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BOSTON BICYCLE COURIERS,
INC. vs. DEPUTY DIRECTOR OF THE DIVISION OF
EMPLOYMENT
AND TRAINING &
another. [FN1]
No. 99-P-1433.
August 29, 2001. -
November 18, 2002.
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Present: Laurence, Mason, & Berry, JJ.
Employment Security, Employment relationship,
Exemption, Judicial review. Administrative Law, Substantial
evidence.
Civil action commenced in the Boston Municipal Court Department on
November 14, 1997.
The case was considered by Annette
Forde, J.
Susan Paulson, Assistant Attorney General, for
Deputy Director of the Division of Employment and Training.
Michael B. Cosentino for the plaintiff.
BERRY, J.
This case concerns the liability of Boston Bicycle Couriers, Inc.
(BBC), for contributions to the State unemployment compensation fund
under G.L. c. 151A, the Massachusetts Employment and Training Law
(Act). See G.L. c. 151A, §§ 13-14. BBC contends that it was
exempt from
contributions to the fund because delivery couriers working for BBC,
such as Anthony DiMare (the claimant for unemployment benefits in this
case), were independent contractors. Therefore, BBC asserts the company
fell within the independent contractor exemption set forth in G.L. c.
151A, § 2. [FN2], [FN3]
1. Procedural and factual background. The case began when
DiMare, a courier, left his position at BBC and applied to the Division
of Employment and Training (DET) for unemployment benefits. While this
unemployment application was pending, the DET status department, acting
on its own motion, commenced an investigation of BBC. See G.L. c. 151A,
§ 12. The purpose of the DET investigation
was to reach a status determination
concerning whether BBC was subject to the Act's provisions for
mandatory contributions to the unemployment compensation fund in
connection with wages paid to employees.
Following proceedings at several levels of administrative review, a
board of review (board) of the DET determined that BBC had not met its
burden of proof on the tripartite elements of the independent
contractor exception in § 2. [FN4] The board, accordingly, held
that
"the services performed by the claimant [DiMare], as well as others
performing services in similar circumstances, are deemed to be in
employment," and subject to the Act. By this status determination, BBC,
among other requirements, would be responsible for contributions to the
unemployment compensation fund based on the wages BBC paid to the
couriers. [FN5] BBC filed an appeal with the Boston Municipal Court.
[FN6] See G.L. c. 151A, § 42. A judge of that court reversed the
determination of the board that BBC was subject to the Act. The board
then filed this appeal. We reverse.
A detailed description of the facts in the administrative record
concerning the nature of DiMare's activities in working for BBC and the
terms and conditions of a contract that BBC had drafted and provided
for execution by drivers, such as DiMare, is reserved for that part of
the analysis addressed to BBC's contention that
DiMare's activities were such as
to render him an independent contractor. At this point, it will suffice
to note that BBC is in the business of providing same-day pick-up and
delivery services on an on-call basis. The pick-up items are generally
letters and packages to be delivered between offices. BBC engages
approximately twelve drivers for these courier services, of which
DiMare was one.
2. The legal framework for the § 2 independent contractor
exemption. The
trigger for an employer's contribution liability to the unemployment
compensation fund under the Act is whether there exists an employment
relationship between the employing unit and an individual performing
services. The term "employment" under the Act is inclusive, [FN7] and
the Act is of broad reach. [FN8] To that end, the Act carves out
exceptions, limited in number and scope.
The provision for an independent contractor exemption from the Act is
set forth in G.L. c. 151A, § 2. See note 2 for the pertinent text
of §
2. In 1971, the Legislature dramatically altered the configuration of
the § 2 exemption in two important respects. See St.1971, c. 940,
§ 2.
First, the amendment expressly rejected the previously applied--and
potentially more open ended-- standard of employment that rested on
common-law analysis. The effect of this first part
of the amendment to § 2 was that an
employer would be subject to the Act "irrespective of whether the
common-law relationship of master and servant exists." Ibid.
Thus, notwithstanding that the working relationship could be considered
to be one of independent contract under common law, by the § 2
statutory standard, the worker may still be deemed in employment for
purposes of the Act. [FN9] Second, the 1971 amendment added two new
elements in § 2(b ) and (c ), which increased an
employer's burden of proof and more narrowly circumscribed the kind of
activities deemed to satisfy the independent contractor exemption. The
three elements of proof, as amended and now set forth in § 2(a
), (b ), and (c
), require that, in order to qualify for the independent contractor
exemption, the employer must prove that the worker (a) is free from
direction and control by the employing unit; (b) performs services
outside the usual course of, or places of business of, the employing
unit; and (c) the worker--albeit performing services of the same nature
as the employing unit--is engaged in an independently established
trade, occupation, profession or business wholly apart from the
employing unit. See Silva v. Director of the Div. of Employment
Security, 398 Mass. 609, 613-614 (1986). The elements are
conjunctive. Ibid. This three-part test for the independent
contractor exemption is commonly known as the "ABC" test. [FN10], [FN11]
The
board concluded that BBC had failed to meet its burden with respect to
all three statutory requirements in § 2(a )-(c
), that is, all three segments of the ABC test. However, given the
conjunctive burden under § 2, failure of proof on any one of
subsections (a ), (b ), or (c ) disqualifies an
employer from the § 2 exemption. In this case, because the weight
of
evidence in the case record implicated the § 2(c )
element, we will focus upon that exemption to determine whether the
board decision that BBC failed to satisfy the § 2(c )
requirements meets the applicable legal and evidentiary criteria for
G.L. c. 30A appellate review. If the § 2(c )
aspect of the board decision stands, we need not address the other
conjunctive requirements in § 2 (a )
and (b ).
In review of the board's determination concerning § 2(c ),
we apply the overarching principle of administrative law, that "[i]f
the findings of the board are supported by substantial evidence, and if
there is no error of law, the court must affirm the board." See Silva,
398 Mass. at 611. See also Tri-County Youth Programs, Inc. v.
Acting Deputy Director of the Div. of Employment & Training,
54 Mass.App.Ct. 405, 407-408 (2002). Moreover, a court will afford
deference to the function of the board in employment security cases. A
reviewing court will accord "due weight to the experience, technical
competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." G.L.
c. 30A, § 14(7). With respect to such deference, to be noted is
the
provision in § 2 that workers shall be deemed employees "unless
and
until it is shown to the satisfaction of the commissioner" that the
exemption applies. G.L. c. 151A, § 2.
To meet its burden of proof under § 2(c ) that DiMare, as
one of its drivers, was "customarily engaged in an independently
established trade, occupation, profession or business of the same
nature as that involved in the service performed," BBC was required to
adduce evidence to establish that (1) DiMare customarily engaged in an
independent courier delivery service on his own; (2) DiMare's courier
delivery service operated wholly independently of his work for BBC; and
(3) DiMare's business was established and running. This requirement is
most commonly referred to as the "independent trade or business
requirement."
A significant amount of case law construing identical or similarly
worded provisions to § 2(c
) has been developed in other jurisdictions. [FN12] A common
methodology for review of this independent trade or business
requirement is the so-called "proprietary interest test." [FN13] As
developed in the case law, the formulations for the proprietary
interest test provide a flexible standard that allows for comprehensive
review of the working relationship based on the
totality of relevant facts and
circumstances, adjusted to the particularities of the performance of
service associated with various industries. No individual factor is a
prerequisite to a finding of an independently established business. See
Vendx Mktg. Co., Inc. v. Department of Employment,
122 Idaho
890, 896 (1992). Rather, the relevancy and importance of specific
indicia of proprietary interest will vary by the nature of the services
provided in the working relationship and the industry in which the
services are provided. See Larsen v. State Dept. of Employment,
106 Idaho 382, 383-384 (1984). The essential determination is whether
"the worker is an entrepreneur and service is performed by him or her
in that capacity." Hardman, Unemployment Compensation and Independent
Contractors: The Motor Carrier Industry as a Case Study, 22 Transp.
L.J. 15, 29 (1994).
More imagistically described, the proprietary interest test seeks to
discern whether the worker is wearing the hat of an employee of the
employing company, or is wearing the hat of his own independent
enterprise. To establish the latter and qualify under the § 2(c
) independent contractor standard, the insignia must be that of a
freestanding, independent entrepreneurial business in which the worker
has a proprietary interest. Recurring factors in the analyses in other
jurisdictions tending to show a proprietary interest in an
independently established trade or business include, but are not
limited to that: (1) the individual worker is free
both to
operate an independent enterprise and to perform services without
hindrance from the employing unit; (2) the independent enterprise was
created and exists separate and apart from the worker's relationship
with the particular employing unit; (3) the worker's independent
enterprise is not interconnected with, and is not dependent in any way
upon, engagement by the particular employing unit, or other companies
engaged in the subject industry; and (4) the worker's independent
enterprise would survive as an ongoing business entity, notwithstanding
the termination of the relationship with the employing unit.
3. Analysis. In accord with the prevailing analysis in
this host of cases, we accept, and apply, the proprietary interest test
as most consistent with the stringent requirements of § 2(c
).
In this case, to establish a proprietary interest and to meet the
burden of proof on the independent trade or business requirement of
§ 2(c
) (the prong "C" of the ABC test), BBC would have had been required to
prove that DiMare performed other courier delivery services on his own
behalf that were completely apart from those performed for BBC, and
that this other separate courier delivery work exhibited economic
independence such that DiMare's business would continue as an ongoing
enterprise, notwithstanding the end of work for BBC. The board found
BBC did not meet these standards. Based on our review of the
administrative record, we conclude that this administrative determination was
supported
by substantial evidence. [FN14] The record demonstrated not
independence, but rather an intertwining of, and an interdependent
working relationship between a driver, such as DiMare, and BBC as the
employing unit. Nor was there a freestanding entrepreneurial
enterprise. [FN15]
On the question of a freestanding entrepreneurial enterprise in which
DiMare purportedly had a proprietary interest, BBC did not make an
adequate showing that DiMare held himself out as an independent
businessman performing courier services for any community of potential
customers. See Lewiston Daily Sun v. Unemployment Ins. Commn.,
733 A.2d 344, 347 (Me.1999). BBC's evidence did not show that DiMare
was able to operate a delivery business without the benefit of his
relationship with BBC. Compare AFM Messenger Serv., Inc. v. Department
of Employment Security,
198 Ill.2d 380, 401-402 (2001). Indeed, in this case, so far as appears
from the record, when DiMare's relationship with BBC terminated, so did
his work in the delivery business. There was also no evidence that
DiMare had his own clientele, utilized his own business cards or
invoices, advertised his services or maintained a separate place of
business and telephone listing. See Department of Labor, Lic. &
Regulation v. Fox, 346 Md. 484, 499 (1997); Appeal of
Work-A-Day of Nashua, Inc., 132 N.H. 289, 292 (1989). Simply put,
there was no evidence that DiMare had a proprietary
interest in a going concern which could have been sold or transferred.
To the contrary, the evidence manifested DiMare's intertwined and
dependent role as worker, rather than as independent entrepreneur. BBC
provided DiMare, pursuant to a rental agreement, with both a radio and
a pager, essential equipment in the on-call delivery business. See Appeal
of Work-A-Day of Nashua, Inc.,
132 N.H. at 292 (investment in capital is one of the indicia of an
independently established business). BBC, moreover, voluntarily
purchased workers' compensation insurance for all of the delivery
drivers. The risk of loss for nonpayment of the delivery charges fell
squarely on BBC. See Department of Labor, Lic. & Regulation v.
Fox, 346 Md. at 497, 500; Larson v. Labor & Indus. Review
Commn., 184 Wis.2d 378, 390 n. 6 (1994).
Further reflecting the dependent intertwining between BBC and its
drivers, the services provided by DiMare were an integral part of BBC's
business. Indeed, without delivery drivers like DiMare, BBC could not
operate--a factor supporting the finding that DiMare was an employee of
BBC. See Larsen v. State Dept. of Employment,
106 Idaho at 384. BBC set the commission rates paid to drivers, such as
DiMare, and set the prices charged for delivery services. BBC's
customers contracted with BBC for delivery services, and not with particular drivers, such as DiMare. BBC guarded
its customer list through nonsolicitation and noncompetition
contractual provisions. Finally, BBC retained the right to terminate a
driver and end the relationship for any reason upon thirty days notice.
See Matter of BKU Enterprises, Inc., 513 N.W.2d 382, 388
(N.D.1994) (the right to terminate at will without liability is
strongly suggestive of an employee-employer relationship). [FN16]
To counter the weight of this evidence reflecting employment subject to
the Act, BBC relies heavily on language contained in a document styled
as an agreement "between the client [BBC] and independent contractor."
This document was provided by BBC, which required all drivers to sign
it. While a contract expressed in terms of engagement on an independent
contractor basis may be relevant to a status determination, the
existence of such a contract is not controlling. In this regard, the
Legislature, presumably aware of the possibility of artful contract
drafting, included language in § 2, that requires the employer to
prove
the absence of control and direction over the worker "both under his
contract for the performance of service and in fact
" (emphasis supplied). This statutory language directs DET and a
reviewing court to look beyond the four corners of the agreement to the
actual working relationship. [FN17] So viewed, boilerplate language
replete with designations and labels incorporated into form contracts
by the employing unit may not be used as a
subterfuge to avoid liability to the
unemployment compensation fund when the agreement lacks any real
foundation in the facts of the actual working relationship.
In the final analysis, the question whether an employer has satisfied
the statutory requirements of § 2(c
), and proved that a worker is engaged in providing services of the
same nature in a freestanding, independent business enterprise in which
the worker has a proprietary interest must be based upon a
comprehensive analysis of the totality of relevant facts and
circumstances of the working relationship. No one factor is
outcome-determinative. Here, the totality of the evidence of the
working relationship between BBC as the employing unit and DiMare as
the worker failed to meet the criteria of § 2(c ). [FN18]
4. Conclusion.
The board's finding that BBC did not
satisfy the statutory requirements for the § 2 independent
contractor
exemption was supported by substantial evidence and was not error of
law. The judgment of the Boston Municipal Court is reversed and the
case is remanded for the entry of a judgment affirming the decision of
the board.
So ordered.
1. Anthony DiMare.
2. General Laws c. 151A, § 2, as amended by St.1990, c. 177,
§ 250, provides, as herein relevant, that
"[s]ervice performed by an individual ... shall be deemed to be
employment subject to this chapter irrespective of whether the
common-law relationship of master and servant exists, unless and until
it is shown to the satisfaction of the commissioner that--
3. The independent contractor exemption, which implicates the financial
responsibilities of an employing unit under the Act has been the
subject of extensive analysis in the case law of other jurisdictions
with similar unemployment compensation statutes. See case references
and authorities, infra ). The exemption, however, has not been
the subject of such substantive review and analysis in Massachusetts
precedent.
4. The procedural history of the administrative proceedings may be
summarized as follows. Upon conclusion of its investigation, the
Division of Employment and Training (DET) status determination section
determined that the services DiMare performed as a driver for BBC
constituted employment subject to the provisions
of the Act. BBC then requested a hearing to challenge this status
determination. See G.L. c. 151A, §§ 12, 39(b
). Following that hearing, the DET review examiner (who was the deputy
director) overturned the determination of the status department and
held that the terms and conditions of DiMare's work rendered him an
independent contractor. The next procedural step involved further
review before the DET board of review. See G.L. c. 151A, § 40.
Following the allowance of an application for such review, the board
remanded the case to the deputy director to make further subsidiary
findings of fact in response to specific questions posed by the board.
Thereafter, the board adopted these consolidated findings. However, the
board concluded that the review examiner's legal determination that
DiMare was an independent contractor was not supported by the facts
found, and constituted error of law and held that BBC had not met the
§
2 exemption and was subject to the Act. BBC's appeal to the Boston
Municipal Court under G.L. c. 30A followed.
5. In addition, BBC would also be required to make unemployment health
insurance contributions to the Medical Security Trust Fund, which
provision applies unless an employer has five or fewer employees. See
G.L. c. 151A, § 14G.
6. The DET case began with DiMare's
application
for unemployment benefits, and he was, therefore, properly deemed a
party. See G.L. c. 151A, § 12. When DiMare's claim for
unemployment
benefits was denied pursuant to G.L. c. 151A, § 25(e ),
because
he had voluntarily left his job. DiMare failed to appeal from this
adverse determination, the determination became final, and, in effect,
DiMare's case ended. See G.L. c. 151A, § 39(b ); Conservation
Commn. of Falmouth v. Pacheco,
49 Mass.App.Ct. 737, 741-742 (2000). However, the independent status
investigation of BBC commenced by DET on its own initiative under
§ 12,
remained open. In these status proceedings, DiMare was only a nominal
party, and the real parties in interest were BBC and the board. Thus,
it was BBC's appeal that brought the case before the Boston Municipal
Court. Notwithstanding that DiMare's claim was out of the litigation
picture, and no appeal had been preserved on his claim, the judge
addressed the merits of DiMare's claim to unemployment benefits. That
issue was not properly before the court. However, we need not speak to
the point further because the same result obtains in that the judge's
decision that DiMare was not entitled to unemployment benefits is in
accord with the already final administrative determination to the same
effect.
7. Employment is defined in pertinent part as, "service ... performed
for wages or under any contract, oral or written, express or implied,
by an employee for his employer...." G.L. c.
151A, § 1(k ).
8. In light of the Legislative purposes underlying the Act, "[t]he
unemployment compensation statute itself directs that G.L. c. 151A
'shall be construed liberally in aid of its purpose, which purpose is
to lighten the burden which now falls on the unemployed worker and his
family.' " Still v. Commissioner of the Dept. of Employment &
Training, 423 Mass. 805, 809 (1996), quoting from G.L. c. 151A,
§ 74.
9. Given this rejection of the common law analysis, cases cited by BBC,
such as McDermott's Case, 283 Mass. 74 (1933), that utilize
such a common-law analysis are inapposite, as are cases such as Nationwide
Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992), and Speen
v. Crown Clothing Corp.,
102 F.3d 625 (1st Cir.1996), cert. denied, 520 U.S. 1276 (1997), which
draw on wholly distinguishable statutes, e.g., the Federal Employee
Retirement Income Security Act (ERISA), 29 U.S.C. § 1140, which
has no
textual connection to the specific statutory terms of § 2.
10. Some States have modified the traditional three-tier approach of
the ABC test. See Cotnoir, Employees or Independent Contractors: A Call
For Revision of Maine's Unemployment Compensation "ABC Test," 46 Me.
L.Rev. 325, 347-348 (1994). Other States have
abandoned the ABC test in favor of a twenty- factor common-law
approach. See Tasters Ltd., Inc. v. Department of Employment
Security, 863 P.2d 12, 17, 22-27 (Utah App.1993); Matter of BKU
Enterprises, Inc., 513 N.W.2d 382, 384-385 & nn. 1-2
(N.D.1994); Stover Delivery Sys., Inc. v. Division of Employment
Security, 11 S.W.3d 685, 691-698 (Mo.App.1999).
11. See generally Hardman, Unemployment Compensation and Independent
Contractors: The Motor Carrier Industry as a Case Study, 22 Transp.
L.J. 15, 24-25 (1994) ("[T]he majority of the states follow the ABC
test.... In applying this test, the service engager has the burden of
proof; and all three prongs of the test must be met") (footnotes
omitted). The note further describes the departure from common-law
standards for the employer-employee relationship and the stricter
standards that an employer must meet. "While under the common-law test,
the issue of control is the dominant factor; and the lack of control
may be an overwhelming consideration in the classification
determination. This is not the case if the ABC test is involved. It
carries no more weight than any of the other factors which are to be
considered." Id. at 26 (footnotes omitted).
12. See Barb's 3-D Demo Serv. v. Director, Ark. Employment
Security Dept., 69 Ark.App. 350, 353-356
(2000); AFM Messenger Serv., Inc. v. Department of Employment
Security, 198 Ill.2d 380, 397-398 (2001); Hasco Mfg. Co. v.
Maine Employment Security Commn., 158 Me. 413, 414-415, 418-419
(1962); Koontz Aviation, Inc. v. Labor and Industrial Relations
Commn., 650 S.W.2d 331, 332, 334 (Mo.App.1983); Standard Chem.
Mfg. Co. v. Employment Security Div. of Mont. State Dept. of Labor
& Indus., 185 Mont. 241, 247-252 (1980); Weiss-Lawrence,
Inc. v. Riley, 100 N.H. 41, 45-46 (1955); Revlon Serv., Inc.
v. Employment Div., 30 Or.App. 729, 734-735 (1977); Lake
Preston Hous. Corp. v. South Dakota Dept. of Labor, 587
N.W.2d 736, 738-739 (S.D.1999).
Many States have codified guidelines and lists of factors to assist
employers evaluating whether a worker is engaged in an independently
established business. See, e.g., Carpetland U.S.A., Inc. v.
Illinois Dept. of Employment Security, 201 Ill.2d 351 (2002)
(applying Ill. Admin. Code tit. 56, § 2732.200[e] [1990] ); Department
of Labor, Lic. & Regulation v. Fox,
346 Md. 484, 499-502 (1997) (applying Md. Regs.Code tit. 9, §
32.01.18(B)(3) [c] ); Or.Rev.Stat. § 670.600(8) (2001); Wis. Stat.
§
108.02(12)(b)(2) (1997). Massachusetts is not one these States.
13. The proprietary interest test has its origins in language appearing
in Life & Cas. Ins. Co. of Tenn. v. Unemployment
Compensation Commn. of Va., 178 Va. 46 (1941). "We think that it is
elemental that one engaged in an independent
enterprise, business or profession has
a proprietary interest therein to the extent that he can operate it
without hindrance from any individual or force whatsoever. These agents
have no business to which they have a right to continuity. They have
nothing they can sell or give away. All they have is subject to
cancellation and destruction upon severance from the company's service.
The contract may be terminated by the company at any time without
liability on its part for damages for breach of contract--a fact which
negatives the existence of an independent relationship." Id. at
55-56.
14. The evidence indicated that, before his BBC engagement, DiMare
worked in an entirely different field. While BBC states that drivers
were permitted to work for other courier companies, BBC presented no
evidence that DiMare actually provided delivery services for anyone
other than BBC during or after his work for BBC, as would be expected
of a true entrepreneur engaged in a permanent, lasting delivery
services business. See Veterans Servs., Inc. v. Labor & Indus.
Relations Commn. of Mo., 861 S.W.2d 781, 785 (Mo.App.1993).
15. See generally Asia, Employment Relation: Common-Law Concept and
Legislation Definition,
55 Yale L.J. 76, 87-88 (1945). "The third [C] test ... appears to be at
once the most radical departure from common-law criteria and the most
relevant of the three tests to the purposes of the unemployment compensation program. In determining the point
between the clearly servant status and the self-employed class at which
the line of coverage for unemployment insurance is to be drawn, it
seems most appropriate to distinguish between the person who pursues an
established business of his own, who is not ordinarily dependent upon a
particular business relationship with another for his economic
survival, and other persons who are dependent upon the continuance of
their relationship with a principal for their economic livelihood.
[This C test] ... depart[s] from the technical 'independence' of the
common-law independent contractor and seem[s] to require that the
individual performing services be engaged in a trade, occupation,
profession, or business which is established independently of the
particular connection he may have from time to time with certain
principals.... The 'C' test, in summary, seems to draw the line of
demarcation on an economic basis, so as to include within the Act those
who perform services for an entrepreneur and who are not themselves
acting as entrepreneurs in that connection in the pursuit of an
independently established business, trade, or profession." Ibid.
16. This case is very close to the facts in AFM Messenger Serv. Inc.
v. Dept. of Employment Security, supra.
In that case, the Illinois Supreme Court held that "evidence did not
demonstrate that the drivers were able to operate their 'delivery
businesses' without the benefit of a relationship with AFM,
or another messenger service company like
AFM. AFM procured the customers; AFM set the delivery prices; AFM
provided the delivery tickets to the customers; AFM made the delivery
assignments; AFM billed the customers; AFM set the commission rate; AFM
paid the drivers. AFM also retained the right, under the parties'
written agreement which AFM supplied, to terminate their relationship
at any time. Thus, a driver's 'business' was not established
'independently' of AFM. Rather, a driver's business existed only by
reason of the driver's employment with AFM, which was subject to
termination, at which time the driver would be unemployed." Id.
at 401-402. Similar facts exist with respect to the working
relationship between BBC and DiMare. Accord, Koontz Aviation, Inc.
v. Labor & Industrial Relations Commn., supra
at 334 (similar analysis applied to baggage delivery drivers determined
not to be independent contractors for purposes of the Missouri
Employment Security Act). See Matter of CDK Delivery Serv., Inc.,
151 A.D.2d 932, 932- 933 (N.Y.App.Div.1989) (on substantially similar
facts to those presented here, affirming decision that employment
relationship existed between package delivery company and its drivers).
17. On this point, see generally Matter of BKU Enterprises, Inc.,
513 N.W.2d at 387; AFM Messenger Serv., Inc., 198 Ill.2d at 397.
18. BBC also challenges the board's
determination
on the basis that on occasion DiMare hired another individual to assist
with pick-ups and deliveries. In this case, even if this one factor
that tends to reflect independent contractor status had been proved
(BBC did not offer corroborating evidence on this claim), this claim as
a single buoy would still not stem the tide of the other much stronger
current in the evidence which showed DiMare to be an employee. Compare Electrolux
Corp. v. Commonwealth of Pa., Dept. of Labor & Indus., Bureau of
Employer Tax Operations, 705 A.2d 1357, 1361 (Pa.1998).
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