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05/14/93 PAUL DESFOSSES v. STATE IDAHO

Filed: May 14, 1993.

PAUL DESFOSSES, EMPLOYER A/C/#0001445707, CLAIMANT-APPELLANT,
v.
STATE OF IDAHO, DEPARTMENT OF EMPLOYMENT, RE: KATHLEEN ANDERSON, SSN 518-46-XXXX, DEFENDANT-RESPONDENT.



Appeal from the Industrial Commission of the State of Idaho. Appellant appeals from the decision and order of the Industrial Commission ("Commission"). The Commission ruled that appellant was a covered employer for unemployment insurance purposes, and that Kathleen Anderson was not discharged from employment by appellant due to misconduct. 1993 OPINION NO. 55

McDEVITT, Bistline, Johnson, Trout, Silak

Author: Mcdevitt

McDEVITT, C.J.

BACKGROUND AND PRIOR PROCEEDINGS

By decision dated January 30, 1991, an appeals examiner for the Idaho Department of Employment affirmed (1) a status determination dated August 22, 1990, in which Kathleen Anderson's ("Anderson") services were found to be performed in covered employment and her wages were found to be reportable and taxable for Idaho unemployment insurance purposes, and (2) an eligibility determination dated August 27, 1990, in which Anderson was found eligible for unemployment insurance benefits because her discharge from appellant Paul J. DesFosses' ("DesFosses") employment was not due to misconduct.

The appeals examiner ("examiner") found, inter alia, that Anderson and DesFosses had an employee-employer relationship, that Anderson performed different projects for DesFosses in his personal capacity and in his capacity as president of the National Coalition of IRS Whistleblowers ("Whistleblowers"), that Anderson was paid for her services with checks from the Whistleblowers signed by DesFosses, that Anderson was discharged from her duties after a confrontation with DesFosses, that DesFosses controlled Anderson's job duties and knew that applicable taxes were not being withheld from her paychecks, and that DesFosses provided the major items of equipment. In addition, the examiner found that "both the claimant and the appellant are not credible witnesses."

The examiner framed the issue as "whether a worker is an independent contractor," identifying a three-pronged inquiry from Swayne v. Department of Employment, 93 Idaho 101, 456 P.2d 268 (1969), as controlling: (1) does the worker have authority to hire subordinates; (2) does the worker own major items of equipment; and (3) would either party be liable to the other for a peremptory termination of the business relationship? See I.C. § 72-1316(d)(1). The examiner answered each of the three questions in the negative and ruled that "the preponderance of the evidence in the record establishes that the appellant, Paul J. DesFosses, is an employer under the Idaho unemployment insurance statutes, and services performed by Kathleen Anderson. . .were performed in covered employment." Furthermore, the examiner ruled that "since there is insufficient evidence to make a determination of employment-related misconduct the claimant is therefore eligible for unemployment insurance benefits."

On February 13, 1991, DesFosses filed a notice of appeal with the Commission. DesFosses also filed a motion for hearing dated March 1, 1991.

The Commission issued its decision and order on June 26, 1991. The Commission denied an additional hearing, as "the request does not describe any additional evidence to be presented," and "the interests of Justice require that no further hearing be held." The Commission conducted a de novo review of the record, pursuant to I.C. § 72-1368(g) and In re Guajardo, 119 Idaho 639, 809 P.2d 500 (1991), and it adopted the decision of the examiner as its decision.

On August 5, 1991, DesFosses filed a notice of appeal, appealing to this Court pursuant to I.R.C.P. 83(c). This matter was set for oral argument on April 9, 1993, in Pocatello, Idaho. DesFosses failed to appear at the oral argument, and the respondent waived oral argument, so the matter was ordered submitted on the briefs.

ISSUES ON APPEAL

I.

Is there substantial and competent evidence to support the Commission's finding that DesFosses was a covered employer for ...


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