Fleece on Earth v. Department of Employment & Training

Burgess, J.,

¶ 29. dissenting. The majority extends the unemployment compensation law to abolish independent contracting from the manufacture of specified goods regularly produced for retail sale. It is now declared that persons working entirely on their own, free from all control and supervision by a company, are “employees” of that company simply because they make a product that the company orders, pays for, and resells. I dissent because this is not what the statute says or intends. Instead, the ABC test expressly recognizes and allows that an employment relationship can be exempt from the unemployment tax at a point, defined by the statute, when the person employed works independently from the business. Contrary to the Employment Security Board’s conclusion that the home workers in this case were employees, now erroneously confirmed by the majority, the findings of fact below demonstrate that the business met all three elements of the ABC test and that the workers were independent contractors not covered by the law. The Board’s judgment should be reversed.

¶ 30. There is no disagreement that parts B and C are satisfied with respect to these workers. The Board correctly determined that their work at home met the part B definition of services performed outside FOE’s place of business. The Board’s misunderstanding, that two of the workers could not be considered “customarily engaged” in an independent trade under part C if they had some other primary employment, is corrected by the majority’s proper construction of part C to recognize that a worker can be regularly engaged in a home trade on a part-time basis, or even while working in another occupation or for another employer.

¶ 31. The facts underlying the employment relationship between FOE and these workers equally satisfied the status of independent contractors as required under part A of the test. Essentially, although the employer would supply the material and patterns, and reserved the right to reject noncomplying products, these knitters and sewers worked at home, on their own equipment, as and when they pleased, and without any supervision or direction whatsoever over their performance. That FOE specified what it wanted and agreed to pay only for what was specified, does not make the workers its employees, lest every artificer of tailor-made or specified goods be rendered an employee of those who order particular products. It is long settled that when one party hires another to perform a task, but “may specify the result only, and the latter may adopt such means and methods as he chooses to accomplish that result, then the latter is not an employee, *470but an independent contractor.” Kelley’s Dependents v. Hoosac Lumber Co., 95 Vt. 50, 53, 113 A. 818, 820 (1921).

¶ 32. This status is not changed by frequency or volume of production, which are not elements of part A, or of parts B or C, and the fact that FOE supplies material and patterns to the home workers is equally irrelevant.2 The material and patterns were one in the same as the goods, or result, to be produced. Neither specification controlled or directed the “performance of such services” as described in part A, 21 V.S.A. § 1301(6)(B)(i), any more than ordering a tailor-made skirt in a particular plaid, or requiring that building or cabinetry be completed according to blueprints, controls or directs the worker’s performance. See Carpet Exch. of Denver, Inc. v. Indus. Claim Appeals Office, 859 P.2d 278, 281-82 (Colo. Ct. App. 1993) (holding that plans and diagrams for carpet installation defined the job or result to be paid for, and did not amount to control and direction of the job as would convert the jobbers into employees under part A).

¶ 33. The majority reminds us that, in keeping with the remedial purpose of the unemployment compensation law, the “statutory scheme at issue here is broader than the common law” and “draws into its sweep workers who might be independent contractors under the common law.” Ante, ¶ 11. No doubt “[i]t is plain from its terms that the three concomitant conditions [of the ABC test] bring under the definition of ‘employment’ many relationships outside of the common law concepts of the relationships of master and servant.” State v. Stevens, 116 Vt. 394, 397-98, 77 A.2d 844, 847 (1951). Thus, workers who could qualify as independent contractors at common law are nevertheless covered employees under the unemployment law unless they work outside of the employer’s course of business or workplace, and are customarily engaged in an independent vocation as provided by the accompanying conditions of parts B and C. 21 V.S.A. § 1301(6)(B)(ii), (iii).

¶ 34. That is not to say, however, that what is commonly termed an employer-employee relationship, or what used to be called a “master-servant” relationship at common law, is not also the basic component of *471part A of the ABC test.3 Considering the same language as that in Vermont’s part A, the Massachusetts Supreme Judicial Court explained in Athol Daily News v. Board of Review of Division of Employment & Training that “[t]his provision generally was construed according to the common-law analysis of master and servant relationship.” 786 N.E.2d 365, 371 (Mass. 2003) (citing Brigham’s Case, 202 N.E.2d 597, 598 (Mass. 1964), for the proposition that “[i]f in the performance of his work an individual is at all times bound to obedience and subject to direction and supervision as to details, he is an employee; but if he is only responsible for the accomplishment of an agreed result in an agreed manner, he is an independent contractor.”). Courts may debate the degree of control contemplated by the statute, but, as Benjamin S. Asia observed, while each part of the ABC test is distinctly significant and the test, as a whole, defines employment far more broadly than at common law, “[b]y and large, the courts have not seemed to give [part A] a very different meaning than they would have the common-law control test.” Employment Relation: Common Law Concept and Legislative Definition, 55 Yale L.J. 76, 86, 91 (1945) (cited with approval in Stevens, 116 Vt. at 398, 77 A.2d at 847).

¶ 35. In any event, the cases cited by the majority in support of expanding the statute are inapposite or immediately distinguishable. Reacting to the employer’s argument that its home knitters were not employees under part A because they were not supervised “at all times,” the court declared in Andrews v. Commodore Knitting Mills, Inc. without description, that “[i]t appears definitely in this case that some supervision is exercised over the workers by [the mill], such as *472the manner in which the work is to be performed----” 13 N.Y.S.2d 577, 578 (App. Div. 1939) (emphasis added). Homeworkers for a neckwear manufacturer in Peasley v. Murphy, 44 N.E.2d 876 (Ill. 1942), were determined not to be free from the control and direction of their employer, as set forth in part A, when they were required to work at a minimum speed, to abide by “rush” orders and deadlines, and to pay for spoiled merchandise. Id. at 879. In contrast, the workers in the instant case had no deadlines, no minimum hours, no special orders, and were not supervised or controlled at any time by FOE. Moreover, the statutory schemes in both Andrews and Peasley expressly included “industrial homework” within the definition of covered employment,4 a particularly broader version of the law not adopted by our Legislature, by virtue of which both courts agreed that such workers were not exempted from the law’s reach as independent contractors. Id.; Andrews, 13 N.Y.S.2d at 579. Unlike the adjunct faculty found subject to at least a modicum of control by the employing college in Vermont Institute of Community Involvement, Inc. v. Department of Employment Security, 140 Vt. 94, 98-99, 436 A.2d 765, 767 (1981), FOE did not require the homeworkers here to attend any meetings, to work minimum hours, to design any work or to submit any reports.

¶ 36. Although we broadly interpret the control factor in part A to mean “general control and the right to control... even though it is not exercised,” In re Bargain Busters, Inc., 130 Vt. 112, 117, 287 A.2d 554, 558 (1972) (quotations omitted), FOE neither exercised nor enjoyed any right to exercise control over the homeworkers in this case. Unlike the salespeople selling ad space for a weekly paper, and ascertained to be employees in Bargain Busters when they contracted to “strictly adhere” to the employer’s procedures and were obligated to not sell advertising for others in competition with their employer, id. at 113-14, 287 A.2d at 556, FOE imposed no such strictures on the homeworkers in this case. There is even less employer involvement here than in Athol Daily News, where newspaper carriers were found to be independent contractors in charge of their own deliveries, unfettered by the employer’s control and direction under part A, despite the *473business setting the route and a deadline for delivery. 786 N.E.2d at 371. Like the carpet installers found to be free of the employer’s control under part A in Carpet Remnant Warehouse, 593 A.2d at 1185, these homeworkers were free to accept or reject the work offered, could work as little or as much as they wished, and were free to work for others.

¶ 37. Similarly, carpenters paid by the hour to remodel a house according to design choices and changes made during construction by the owner, who also supplied the materials and retained the right to approve of the work and to require the carpenters to work faster, were not the owner’s employees under part A in Johnson v. Montana Department of Labor & Industry, 783 P.2d 1355, 1358 (Mont. 1989). The Montana court explained that the owner’s right to order what he wanted done was not the right to control how it was done. Id. at 1359. This analysis echoes the same common-sense distinction, recognized above in Kelley’s Dependents, 95 Vt. at 53, 113 A. at 820, and in Carpet Exchange of Denver, 859 P.2d at 281-82, that contracting for a particular product, or result, is not the same as controlling performance of work as contemplated by part A of the test.

¶38. To bolster its extension of the statute to unsupervised and independent workers, the majority proposes that no one may be an independent contractor exempt under part A of the ABC test, if the worker produces goods for a retail business on an ongoing basis. Ante, ¶¶ 15,17. Thus every artisan — be she jeweler, baker, lathe operator, glassblower, potter, truck farmer or eggroll purveyor — becomes the employee of the shop or enterprise that buys her product for resale. Perhaps the majority imagines that the material supplied by the business is, or should be, the distinguishing factor, as in jurisdictions with “industrial homeworker” statutes. If so, Vermont has not adopted such legislation; the provision of material to be used is no different than specifying that whatever product is ordered must be made of oak, silk, or be colored red; and this factor is nowhere an element of part A, or of any part, of the ABC test. What the majority promotes is simply not what the statute says, and purports to supersede the test expressed in part A: whether the worker “has been and will continue to be free from control or direction over the performance of such services” for which the person is paid. 21 V.S.A. § 1301(6)(B)(i). The majority either rewrites part A, or tacks on a new “part D” to the ABC test — neither of which were evidently intended by the Legislature.

¶ 39. The majority’s reasoning is unsound for at least four reasons. The first is that it ignores the independent-contractor status recognized *474by part A of the ABC test. Second, the majority’s continuous-supply-of-product-to-retailers-test as a criterion for covered employment conflicts with, and eliminates, part B of the test, which expressly exempts work within “the usual course of the business for which such service is performed,” provided it is “performed outside of all the places of business of the enterprise for which such service is performed.” Id. § 1301(6)(B)(ii). Third, the majority’s confusion or conflation, or both, of the product to be made with control of the performance in making it, cannot but eliminate part A from the ABC test since every specification of a product to be made and paid for must, by the majority’s logic, constitute control over performance of the work. Finally, the majority’s extension of the statute in this manner makes the law practically identical to legislation governing “industrial homeworkers,” like those enacted by Illinois and New York, when that legislation has not been passed in Vermont.

¶ 40. We should exercise “[gjreat care ... not to expand proper construction of a statute into judicial legislation.” Harris v. Sherman, 167 Vt. 613, 614, 708 A.2d 1348, 1350 (1998) (mem.) (quotations omitted). Ordinarily, we enforce a statute according to its terms when its meaning is plain on its face, State v. Laclair, 161 Vt. 585, 587, 635 A.2d 1200, 1204 (1993) (mem.), and avoid constructions that render significant parts of a statute pure surplusage. Robes v. Town of Hartford,, 161 Vt. 187, 193, 636 A.2d 342, 347 (1993). Even liberal construction of remedial legislation, like this law, “does not allow us to stretch the language beyond legislative intent.” Elkins v. Microsoft Corp., 174 Vt. 328, 331, 817 A.2d 9, 13 (2002). The majority opinion disrupts and fails to give effect, as we should, to parts A and B of the ABC test as written. See State v. Tierney, 138 Vt. 163, 165, 412 A.2d 298, 299 (1980) (“In construing a statute, this Court considers it as a whole, and, if possible, gives effect to every word, clause and sentence.”). Instead, the majority transforms the unemployment compensation law into different legislation from what was enacted by the Legislature.

¶ 41. Accordingly, I dissent and am authorized to state that Judge Eaton joins in this dissent.

While not addressed in a finding of fact by the Board, it appears to be undisputed that none of the home workers were required to precisely follow the patterns supplied by FOE. One elected to use the pattern, while two did not. Two others had the pattern in mind, but adjusted it to suit their own knitting styles.

The majority cites several eases from other jurisdictions which, like our own, confirm that the unemployment compensation law applies to more than the traditionally recognized employer-employee relationship. These holdings, however, are not in reference to part A, but are based on the entire ABC test. See Stevens, 116 Vt. at 400, 77 A.2d at 848 (declining to reach part A, when employer failed to meet the criteria of parts B and C); Carpet Exch. of Denver, 859 P.2d at 281 (making this distinction clear when it states that “although the definition of employment under the ... Act is broader than the common law master-servant relationship, the freedom from control requirement of [part A] is derived from the common law control test for distinguishing servants from independent contractors.” (citations omitted)). Other jurisdictions agree that “part A is ‘no more than an adoption of the common-law control test,’ which classifies as an independent contractor one who renders services but retains control over the manner in which those services are performed, agreeing only to accomplish results.” Carpet Remnant Warehouse, Inc. v. N.J. Dep’t of Labor, 593 A.2d 1177, 1185 (N.J. 1991) (quoting Comment, Interpretation of Employment Relationship Under Unemployment Compensation Statutes, 36 Ill. L. Rev. 873, 877 (1942)).

“Industrial homework” was defined in New York labor law as the “manufacturing in a home ... with material which has been furnished by an employer, of any article or articles to be returned to the said employer.” Andrews, 13 N.Y.S.2d at 578. “Industrial home work” was defined in Illinois as “the processing in a home ... of any article or articles, the material for which has been furnished by an employer.” Peasley, 44 N.E.2d at 877.