘[i]f the job-site definition
of ‘places of business’ were to be utilized for construc-
tion workers, any unemployment question involving a
subcontractor on a construction site would result in
coverage under the [Utah Employment Security Act,
which] is not the intent of [that] act’’).
In contrast, other courts have extended the meaning
of ‘‘places of business’’ beyond headquarters, office
premises or physical plants to locations such as homes,
roadways, transportation routes, or logging and con-
struction sites because they have concluded that repre-
sentation of the interest of the enterprise by workers
at these locations renders them places of business.
Under this broad interpretation, places of business may
include the entire area in which the enterprise’s busi-
ness is conducted. See, e.g., Clayton v. State, 598 P.2d
84, 86 (Alaska 1979) (state owned parcel where workers
harvested timber for enterprise involved in processing
lumber was place of business because enterprise had
contract to harvest timber on logging site); Mamo
Transportation, Inc. v. Williams, 375 Ark. 97, 101, 103,
289 S.W.3d 79 (2008) (roadways on which workers
drove vehicles were places of business for enterprise
that provided ‘‘ ‘drive-away’ service’’ by transporting
customers’ vehicles from origin to destination through-
out United States and Canada because place of business
is ‘‘the place where the enterprise is performed,’’ and
enterprise for which service of transporting vehicles is
performed takes place ‘‘in the vehicle itself between
the point of origin and the point of destination’’); TNT
Cable Contractors, Inc. v. Director, Dept. of Workforce
Services, Arkansas Court of Appeals, Docket No. E-14-
224 (Ark. App. February 11, 2015) (cable installation
sites and connecting roadways were places of business
for enterprise providing cable installation and other
technical services because they were places where ser-
vices were performed); Home Care Professionals of
Arkansas, Inc. v. Williams, 95 Ark. App. 194, 199, 235
S.W.3d 536 (2006) (homes where workers took care of
elderly clients for home care referral enterprise were
places of business because ‘‘the representation of an
entity’s interest by an individual on a premises renders
the premises a place of the employer’s business,’’ and
caregivers represented enterprise’s stated interests of
providing home care for elderly while in client’s homes,
which resulted in profits for enterprise); Carpetland
U.S.A., Inc. v. Dept. of Employment Security, 201 Ill.
2d 351, 391, 776 N.E.2d 166 (2002) (customers’ homes
where workers took measurements for floor covering
enterprise were places of business because ‘‘place of
business extends to any location where workers regu-
larly represent its interest,’’ and, thus, when measurers
visit customers’ premises to take measurements neces-
sary for quoting prices and closing sales, they represent
enterprise’s interests); L.A. McMahon Building Main-
tenance, Inc. v. Dept. of Employment Security, 32
N.E.3d 131, 142 (Ill. App. 2015) (customers’ homes
where workers washed windows for enterprise provid-
ing window washing services were places of business
because ‘‘[a]n employing unit’s place of business
extends to any location where workers regularly repre-
sent its interests,’’ and window washers represented
enterprise interests when they worked at customers’
homes); Chicago Messenger Service v. Jordan, 356 Ill.
App. 3d 101, 115–16, 825 N.E.2d 315 (roadways on which
workers drove vehicles were places of business for
enterprise providing courier service involving pick up
and delivery of packages from one location to another),
appeal denied, 215 Ill. 2d 594, 833 N.E.2d 1 (2005);
McPherson Timberlands, Inc. v. Unemployment Ins.
Commission, 714 A.2d 818, 823 (Me. 1998) (logging
sites at which worker harvested timber for timber man-
agement and marketing enterprise were places of busi-
ness because enterprise had ‘‘significant and business-
related presence at the location’’ due to its ‘‘contractual
relationship with the landowner, its interest in the tim-
ber on the property, and its physical presence on the
property,’’ and, accordingly, ‘‘the property was within
[the] business territory [of the enterprise]’’); Vermont
Institute of Community Involvement, Inc. v. Dept. of
Employment Security, 140 Vt. 94, 99, 436 A.2d 765
(1981) (offsite locations where adjunct faculty taught
courses for educational institution were places of busi-
ness even though they were outside home office
because places of business include ‘‘the entire area in
which [the institution] conducts [its] business’’).
Even if we limit our review to cases in which services
were performed at customers’ homes, courts have
reached different conclusions, with one jurisdiction
concluding that homes were not places of business
for the purpose of carpet installation; Carpet Remnant
Warehouse, Inc. v. Dept. of Labor, supra, 125 N.J. 592;
and two other jurisdictions concluding that homes were
places of business for the purpose of providing home
care to elderly clients; Home Care Professionals of
Arkansas, Inc. v. Williams, supra, 95 Ark. App. 199;
measuring the premises for floor covering; Carpetland
U.S.A., Inc. v. Dept. of Employment Security, supra,
201 Ill. 2d 391; and window washing. L.A. McMahon
Building Maintenance, Inc. v. Dept. of Employment
Security, supra, 32 N.E.3d 142.
We conclude, on the basis of our review of the case
law and our examination of the broader statutory
scheme, that two principles should govern our con-
struction of part B of the ABC test. The first principle
relates to the harmonious construction of related stat-
utes. As previously discussed, the statutory scheme has
provided for nearly eighty years, well before the legisla-
ture adopted the ABC test in 1971, that an independent
contractor may be considered an employee under the
act if the contractor worked ‘‘on or about the premises
under such employer’s control . . . .’’ General Statutes
§ 31-223 (a) (9) (B). Thus, in order to effect a harmoni-
ous interpretation of §§ 31-222 (a) (1) (B) (ii) (II) and
31-223 (a) (9) (B), a reviewing court should consider
the extent to which the employer exercised control
over the location where the independent contractor
worked when construing part B of the ABC test. The fact
that the language in the two provisions is not identical is
of little import. The language used in the ABC test was
adopted in order to comply with federal law and was
suggested by the United States Department of Labor,
and there is no evidence that the legislature understood
that language as broadening the criteria under which
an independent contractor could be considered an
employee beyond the criteria that had existed for more
than thirty years under § 31-223 (a).10
The second principle relates to the conjunctive nature
of the test, which suggests that no one part of the test
should be construed so broadly—and, therefore, made
so difficult or impossible to meet—that the other two
parts of the test are rendered superfluous. Under this
principle, we reject the broad interpretation adopted
by some of our sister states that the meaning of ‘‘places
of business’’ in the present context should extend to
all locations where the installers/technicians performed
their services; see Mamo Transportation, Inc. v. Wil-
liams, supra, 375 Ark. 101, 103; or regularly represented
the interests of the plaintiff; see Carpetland U.S.A., Inc.
v. Dept. of Employment Security, supra, 201 Ill. 2d 391;
because doing so would make it far more difficult for
employers to satisfy part B of the test when they hire
independent contractors to work at locations apart
from their offices or physical plants. See Daw’s Critical
Care Registry, Inc. v. Dept. of Labor, supra, 42 Conn.
Supp. 389–90 (‘‘[t]he exemption [under the act]
becomes meaningless if it does not exempt anything
from the statutory provisions . . . where the law and
the facts merit the exemption in a given case’’ [citation
omitted; internal quotation marks omitted]). The fact
that part B provides a choice between two alternative
criteria that may be satisfied by employers who seek
to challenge application of the act does not resolve the
problem created by an overly broad interpretation of
the term ‘‘places of business.’’ The choice is provided
precisely because the burden of proof required under
the test is so difficult to sustain. Adopting a broad inter-
pretation of part B would deprive employers of that
choice and, in some cases, could make the exemption
provided under the ABC test meaningless by increasing
this already heavy burden.
We therefore conclude that the meaning of ‘‘places
of business’’ in the present context should not be
extended to the homes in which the installers/techni-
cians worked, unaccompanied by the plaintiff’s employ-
ees and without the plaintiff’s supervision. The homes
of the plaintiff’s customers, unlike the plaintiff’s busi-
ness offices, warehouses and other facilities, were
under the homeowners’ control. Regardless of whether
the plaintiff ‘‘conduct[ed] an integral part of its business
in customers’ homes,’’ as noted by the board, it was
not the plaintiff but the homeowners who (1) deter-
mined when access to their homes was convenient, (2)
brought the installers/technicians to locations inside
their homes and elsewhere on their property where
equipment was to be installed, and (3) identified prob-
lems with the installation process or with the newly
installed equipment during the warranty period.
Accordingly, we conclude that the homes of the plain-
tiff’s customers were not ‘‘places of business’’ under
part B of the ABC test.
This interpretation not only comports with our well
established case law on the distinction between an
employee and an independent contractor, and with the
related statutory provision in § 31-223 (a) (9) (B), but
is consistent with the defendant’s published guidelines
for determining the status of workers as independent
contractors or employees under § 31-222 (a) (1) (B) (ii)
(II). The Unemployment Compensation Tax Division,
which operates within the Department of Labor (depart-
ment), publishes a document entitled ‘‘Self-Assessment
of the Employer-Employee Relationship for CT Unem-
ployment Taxes,’’ which is ‘‘designed to allow [the
enterprise] to perform a self-examination of the status
of workers in [the enterprise] whom [it] consider[s] to
be independent contractors.’’ Unemployment Compen-
sation Tax Division, Employment Security Division,
‘‘Self-Assessment of the Employer-Employee Relation-
ship for CT Unemployment Taxes,’’ p. 1, available at
https://www.ctdol.state.ct.us/uitax/abctest.doc (last
visited February 25, 2016). The section pertaining to
part B of the ABC test instructs in capital letters and
boldface type that ‘‘Answering Either of These Ques-
tions [‘No’] Will Satisfy This Test.’’ Id., p. 4. The second
question, which is described as the factor relating to
‘‘Outside Employer’s Premises,’’ then asks: ‘‘Does the
individual perform any of the work on the firm’s prem-
ises?’’ Id. This language indicates not only that the
department has traditionally understood places of busi-
ness as premises controlled by the enterprise, but that
business entities have been operating under the same
understanding, and, therefore, any departure from this
view in the present case would require a change in
department practice.
We also avoid a broad interpretation of ‘‘places of
business’’ in the present context because of certain
undesirable, practical consequences that might follow,
including the taxing of two different business entities
for the same worker and the receipt of benefits by the
unemployed worker from both entities, as when an
enterprise hires an independent contractor who oper-
ates a sole proprietorship, partnership, limited liability
company or corporation that also pays unemployment
contribution taxes for workers it sends to perform ser-
vices for another enterprise. Furthermore, it makes no
sense for an individual’s home to be considered a place
of business when the enterprise has no office in the
home and the sanctity of the home and the privacy
interests of its residents have long been recognized in
our jurisprudence. See, e.g., Simms v. Chaisson, 277
Conn. 319, 334–35, 890 A.2d 548 (2006). Finally, as the
Connecticut Business and Industry Association, Inc.,
argues in its amicus brief, a broad interpretation in this
context could turn every Connecticut household into
a place of business for any company that performs
services at a customer’s home, thus profoundly limiting
an employer’s ability to subcontract work.
The dissent’s heavy reliance on the fact that we have
declared the statute remedial in prior cases is insuffi-
cient reason to conclude that the homes of the plaintiff’s
customers are places of business under § 31-222 (a)
(1) (B) (ii) (II). The United States Supreme Court has
concluded that the term ‘‘remedial’’ is vastly overused
and often is misunderstood because ‘‘almost every stat-
ute might be described as remedial in the sense that
all statutes are designed to remedy some problem. And
even if the [United States Supreme] Court identified
some subset of statutes as especially remedial, the
[c]ourt has emphasized that no legislation pursues its
purposes at all costs. Rodriguez v. United States, 480
U.S. 522, 525–26, 107 S. Ct. 1391, 94 L. Ed. 2d 533 (1987)
. . . . [Legislative] intent is discerned primarily from
the statutory text.’’ (Internal quotation marks omitted.)
CTS Corp. v. Waldburger, U.S. , 134 S. Ct. 2175,
2185, 189 L. Ed. 2d 62 (2014). In other words, ‘‘the
plain meaning of the statute and the role of legislative
compromise restrain the application of the remedial
canon of statutory interpretation.’’ Waldburger v. CTS
Corp., 723 F.3d 434, 452 (4th Cir.) (Thacker, J., dis-
senting), rev’d, U.S. , 134 S. Ct. 2175, 189 L. Ed.
2d 62 (2014). As one federal court has cogently noted,
‘‘[s]tatutes do more than point in a direction . . . .
They achieve a particular amount of [their] objective,
at a particular cost in other interests. An agency cannot
treat a statute as authorizing an indefinite march in a
single direction. [N]o legislation pursues its purposes
at all costs. Deciding what competing values will or will
not be sacrificed to the achievement of a particular
objective is the very essence of legislative choice—and
it frustrates rather than effectuates legislative intent
simplistically to assume that whatever furthers the stat-
ute’s primary objective must be the law. Rodriguez v.
United States, [supra, 525–26] . . . .’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) Contract Courier Services, Inc. v. Research &
Special Programs Administration, 924 F.2d 112, 115
(7th Cir. 1991). Rather, ‘‘after [it is] determine[d] that
a law favors some group, the question becomes: How
much does it favor them? Knowing that a law is remedial
does not tell a court how far to go. Every statute has
a stopping point, beyond which, [the legislature has]
concluded, the costs of doing more are excessive—or
beyond which the interest groups opposed to the law
were able to block further progress. A court must deter-
mine not only the direction in which a law points but
also how far to go in that direction.’’ (Emphasis omit-
ted.) Stomper v. Amalgamated Transit Union, Local
241, 27 F.3d 316, 320 (7th Cir. 1994), citing Rodriguez
v. United States, supra, 525–26. In the present case, the
ABC test provides for such a stopping point, and the
underlying remedial purpose of the act as a whole
should not be invoked to interfere with the legislature’s
intent of exempting employers from their obligation to
pay unemployment taxes when they hire independent
contractors to perform work for the enterprise. In other
words, because all portions of a statute are not intended
to have a remedial effect, the application of the remedial
canon of statutory interpretation should be restrained
in order to effectuate the legislative compromise repre-
sented by the exemption provision in § 31-222 (a) (1)
(B) (ii) (II). See, e.g., Waldburger v. CTS Corp., supra,
452 (Thacker, J., dissenting).
Having determined that the plaintiff’s places of busi-
ness did not extend to the homes of its residential
customers, we conclude that the trial court improperly
upheld the board’s determination that the plaintiff failed
to satisfy part B of the ABC test.11
The judgment is reversed and the case is remanded
with direction to render judgment sustaining the plain-
tiff’s appeal.
In this opinion EVELEIGH, ESPINOSA and ROB-
INSON, Js., concurred.
1
Because we reach our conclusions on the basis of the board’s modified
factual findings, we need not consider the plaintiff’s claim that the trial
court applied the wrong legal standard in deciding the motion to correct.
2
The board’s modified findings are as follows:
‘‘1. [The plaintiff] is primarily in the business of home heating oil delivery. It
also advertises and sells heating and cooling equipment, and the installation,
maintenance and repair of such equipment. For example, [the plaintiff]
advertises its twenty-four hour or ‘no heat’ call service. In addition, [the
plaintiff] advertises and sells home security alarm systems, and the installa-
tion, maintenance, and monitoring of such systems. [The plaintiff] specifi-
cally advertises the sale of installed heating and cooling equipment and
security systems, and it contracts directly with its customers regarding
that installation.
‘‘2. Approximately 90 [percent] of [the plaintiff’s] business is generated
from its home heating oil delivery service. The remaining [10 percent] of
the business results from its heating and cooling system installation and
repair, home alarm system installation and maintenance and its service
work, which is routinely part of the service contracts it offers its customers.
The [plaintiff] advertises home heating oil delivery, heating and cooling
installation, monitoring and maintenance, tank removal, service work and
home alarm system installation to its customers and potential customers
in the yellow pages.
‘‘3. [The plaintiff] does not own or operate the tools, machinery or heavy
duty vehicles required to install heating systems, tank removal or home
alarm installation. As a result, it ‘contracts’ the work [out] to individuals
who routinely perform such work either for their own business or self
employment. The vast majority of the heating and cooling equipment and
security systems sold by [the plaintiff] are installed by the installers on behalf
of [the plaintiff]. After installation, [the plaintiff] has long-term arrangements
with its customers to service the heating and cooling equipment and to
provide monitoring of the security systems.
‘‘4. Heating and cooling installation, home alarm installation, and tank
removal are performed by a variety of individuals who either own their own
business and/or are self-employed (installers). Service and maintenance
work on the heating and cooling systems are performed by a variety of
individuals who either own their own business and/or are self-employed
(service technicians). The installers and technicians are licensed or certified
to perform their services in accordance with state law.
‘‘5. Installers are neither supervised by [the plaintiff] nor does [the plaintiff]
inspect their work. There is no representative of [the plaintiff] on the prem-
ises at any time during the installation project while it is in progress [or]
upon its completion. The same is applicable to the technicians.
‘‘6. [The plaintiff] determines the equipment to be installed for each project
and requires the installer to use the parts supplied by [the plaintiff]. On
occasion, the installer may supplement with its own/other parts as deemed
necessary to be reimbursed or replaced by [the plaintiff]. Installers use their
own equipment and tools to complete each project. The installer does not
pay for the equipment installed on the project, which is provided by [the
plaintiff]. The same is applicable to the technicians. The installers and
technicians also provide and pay for their own transportation without reim-
bursement by [the plaintiff]. The boiler installers [supply] piping, tubing,
fittings and cement as necessary for boiler installations, in addition to the
parts that [the plaintiff] supplies and requires the installers to use. [The
plaintiff] provided nozzles and strainers to individuals who serviced custom-
ers who had no heat or needed their furnaces cleaned. The security system
installers receive from [the plaintiff] wires and ‘everything down to the
screws,’ and they supply no parts at all.
‘‘7. The installers and technicians are free to accept or reject any assign-
ment which is offered to them, and can determine [on what] days they will
perform services for [the plaintiff].
‘‘8. [The plaintiff] bills each customer and accepts payment to [the plaintiff]
for installation and service work. Neither the installers nor the technicians
bill or accept payment from the customer.
‘‘9. Installers and technicians are encouraged to display [the plaintiff’s]
name on their clothing (shirts, hats), and the utility vehicles they use to
perform their work. [The plaintiff] requires the security system installers
to display photo badges which identify them as subcontractors of [the
plaintiff]. The installers and technicians are not required to display the
[plaintiff’s] name on their apparel or vehicles, and security system installers
are required to display photographic identification badges identifying them-
selves as subcontractors for [the plaintiff]. [The plaintiff] provides the install-
ers and technicians with shirts and hats labeled ‘Standard Oil’ with the
understanding that wearing these items could alleviate any customer con-
cern or confusion when they appear at a customer’s residence.
‘‘10. Installers and technicians are limited to provide the installation/
service, which [the plaintiff] has sent them to perform. If a customer requests
additional work/services, the installer/technician must direct the customer
to contact [the plaintiff] directly. Installers/technicians are not allowed to
perform additional work/services for said customers without permission
and/or direction from [the plaintiff].
‘‘11. The installers and technicians are required to provide the services
personally. They are not permitted to subcontract, although they may hire
assistants to help them perform the work and may supervise their employees
as they see fit. The installers and technicians are not allowed to use casual,
pickup or day laborers when providing services in customers’ homes.
‘‘12. Each of the installers and technicians has an independent business
which provides the same types of services that [the installers and techni-
cians] perform on behalf of [the plaintiff]. Many of the installers and techni-
cians have business cards and advertise their businesses. The heating and
cooling equipment installers are required to have box trucks, which are
capable of transporting large equipment, such as boilers and oil burners. In
addition, many of the installers and technicians earned at least some of their
income from sources other than [the plaintiff] during the years in question.
‘‘13. [The plaintiff] makes arrangements directly with the customer regard-
ing all installation and service. It schedules installation and service appoint-
ments with all the customers, and then finds an installer or technician who
can take the assignment. If they accept an assignment from [the plaintiff],
the installers and technicians must perform their work within a designated
timeframe which was set by [the plaintiff] and the customer.
‘‘14. Installers and technicians are required to sign . . . contract
agreements which [have] been drafted by [the plaintiff]. The agreement
requires installers and technicians to maintain a current license and specific
insurance coverage(s). The agreements state that the installers/technicians
shall at all times exercise independent judgment and control in the execution
of any work, job or project they accept.
‘‘15. The installers and technicians are paid a set rate per piece of work.
They cannot negotiate the pay rate, which is established by [the plaintiff].
[The plaintiff] requires the installers and technicians to submit their invoices
for payment no later than Friday of the week in which they satisfactorily
complete their assignments.
‘‘16. Installers and technicians generate a percentage of [the plaintiff’s]
revenues. This portion of [the plaintiff’s] business and profitability is depen-
dent on the installation/service work provided by the installers/technicians.
‘‘17. [The plaintiff] sells service contracts to its customers, which is central
and core to its home heating oil delivery service. While [the plaintiff] main-
tains a staff of employees to perform such services, it ‘contracts’ with the
technicians to perform the same/similar services to its customers. These
technicians are subject to the same terms and conditions as the installers
in regard to appointments, billing, clothing, work performed and licensing
and insurance requirement[s].
‘‘18. The [defendant] previously identified Walter Camp as an employee
in a prior audit. [The plaintiff] [reported Camp] as an employee at the time
of the [appeals] referee’s hearing(s).
‘‘19. The parties stipulated that [§] A-19 in the contract, Right to Fire,
would not be a factor in the adjudication of this case.
‘‘20. The contracts contain a restrictive covenant which prohibits the
installers from soliciting work from or doing business with any of [the
plaintiff’s] customers for whom they have performed services.
‘‘21. Five of the installers/technicians, Brian Borchert, Walter Camp,
Edward Chickos, Jr., William Parks and Gary Vannart, responded ‘yes’ to a
question on the [defendant’s] questionnaire asking if [the plaintiff] has the
right to direct how they perform their work. None of the installers or techni-
cians responded ‘no’ to that question.
‘‘22. [The plaintiff] has instructed the security installers to run an extra
wire through its keypads and to use a certain type of conductor. Moreover,
the installers can only install the equipment which has been provided by
[the plaintiff]. [The plaintiff] provides the technicians with nozzles, strainers,
and filters for cleaning oil burners.
‘‘23. Any problems arising between a customer and the installer/technician
must be referred to [the plaintiff]. If a customer complains about an installa-
tion or service during the warranty period set forth in [the plaintiff’s] contract
with the installer/technician, [the plaintiff] has the right to send the installer/
technician back to the customer site to fix the problem or require the
installer/technician to pay for the repair.
‘‘24. [The plaintiff] does not provide the installers and technicians with
an employee handbook, and it does not pay for their training or require any
specific type of training [with respect to] its products.
‘‘25. The installers and technicians can realize a profit or a loss from their
provision of services to [the plaintiff].
‘‘26. While [the plaintiff] has no installers on payroll, it has on occasion
used a company employee to install equipment when no installers were
available. [The plaintiff] has employees who clean and service its heating
and cooling equipment, in addition to the technicians who are at issue in
this case.
‘‘27. In his payroll audit report dated July 23, 2009, the [defendant] agreed
with [the plaintiff’s] classification of certain individuals as independent con-
tractors.
‘‘28. The technicians and installers performed all work outside of the
offices of [the plaintiff].
‘‘29. The installers and technicians are free to accept or reject assignments
offered to them without adverse consequences.
‘‘30. The installers and technicians were required to return to correct
problems found with their work. [The plaintiff] warrants the installed equip-
ment, including parts and labor.’’ (Emphasis omitted.)
3
We rely in part on the Superior Court decisions because the court acted
as an appellate tribunal in those cases and the decisions were not appealed.
They thus provide helpful guidance regarding the factors necessary to estab-
lish control and direction.
4
We also noted previously in the decision that the professionals ‘‘were
utilized only on an as needed, individual lesson analysis basis. There were
no regularly scheduled hours of employment. No office space, equipment
or supplies were provided by [the plaintiff], with the sole exception of
stationery. All work was taken by the artists, writers and photographers to
their homes, offices or studios and returned to [the plaintiff] when com-
pleted. They had no minimum daily output and were given only one or two
assignments at a time. At no time did [the plaintiff] make any promises or
commitments concerning the number of lessons to be submitted for their
analysis. They were compensated only on the basis of the number of lesson
analyses completed. They received no paid holidays or vacations, no over-
time pay, and no sick leave or fringe benefits. No social security or federal
income taxes were withheld from [the plaintiff’s] payments to them. For tax
purposes, they received only informational statements ([Internal Revenue
Service] Form 1099) showing income received from [the plaintiff]. The
amount paid for each lesson analysis . . . was established by [the plaintiff].’’
F.A.S. International, Inc. v. Reilly, supra, 179 Conn. 509–10.
5
General Statutes § 31-72 provides in relevant part: ‘‘When any employer
fails to pay an employee wages in accordance with the provisions of sections
31-71a to 31-71i, inclusive . . . [t]he Labor Commissioner may collect the
full amount of any such unpaid wages . . . . In addition, the Labor Commis-
sioner may bring any legal action necessary to recover twice the full amount
of unpaid wages . . . and the employer shall be required to pay the costs
and such reasonable attorney’s fees as may be allowed by the court. . . .’’
6
In accordance with the board’s finding that ‘‘[t]he parties stipulated that
[§] A-19 in the contract, Right to Fire, would not be a factor in the adjudication
of this case’’; footnote 2 of this opinion; we do not consider this factor, as
the courts in Latimer and Daw’s Critical Care Registry, Inc., did.
7
To the extent one might argue that our conclusion is not sufficiently
deferential to the board’s determination that the installers/technicians
worked under the plaintiff’s control and direction, we disagree. As noted
previously in this opinion, our duty is to determine ‘‘whether there is substan-
tial evidence in the administrative record to support the agency’s findings
of basic fact and whether the conclusions drawn from those facts are reason-
able.’’ (Internal quotation marks omitted.) JSF Promotions, Inc. v. Adminis-
trator, Unemployment Compensation Act, supra, 265 Conn. 417. In the
present case, we have concluded that, although some of the board’s modified
findings are indicative of control and direction, they are greatly outweighed
by other findings indicating the absence of control and direction. Accord-
ingly, we do not defer to the board’s conclusion under part A of the ABC
test because we regard it as unreasonable in light of these findings and
persuasive Connecticut precedent to the contrary.
8
Both parties also cite Feshler v. Administrator, Unemployment Compen-
sation Act, Employment Security Appeals Division, Board of Review, Case
No. 995-BR-88 (December 27, 1988), in which the board concluded that
Hartford Hospital was the place of business of the enterprise because the
nurses engaged by the enterprise provided services to hemodialysis patients
on the hospital’s premises. Feshler, however, is inapposite because the board
found that the enterprise’s bookkeeper, clerical and other administrative
staff also worked on the hospital premises, thus shedding no light on the
question before this court of whether services performed at sites separate
and apart from the office locations of the enterprise are places of business
under § 31-222 (a) (1) (B) (ii) (II).
9
In Stone Hill Remodeling v. Administrator, Unemployment Compensa-
tion Act, supra, Superior Court, Docket No. 089398, the trial court upheld
the board’s decision in Greatorex on the ground that the appellant had failed
to satisfy parts A and C of the ABC test, and thus did not address part B.
10
The dissent disagrees with this conclusion because (1) neither the par-
ties, the board nor the trial court relied on § 31-223 (a) in interpreting § 31-
222 (a) (1) (B) (ii) (II), (2) the ABC test was crafted by the federal government
instead of by the Connecticut legislature, and (3) the test was adopted to
satisfy an extrajudicial requirement and not with the intention of creating
a harmonious body of unemployment compensation laws in Connecticut.
The plaintiff argued, however, that the meaning of a statute is to be ascer-
tained not only from its text, but from its relationship to other statutes. It
is thus entirely appropriate for this court to examine related provisions of
the statutory scheme concerning employers and independent contractors.
With respect to the fact that the ABC test was crafted by the federal govern-
ment and adopted to satisfy federal requirements, these circumstances do
not constrain the court’s ability to examine related statutes but serve as an
incentive to ensure that, in the absence of federal guidance, the court con-
strues the test in a manner consistent with the underlying objective of
Connecticut’s existing statutory scheme.
Finally, to the extent the dissent concludes that, even if it accepted our
interpretation of ‘‘places of business’’ as meaning ‘‘ ‘premises under [an]
employer’s control,’ ’’ the plaintiff in the present case still does not satisfy
part B of the ABC test, we disagree. The dissent reasons that, because the
plaintiff’s customers have authorized the plaintiff to enter their homes to
provide various services, including installation services, the plaintiff exerts
dominion and control over the premises to the extent necessary to provide
those services. This conclusion is incorrect. The plaintiff has no dominion,
control, leasehold interest or any right other than a license to enter the
premises for the purpose of performing the services. Customers thus may
direct the plaintiff’s employees or contractors to leave the premises at any
time. See State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990) (‘‘A
license in real property is defined as a personal, revocable, and unassignable
privilege, conferred either by writing or parol, to do one or more acts on
land without possessing any interest therein. . . . Generally, a license to
enter premises is revocable at any time by the licensor.’’ [Citation omitted;
emphasis omitted; internal quotation marks omitted.]). Consequently, the
plaintiff cannot be said to have dominion and control over the premises
when its independent contractors perform services at the homes of the
plaintiff’s customers.
11
We thus need not address the plaintiff’s claim under part B of the ABC
test that the services of its independent contractors were performed outside
the usual course of its business.