specially concurring. •
I concur in the Court’s opinion. Even though, at first glance, one might not be inclined to categorize sheetrock hangers and tapers as being engaged in an independently established trade or business, the evidence in the record, fairly viewed, supports this conclusion. The problem in this case, and in at least one other recent case (Giltner, Inc. v. Idaho Department of Commerce & Labor, 145 Idaho 415, 179 P.3d 1071 (2008)), is that the Industrial Commission has skewed its analysis of the independently established business prong of I.C. § 72-1316(4)(b) in favor of finding covered employment. That is, it has highlighted some of the many factors that go into making this determination, downplayed others, disregarded some, and even incorporated some factors not included in its regulation (IDAPA 09.01.35.112.04) or in this Court’s decisions. The Court has demonstrated in its opinion how this was done in the present case. The Commission acted similarly in the Giltner case, although there the Court decided to affirm the Commission on an alternate ground, rather than considering the manner in which the Commission applied its 15-factor test.
While the Commission is subject to criticism for the manner in which it has analyzed and applied the independently established business prong of I.C. § 72-1316(4)(b), previous decisions of this Court have not been particularly helpful in setting out the criteria for determining what constitutes an independently established business. Following the enactment of legislation in 1965, which established the independently established business prong in its present form, the Court established a simple three-factor test in Swayne v. Dept. of Employment, 93 Idaho 101, 456 P.2d 268 (1969), but eight years later, in Dept. of Employment v. Bake Young Realty, 98 Idaho *794182, 560 P.2d 504 (1977), it added a number of additional factors to consider with respect to the independently established business prong, which subsequently proliferated into the 15 factors now applied by the Commission under its regulation. With so many factors to consider, and with guidance from this Court that not all factors need be considered in any particular case, the groundwork was laid for the type of cherry-picking that has recently resulted at the administrative level. It is time for the Court to consider whether the proliferation of factors is warranted by the legislative language or whether a more coherent set of criteria should be established so that the administrative agencies can be better guided in their efforts to determine who is covered under the unemployment security law and who is not. Some historical review of this Court’s decisions on the independently established business prong is appropriate.3
Prior to the enactment of I.C. § 72-1316(4), the employment security law called for application of the common law test to determine if an individual was an independent contractor, and therefor exempt from coverage. National Trailer Convoy, Inc. v. Employment Sec. Agency of Idaho, 83 Idaho 247, 251, 360 P.2d 994, 997 (1961). The Court defined an independent contractor as:
‘[0]ne who in rendering services exercises an independent employment or occupation and represents his employer only as to the results of his work and not as to the means whereby it is to be done, and the question whether one is a servant or an independent contractor has been considered in many cases, and various tests have been applied in determining it. It has frequently been stated that it is impossible to lay down any hard and fast rule to determine whether a particular relationship is one of master and servant or contractee and independent contractor, and that each ease must be determined on its own facts. Among the factors to be considered are whether the contractor is carrying on an independent business; whether the work is part of the employer’s general business; the nature and extent of the work; the skill required; the term and duration of the relationship; the right to assign the performance of the work to another; the power to terminate the relationship; the control and supervision of the work; the employer’s powers and duties with respect to the hiring, firing, and payment of the contractor’s servants; the control of the premises; the duty to supply the premises, tools, appliances, material, and labor; and the mode, manner, and terms of payment. Ordinarily no one feature of the relationship is determinative, and all are to be taken into consideration in determining whether or not a person is an independent contractor.’
National Trailer, 83 Idaho at 252, 360 P.2d at 997 (quoting 56 C.J.S. Master and Servant § 3(2)). The Court singled out three factors as being indicative of independent contractor status-the right to hire subordinates, ownership of major items of equipment, and whether liability attached upon termination of the relationship. Id. at 253, 360 P.2d 998. The Court then went on to attach significance to the mode of payment, stating, “Payment for a result or by the job is an indicia that the relationship is one of contractee and independent contractor, whereas payment for the performance of work indicates a master-servant relationship.” Id. (quoting 56 C.J.S. Master and Servant, § 3(8)). Of particular interest for purposes of the present case is the first factor — “whether the contractor was carrying on an independent business” — but more about that later.
In 1963, the Legislature amended the employment security law to eliminate the independent contractor test, substituting a provision exempting services performed by an individual “in an independently established trade, business, or profession in which the individual is customarily engaged.” 1963 Idaho Sess. Laws, ch. 318, p. 875. Two years later, the Legislature modified the 1963 revision to include the freedom from direction or control prong (which has been somewhat modified since that time) and to word the independently established business *795prong as it presently reads. 1965 Idaho Sess. Laws, eh. 214, p. 493.
This Court had an opportunity to consider the independently established business prong in Swayne, which involved the question of whether a trailer park lessee was an employee of the trailer park lessors for employment security purposes. The lessee was responsible for managing the trailer park, arranging for maintenance, and collecting rent. Rental income was divided among the lessee, the lessors, and the persons who were selling the trailer park to the lessors. The Court reversed a determination of the Industrial Accident Board4 that the lessee was an employee of the lessors. With regard to the independently established business prong, the Court referenced the three factors highlighted in National Trailer:
Insofar as the element of whether the lessee was engaged in an independent business is concerned, several factors are important:
(1) Did the lessee have authority to hire subordinates?
(2) Did the lessee own major items of equipment?
(3) Would either party be liable to the other for a peremptory termination of the business relationship?
Swayne, 93 Idaho at 105, 456 P.2d at 272 (citations omitted). The Court noted that the first element was satisfied because the lease was for a going business and, “[tjhat in itself gave the lessee the right to hire subordinates in the absence of an agreement to the contrary.” The lease also gave the lessee the right and obligation to hire personnel for maintenance and supervision of the business. Id. While it was questionable whether the lessee owned major items of equipment, she did own all the equipment necessary for operation of the business. Id. at 106, 456 P.2d at 273. The Court noted that the right to terminate the relationship without consequence is the strongest indication that a worker is not an independent businessman. Id.
Two years later, the Court decided Hammond v. Dept. of Employment, 94 Idaho 66, 480 P.2d 912 (1971), which involved two drivers, both of whom were former employees of Hammond Transfer. An appeals examiner found the drivers were employees of Hammond but the Industrial Accident Board held otherwise. We affirmed the Board’s decision. The Court determined that the drivers were free from direction and control in the performance of their work. With regard to the independently established business prong of the test, the Court stated:
In the case of Swayne v. Department of Employment, 93 Idaho 101, 456 P.2d 268 (1969), this court set down three factors to be considered in determining whether a worker is or is not engaged in an independent business. These factors are:
(1) Did the worker have authority to hire subordinates?
(2) Did the worker own major items of equipment?
(3) Would either party be liable to the other for a peremptory termination of the business relationship?
In this case, in addition to being entirely free from any control whatsoever in the performance of their work, [the two drivers] had the authority to hire subordinates to help them load and unload their trailers and exercised this authority frequently. They also owned the major item of equipment used in their hauling — the tractor, and were completely responsible for all expenses on the tractor including insurance, repairs and maintenance. These factors indicated that the drivers were engaged in an independent business and this indication is further strengthened by the fact that the expenses on their equipment constituted a part of their total overhead expense for which they were not reimbursed by Hammond.
Regarding the third factor, whether either party would be liable to the other for a peremptory termination of the business relationship, the record is of no assistance.
Id. at 68, 480 P.2d at 914-15. Thus, the Court engrafted a new consideration — that *796the worker paid his own expenses — onto the second factor.
We then proceed to Bake Young, in which the Court reversed an Industrial Commission finding that real estate salesmen operating under the brokerage of Bake Young Realty were employees. With regard to the independently established business prong, the Court, after setting out the three Swayne factors, stated:
Subsequent cases have made it clear that the factors mentioned in Swayne were not intended to present the Court’s exhaustive analysis, much less to institute a facile checklist for mechanical application:
“... we have never held that the fulfillment of this third factor, or of any one factor, was a prerequisite to a finding that the worker is engaged in an independent business.”
Id. at 186, 560 P.2d at 508 (quoting Hammond, 94 Idaho at 68-69, 480 P.2d at 914). The Court went on to consider and apply the three factors.
It found the first factor was inconclusive since real estate salesman generally do not hire subordinates, as they have no occasion to do so. However, the Court went on to say, “Should they care to do so ... nothing would stand in their way.” Id. The Court noted the appeals examiner’s ruling that real estate salesman do not own major items of equipment but indicated this reading of the Swayne requirement was too narrow. According to the Court, “The point is not whether the salesman owns major pieces of tangible equipment for the business, but whether he incurs substantial out-of-pocket professional expenses which are not reimbursed.” Id. at 187, 560 P.2d at 509. The Court noted that the salesman paid for their own cards, licensing fees, professional dues, and other expenses in dealing with clients, none of which expenses were reimbursed. Id. The Court downplayed the right to terminate the relationship without consequence, noting that one can make a stronger case for being an “independent contractor” if one can point to damages that will accrue in case of default upon a formal contractual relationship. Id.
The Court went on to say, “No one test standing alone, except the right of control in the relationship of employer and employee, and the lack of such right in that of principal and independent contractor is wholly decisive.” Id. (quoting Link’s School of Business, Inc. v. Employment Security Agency, 85 Idaho 519, 523, 380 P.2d 506, 508 (1963)). The Court then noted that additional factors had been considered in National Trailer, such as the driver’s control of his route, of the garaging and upkeep of his truck, his privilege of refusing a haul, and that payment was for a result or by the job. Id. The Court also found significant the fact that the principal did not withhold income or social security taxes and that the putative employer did not direct the hours of work. Considering these factors, all of which were borrowed from independent contractor cases, the Court determined the real estate salesman to be practitioners of an independent occupation. Id. Thus, the interpretation of I.C. § 72-1316(4)(b) began to take on the look of the independent contractor test that was eliminated in 1963.
Larsen v. State, Dept. of Employment, 106 Idaho 382, 679 P.2d 659 (1984) brought the process full circle. In that case, the Court, in effect, equated the independently established business prong with the independent contractor test. Larsen, 106 Idaho at 383-84, 679 P.2d at 660-61. In doing so, the Court relied heavily on National Trailer.
Vendx Marketing Co., Inc. v. Dept. of Employment, 122 Idaho 890, 841 P.2d 420 (1992) continued this trend. In that case, the Court first mentioned the three Swayne factors (downplaying the third factor pertaining to liability for termination of the relationship), and set out seven additional factors, all of which stemmed from National Trailer. They are:
1. Skills, qualifications, and training required for the job;
2. Methods of payment, benefits, and tax withholding;
3. Right to negotiate agreements with other workers;
4. Right to chose sales techniques or other business techniques;
5. Right to determine hours;
*7976. Existence of outside businesses or occupations;
7. Special licensing or regulatory requirements for performance of work.
Vendx, 122 Idaho at 896, 841 P.2d at 426. The Court went on to say, “Although covered employment may include independent contractors, the status of a worker as an independent contractor is a factor to be considered.”
In Beale v. State, Dept. of Employment, 131 Idaho 37, 951 P.2d 1264 (1997), the Court set out 11 factors, over and above the three Swayne factors, that could be considered in determining the independently-established business prong. They are:
1. Skills, qualifications, and training required for the job;
2. Method of payment, benefits, and tax withholding;
3. Right to negotiate agreements with other workers;
4. Right to choose sales techniques or other business techniques;
5. Right to determine hours;
6. Existence of outside businesses or occupations;
7. Special licensing or regulatory requirements for performance of work;
8. Whether the work is part of the employer’s general business;
9. The nature and extent of the work;
10. The term and duration of the relationship; and
11. The control of the premises.
Beale, 131 Idaho at 42, 951 P.2d at 1269.
The Idaho Department of Labor, apparently trying to keep up with the proliferation of factors, decided to take a snapshot of applicable factors following the Beale decision. On March 19, 1999, the Department adopted a comprehensive set of regulations pertaining to the employment security law, including a regulation to flesh out the independently established business prong. IDA-PA 09.01.35.112.04, which the Commission applied here, provides:
Proving Worker is Engaged in Independently Established Business. To meet the requirement of Section 72-1316(4)(b), Idaho Code, it must be proven that a worker is engaged in an independently established trade, occupation, profession or business. The following factors shall be considered in this determination:
a. Skills, qualifications, and training required for the job;
b. Method of payment, benefits, and tax withholding;
e.Right to negotiate agreements with other workers;
d. Right to choose sales techniques or other business techniques;
e. Right to determine hours;
f. Existence of outside businesses or occupations;
g. Special licensing or regulatory requirements for performance of work;
h. Whether the work is part of the employer’s general business;
i. The nature and extent of the work;
j. The term and duration of the relationship
k. The control of the premises;
l. Whether the worker has the authority to hire subordinates;
m. Whether the worker owns or leases major items of equipment or incurs substantial unreimbursed expenses, provided, that in a ease where a worker leases major items of equipment from the alleged employer;
i. The terms of the lease; and
ii. The actions of the parties pursuant to those terms must be commercially reasonable as measured by applicable industry standards.
n. Whether either party would be liable to the other party upon peremptory or unilateral termination of the business relationship; and
o. Other factors which, viewed fairly in light of all the circumstances in a given case, may indicate the existence or lack of an independently established trade occupation, professional or business.
It might be observed that the Department did a little bit of embellishment in factors “m” and “o”.
*798With this proliferation of factors, and the lack of any guidance from this Court as to how each is to be weighted and whether or not each is applicable in every case, it is no wonder that the Commission has produced some recent results of troublesome nature. Further, after the Legislature eliminated the independent contractor test, this Court has reestablished it through the independently established business prong. Had the Legislature wished this to be case, it could simply have so stated. Of particular interest is the fact that, over the years, the first factor noted in National Trailer — “whether the contractor is carrying on an independent business” — which was only one of a number of factors to be considered in determining whether a person was an independent contractor, has now morphed into the independent contractor test. That is, the single factor in National Trailer has now swallowed the independent contractor test and become not just one but, 15 factors. Given this history, one could understand if the Commission were somewhat befuddled in determining whether a person is engaged in an independently established business. The Court should clear up the matter by developing a common sense test that can be consistently applied.
. My dissent in Giltner (145 Idaho at 421, 179 P.3d at 1077) discusses the early history of this provision and I borrow substantially from it here.
. Predecessor of the Industrial Commission.