( Buettner )
( Tulsa County - Ronald L. Shaffer )
REVERSED
Ann H. Morris, Tulsa, Oklahoma, For Appellant
Edward E. Evans, Oklahoma City, Oklahoma, For Appellee Oklahoma Employment Security Commission
Opinion
1/ Upon independent review, we find that Carter E. Stucker was an independent contractor performing vehicle repossession services for American Recovery Specialists, Inc. Because he was not an employee, he was erroneously awarded unemployment benefits by the Oklahoma Employment Security Commission. For this reason, we reverse the award of benefits.
2/ Employment status is a jurisdictional question. "In reviewing an order of the Oklahoma Employment Security Commission, the court, whether district court or this court, will not accept as conclusive the finding of fact concerning a jurisdictional question but will weigh the evidence relating thereto and make its own independent findings of fact." Perma-Stone Oklahoma City Co. v. Oklahoma Employment Security Commission, 1954 OK 322, 278 P.2d 543, syllabus by the court at 1.
3/ Stucker's contract was terminated because he "stashed" vehicles and he was involved in two wrecks during the time he was under contract with American Recovery Specialists, Inc. American Recovery Specialists contended that Stucker was an independent contractor and, therefore, not covered by the Oklahoma Employment Security Act of 1980, 40 O.S. 1-101 et seq. Even if he were so covered, American Recovery Systems claimed he was not eligible for benefits because his contract was terminated for misconduct.1
4/ The Oklahoma Employment Security Commission (OESC) initially determined that Stucker was an employee, not an independent contractor, of American Recovery Specialists, Inc. (ARS) because he operated under ARS's license. ARS appealed that determination and after a hearing by the Appeal Tribunal, OESC decided that Stucker was an employee, citing that Stucker used his own vehicle, but that ARS told him what vehicles to repossess; that he sometimes went with other employees to repossess vehicles and that he worked under ARS's license. The decision further stated that Stucker was paid on a weekly basis and that he had to report to the office most mornings. Finally, the decision found that Stucker did not have business cards or advertise that he would perform repossession services for other people. ARS appealed that decision to the Board of Review of the Oklahoma Employment Security Commission which affirmed the order of the Appeal Tribunal. ARS next appealed the decision to the District Court of Tulsa County which sustained the Board of Review's order that Stucker was an employee, not an independent contractor, and that he was not discharged for misconduct.
5/ We have independently reviewed the facts and conclude that Stucker was an independent contractor and, therefore, not eligible for benefits. "The issue of whether an employment relationship exists is jurisdictional and a question of law." Christesson Reporting Service v. Oklahoma Employment Security Commission, 1995 OK CIV APP 92, 903 P.2d 336, 337, citing Perma-Stone Oklahoma City Co., 278 P.2d at 545.
6/ The law presumes a worker is covered by the Act, unless it is shown, to the satisfaction of the Commission that:
"(a) such individual has been and will continue to be free from control or direction over the performance of such services, both under the contract of hire and in fact; and
"(b) such individual is customarily engaged in an independently established trade, occupation, profession, or business; or
"(c) such service is outside the usual course of the business for which such service is performed and that such service is performed outside of all the places of business of the enterprise for which such service is performed."
SEE 40 O.S. 1-210 (14) (1998).
7 / The evidence which leads us to our conclusion, that is, that Stucker was an independent contractor, includes:
"1. Stucker signed an Independent Contractor Agreement, which, among other terms, provided that payment was by the job and that the independent contractor was responsible for his own costs. It further required the contractor to report and pay his own taxes. It stated that ARS would pay liability insurance but that the driver was to pay his own comprehensive insurance.
"2. Stucker signed an addendum to the contract in which he agreed to keep proprietary information, such as client lists, confidential from others in the industry for whom he may work while under contract to ARS.
"3. Stucker received no training by or direction from ARS in the performance of the repossessions.
"4. Stucker could refuse assignments which were given to different drivers on a rotation basis. ARS did not require the repossession be performed in any particular manner or during a particular time. Stucker controlled his hours of working and methods used.
"5. Stucker provided his own vehicle, lift, and tools, such as a lock-pick kit."
The countervailing evidence is:
"1. Stucker brought vehicles he repossessed back to the ARS yard, inventoried them and did his paperwork at the office.
"2. ARS issued a radio to Stucker and he testified that he received assignments by telephone, radio and cell phone. He further testified that he was on-call for ARS 247. He stated he did not work for other companies.
"3. He "ran under ARS's license."2
"4. Stucker testified that he had to give notice if he wanted a day off and that ARS made him go to Oklahoma City for his vehicle inspection on a day which he had requested not to work because his parents were coming from Maine to visit.
"5. ARS paid mileage for repossessions outside the Tulsa area.
"6. He did not have telephone listings, business cards or advertisements of his services for vehicle repossession."
8/ The crucial question in determining employment status is the element of control. We find the facts in this case similar to those of the court reporters in Christesson Reporting Service, Id., in which the appellate court found the reporters to be independent contractors. Cristesson was a business which booked court reporting jobs either among its associated reporters or for an individual reporter, if requested. The court reporters could refuse any assignment and controlled the hours they worked. They also controlled their time-off and scheduling. They chose the type of shorthand to use. Any special directions were given by the attorney or party for whom they were reporting. The reporters billed the attorney or party, but used invoices provided by Christesson. Christesson collected the payments and retained a percentage for its services (administrative, booking and promotional). The reporters provided their own transportation and equipment. The reporters were paid by the job. They paid their own self-employment taxes. They were free to advertise and work outside the Christesson booking system, but they paid it a percentage of those jobs too. They trained for their jobs independently of Christesson Reporting Service.
9/ In this case, the countervailing evidence described above does not, for the most part, support the control and direction necessary for employee status. Stucker received information necessary for his repossession assignments from ARS, at times over a radio supplied by ARS, and the vehicles were delivered to ARS's yard. These are, at best, neutral facts because an independent contractor must receive information sufficient to do the job, and the results of the job are provided to the hirer. And, even though Stucker did not work for other repossession companies during the 3 month period at issue here, there is no dispute that he was allowed to do so under his contract. Likewise, the failure to have business cards or advertising, or a telephone listing does not appear to be unusual in the repossession industry. Stucker's paperwork could have been done anywhere, so the fact that ARS made space available as a convenience to the repossessors does not appear to be an important factor.
10/ Based on the law applied to the facts, we hold, as a matter of law, that Stucker was an independent contractor and that the Oklahoma Employment Security Commission lacked jurisdiction over this matter. For that reason, we REVERSE the award of unemployment benefits.
GARRETT, J., concurs; HANSEN, C.J., dissents.
(FOOTNOTES):
1 Because of our finding that OESC lacked jurisdiction of this matter, it is unnecessary for us to address whether Stucker's behavior was "misconduct" as defined by the Act.
2 ARS's president explained: "Right, if we like it or not, the Department of Public Safety requires repossession companies to have a license. We are allowed to bring in independent contractors and they lease their vehicles to American Recovery Specialist and then the Department of Public Safety issues a wrecker license to that individual vehicle."