BOARD OF APPEALS
DECISION
DECISION NO: 1501-BH-81
DATE: 11-3-81 |
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| CLAIMANT: Richard Nemerov |
APPEAL NO.: 17205 |
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| EMPLOYER: Ken & Ray's Service Center |
L.O. NO: 1 |
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APPELLANT: Ken & Ray's Service Center |
Issue: Whether the Claimant is eligible for benefits pursuant
to Section 3(b) of the Law; whether Claimant was performing
services in employment within the meaning of Section 20(E)(6)
of the Law; whether all of the Claimant's remuneration
was wages within the meaning of Section 20(n) of the Law.
- NOTICE OF RIGHT OF APPEAL TO COURT -
YOU MAY FILE AN APPEAL FROM THIS DECISION IN ACCORDANCE WITH
THE LAWS OF MARYLAND. THE APPEAL MAY BE TAKEN IN PERSON
OR THROUGH AN ATTORNEY IN THE SUPERIOR COURT OF BALTIMORE
CITY, OR THE CIRCUIT COURT OF THE COUNTY IN MARYLAND IN
WHICH YOU RESIDE.
THE PERIOD FOR FILING AN APPEAL EXPIRES AT MIDNIGHT Dec. 3, 1981.
APPEARANCES
For the Claimant:
Richard Nemerov - Claimant |
For the Employer:
Kenneth Wittelberger President
Rudolph Tighe, Jr. Attorney
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EVIDENCE CONSIDERED
The Board of Appeals has considered all of the evidence presented,
including the testimony offered at the hearings. The Board
has also considered all of the documentary evidence introduced
into this case, as well as Employment Security Administration's
documents in the appeal file.
FINDINGS OF FACT
The Claimant worked for Ken and Ray's Service Center from April of
1980 through June of 1980. He earned $2,816.53 delivering
typewriters for Ken and Ray's on a piecework basis.
The Claimant
initially found this job by responding to an ad in the
newspaper asking for a deliverer of office machines. According
to the ad, this was a part-time job with a minimum guaranteed
income of $20.00 per day.
The Claimant worked under the direction of appellant delivering repaired
office machines to their customers. The Claimant was given
a list each day of customers. He had to make pick ups
and deliveries at each of these addresses. The appellant
prepared the list on the appellant's own stationary. The
price for the delivery of each item was set by the appellant.
The general route for the deliveries was set by the appellant,
but the exact route followed was at the discretion of
the Claimant. At the end of each day, the Claimant was
required to bring back the machines requested and the receipts collected.
The Claimant did not give his own receipts for office machines picked
up at the appellant's place of business. He did not collect
money on his own behalf, nor did he sign receipts on his
own behalf when he picked up the machines or delivered
to customer's premises. When he did sign receipts, he
signed them on behalf of Ken and Ray's Service Center,
not on behalf of himself.
The delivery of repaired office machines is part of the business of
the appellant. Delivery is an advertised service of the appellant.
The Claimant also performed some services for the appellant by calling
overdue accounts in an attempt to obtain an agreement
for collection of these accounts. He received no remuneration
for this, unless the collection resulted in an additional
delivery, which he was paid the usual delivery pay.
The Claimant had delivered items for a Richmond, Virginia firm on a
salaried basis in the past. Since his employment at en
and Ray's Service Center, he has delivered items for other
firms on an hourly basis. The Claimant has never held
himself out to the public as a delivery service, nor has
he ever, in fact, operated a delivery service for anyone.
The appellant did not complete tax forms, nor did it deduct taxes, social
security or other deductible items from the Claimant's
total remuneration. This was done in the belief that the
Claimant was an independent contractor, not an employee.
Of the total remuneration paid to the Claimant for services
during this period, a certain amount was attributable
directly to gasoline expenses incurred by the Claimant
in the course of his deliveries. The exact amount is unknown.
CONCLUSIONS OF LAW
The Claimant performed services in employment within the meaning
of Section 20(g)(6) of the Maryland Unemployment Insurance Law.
Under that Section of the Law, services performed for an individual
for wages or under any contract of hire shall be deemed
employment, irrespective of whether the common law relationship
of master and servant exists, unless all three of the
following factors are found. First, the individual performing
services must be free from control or direction on the
part of the employer. Second, the service must be either
outside the usual course of business for the employer,
or it must be performed outside of all the places of business
of the employer. Third, the individual must be customarily
engaged in an independently established trade, occupation,
profession or business of the same nature as that involved
in the services in question. All three of these conditions
must be met. Warren v. Board of Appeals, Maryland Department
of Employment Security, 226 Md. 1 (1961); Blue Bird Cab
v. Maryland Department of Employment Security, 251 Md. 458 (1968)
In this case, the appellant has failed to meet any one of
these three tests. The appellant clearly had control or
direction over the Claimant's activities. He was required
to report at a certain time each day; he was required
to deliver to certain addresses on each day; and remuneration
was set by the appellant. In addition, the services performed
by the Claimant were part of the usual course of business
for the appellant. The fact that the service was performed
outside of the place of business of the appellant is irrelevant
here, since the service in question was a delivery service.
Finally, there is no evidence whatsoever that the Claimant
was customarily engaged in an independently established
trade or occupation The Claimant had never delivered for
any other customers or employers on any other than an hourly basis.
The fact that the appellant considered the Claimant to be
an independent contractor, and did not deduct the various
taxes which should be deducted from an employees' remuneration,
does not affect the outcome of this case.
The Board finds, however, that some of the remuneration received
by the Claimant was for expenses incurred in the course
of his employment. Under Section 20(n) of the Law, such
expense remuneration is not wages within the meaning of
the Maryland Unemployment Insurance Law. Therefore, the
Board is remanding this case to the Claims Examiner for
a determination of the amount of covered wages received
by the Claimant during the period in question. In making
this determination, the Claims Examiner should deduct
any money paid to the Claimant' which is attributable
solely to his gasoline expense. In making this calculation, the Claims Examiner should note that
the burden of proof is upon the appellant to establish which part of that
remuneration was solely due to gasoline expenses.
DECISION
The Claimant was employed by Ken and Ray's Service Center
within the meaning of Sections 20(g) and 3(b) of the Maryland
Unemployment Insurance Law. His wages should be considered
covered wages and included in the calculation of his eligibility
for unemployment insurance benefits.
The decision of the Appeals Referee is affirmed. This case
is remanded to the Claims Examiner for a calculation of
the wages paid in covered employment. In making this calculation,
the Claims Examiner should deduct from the total remuneration
the amount which the appellant can show to be due solely
to gasoline expense reimbursement.
Thomas W. Keech, Chairman
Hazel A. Warnick, Associate Member
K:W
raf
DATE OF HEARING: October 22, 1981
COPIES MAILED TO:
CLAIMANT
EMPLOYER
UNEMPLOYMENT INSURANCE - BALTIMORE
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