State Department of Employment, Training & Rehabilitation v. Reliable Health Care Services of Southern Nevada, Inc.

Rose, C. J., with whom Becker, J., agrees, dissenting:

After reviewing the record on appeal, I conclude that the Board’s determination that the Providers were “employees” pursuant to NRS 615.082 was supported by substantial evidence. Therefore, I must dissent from the majority’s contrary conclusion. See State, Emp. Sec. Dep’t v. Harich Tahoe, 108 Nev. 175, 177, 825 P.2d 1234, 1236 (1992) (“neither this court nor the district court may substitute its judgment or evaluation of the record developed at the agency level for that of the Board”).

The relationship between Reliable and the Providers is best characterized as employer-employee. Reliable recruits, interviews, and screens each Provider applicant and, if qualified, hires them by sending them out on referrals. Upon hire, Reliable designates the time and location of the Provider’s job and furnishes the Providers with Reliable identification badges, and with workers compensation, general liability, and professional liability insurance. Cf. Santiago v. Phoenix Newspapers, Inc., 794 P.2d 138, 144 (Ariz. 1990) (employer relationship more likely where employer provides tools and a specific area to work). Additionally, Reliable calculates the total hours worked by each Provider and issues them a weekly paycheck. See Trauma Nurses, Inc. v. Board of Review, New Jersey Dep’t of Labor, 576 A.2d 285, 290 (N.J. Super. Ct. App. Div. 1990) (noting that “continuing payment represents some evidence of an employment relationship”). Finally, Reliable controls the work schedule of the Providers, as it may unilaterally decide to “terminate” them by ceasing to refer them to health care facilities. See Santiago, 794 P.2d at 144 (“The *262‘right to fire’ is considered one of the most effective methods of control”) (citations omitted).

The majority insists that the aforementioned characteristics are insufficient to support the Board’s finding under NRS 612.085(1) that Reliable controlled the Providers because Reliable did not control the manner and means of the Providers’ work. Under the majority’s interpretation of NRS 612.085(1), however, the health care facility would likely be deemed the employer because it controlled the manner and means of the Providers’ daily work. Practically speaking, this result is nonsensical because most health care facilities contract with referral agencies to avoid incidental costs associated with having employees, such as unemployment insurance charges. Through this contract with the health care facility, the referral agency steps in the shoes of the health care facility for employee-related liabilities. Likewise, the health care facility acts as Reliable’s agent for the purpose of supervising the daily work of the Providers. See In the Matter of Nurse Care Registry, Inc., 154 A.D.2d 804, 805 (N.Y. App. Div. 1989) (where the referring organization controls billing and collection from clients, the client to whom the individuals are referred acts as an agent of the referral agency). Accordingly, because I am convinced that the health care [Facility acted as Reliable’s agent in supervising the Providers, Reliable exercised sufficient control over the Providers to be deemed their employer pursuant to NRS 612.085(1),

Additionally, I disagree with the majority’s conclusion pursuant to NRS 612.085(2) that the Providers did not work in the usual course of Reliable’s business because the Providers and Reliable performed two distinct services, treating patients and brokering workers. I see no distinction between Reliable’s and the Providers’ business because the Providers’ service — treating patients — is rendered in furtherance of Reliable’s business of brokering temporary health care professionals. See In re Hillman Inv. Co., 131 P.2d 160, 163 (Wash. 1942) (holding that employees worked in the usual course of an entity’s business where their services were rendered in furtherance of it). Indeed, Reliable’s success as a referral agency is integrally dependent upon having Providers to refer to facilities to provide patient care services. In fact, the Providers are the essential core of Reliable’s business because without Providers to refer, Reliable would not profit, and thus would likely cease to exist. See Santiago, 794 P.2d at 145 (considering whether worker was an “integral part of the employer’s regular business”). Accordingly, because the Providers comprise the essential core of Reliable’s business, I conclude that the Providers work in the usual course of Reliable’s business pursuant to NRS 612.085(2).

*263Several important policy considerations guide my interpretation of NRS 612.085(l)-(2). See Keeler v. LIRC, 453 N.W.2d 902, 904 (Wis. Ct. App. 1990) (noting that “factors are not to be mechanically applied, but analyzed in light of the public policy of more fairly sharing the economic burdens of unemployment . . . ”). First, the unemployment statutes are to be liberally construed to effectuate coverage for workers who are economically dependent on others. See Advanced Sports Information, Inc. v. Novotnak, 114 Nev. 336, 339, 956 P.2d 806, 808 (1998); Larson v. LIRC, 516 N.W.2d 456, 461 (Wis. Ct. App. 1994). Thus, only those workers with separately established businesses, who are unlikely to be dependent on others, should be excluded. See id.

Second, referral agencies are in the best position to allocate the costs of unemployment insurance because they not only negotiate the contract rate with each health care facility, but also control the hourly wage paid to each worker. Referral agencies, therefore, can allocate the increased cost associated with unemployment insurance to the facility by increasing the contract rate or to the worker by decreasing the wage paid to each worker. Further, since a referral agency typically profits solely from brokering workers, it should be responsible for allocating the costs of its workers’ unemployment, rather than placing this burden on society.

Accordingly, based on the foregoing analysis, I conclude that the Board’s finding that the Providers were employees was supported by sufficient evidence. I would therefore reverse the order of the district court.