Hanson v. BCB, Inc.

McFADDEN, Justice,

dissenting:

I dissent as to the majority’s decision to overrule the Industrial Commission’s decision which was supported by substantial competent evidence. The majority states, “In a case involving personal services in deciding whether or not the worker is an employee or an independent contractor, the worker’s body is not a major item of equipment within the meaning of the test.” Such reasoning is ludicrous when applied to an exotic dancer’s body when she is engaged in her dancing before the patrons of a saloon as in this case, and as found by the commission. The commission correctly weighed the conflicting evidence, balancing the indicia of an employer/employee relationship against the stronger evidence of independent contractor/principal relationship. The commission’s ultimate determination that the preponderance of the evidence indicated that Hanson and the saloon had an independent contractor/principal relationship was supported by substantial competent evidence and based upon a correct legal basis. The commission applied the “right to control” test as required by this Court’s decision in Ledesma v. Bergeson, 99 Idaho 555, 585 P.2d 965 (1978). The commission reasoned from the facts that Hanson was an independent contractor because (1) the saloon “did not assume the right to exercise direction and control over the time, manner, method and details of work performed by Deceased”; (2) the dancers chose their own days and hours of work; (3) the dancers supplied the major items of equipment (i.e., their costumes and their bodies); (4) the method of pay was consistent with that of an independent contractor. On balance, the commission found that Mrs. Hanson was not an employee, and that therefore the claimants were not entitled to benefits.

On appeal the main issue is whether the Industrial Commission’s finding that Hanson was an independent contractor is supported by substantial evidence in the record. This Court’s authority to review factual questions is limited. “Our review of the decisions of the Industrial Commission is limited by Article 5, § 9 of the Idaho Constitution to questions of law and to determination [of] whether the commission’s findings are supported by substantial and competent evidence.” Cahala v. OK Tire Store, 112 Idaho 1020, 1021, 739 P.2d 319, 320 (1987); Parker v. St. Maries Plywood, 101 Idaho 415, 419, 614 P.2d 955, 959 (1980), citing Idaho Const. Art. 5, § 9; Booth v. City of Burley, 99 Idaho 229, 580 P.2d 75 (1978).

“The determination of whether an injured party is an independent contractor or an employee is a factual determination to be made from full consideration of the facts and circumstances established by the evidence,” Burdick v. Thornton, 109 Idaho 869, 871, 712 P.2d 570, 572 (1985); Burns v. Nyberg, 108 Idaho 151, 697 P.2d 1165 (1985) (Bistline, J., dissenting), quoting Ledesma v. Bergeson, 99 Idaho 555, 585 P.2d 965 (1978). Thus, we are limited in this case to reviewing the record to determine whether the commission’s factual determination is supported by substantial and competent evidence.

“The ultimate question in finding an employment relationship is whether the employer assumes the right to control the time, manner and method of executing the work of the employee, as distinguished from the right merely to require certain definite results in conformity with their agreement.” Burdick v. Thornton, supra 109 Idaho at 871, 712 P.2d at 572; Ledesma v. Bergeson, supra 99 Idaho at 558, 585 P.2d at 968; see also I.C. § 72-102(9), (13). “Four factors are traditionally used in determining whether a ‘right to control’ exists, including, (1) direct evidence of the right; (2) the method of payment; (3) furnishing major items of equipment; and (4) the right to terminate the employment relationship at will and without liability.” Burdick v. Thornton, supra 109 Idaho at 871, 712 P.2d at 572.

Although the evidence produced before the Industrial Commission was conflicting, *136substantia] competent evidence did exist to support the commission’s finding that Hanson was not an employee. The evidence supporting the finding is summarized as follows: (1) that the dancers’ compensation was based entirely on an equal share of the moneys received as a cover charge on the evenings they danced and an equal share of the tips from the customers. The bar received no percentage of the cover charge or tips and made no direct payments to the dancers. (2) The dancers did not report their earnings to the saloon, and there was no provision for withholding any taxes, Social Security or other items; (3) the dancers selected their own musical numbers to which they would dance; (4) the dancers worked from three to five nights per week at their discretion; (5) the dancers were not disciplined for failing to appear or for refusing to fill in for other dancers who had cancelled or failed to report.

As recognized by the commission, there was conflicting evidence in the record. Indicia of both an employer/employee and independent contractor/principal were present. However, the commission applied the Ledesma and Burdick cases, and the commission’s factual findings are supported by substantial competent evidence. The facts recited above support the commission’s conclusions (1) that the saloon exerted minimal (if any) control over the dancers, (2) that the method that the dancers received compensation was not consistent with any employer/employee relationship, and (3) that “the dancers supplied the major items of equipment (i.e., their bodies, skills and costuming). The commission’s findings are supported by substantial competent evidence, and the order should be affirmed.