Parties Appearing: Claimant, Department

Parties Appearing by Written Statement: None

Inglewood Office of Appeals

The claimant filed a timely appeal from a department notice of status of wages, which held that his wages for the four quarters ending March 31, 2004, are disallowed on the basis that he did not work as an employee.

The claimant filed an unemployment claim with a benefit year beginning August 1, 2004, reporting that he last worked for Skycar for three and one-half years as a driver. He had one day of training, wherein he went with another driver to pick up customers. The company's dispatcher told the claimant the customers that he was assigned to pickup. He primarily drove customers to the airport. He drove company vehicles. During his shift, he was only allowed to pickup customers assigned to him by the company. He paid for the gasoline. Oil was paid for by the company. All repairs were done by the company, which had an in-house repair person. The company set the rate the customer paid. The customers made cash or credit card payments to the driver. At the end of each day, the payments were submitted to the company.

The claimant was paid 45 percent of the total fares in cash at the end of each shift worked. He worked a set schedule for the entire time he worked, which at the end of his employment was from Monday to Friday from 4:30 p.m. to 12:30 or 1:00 a.m. He recorded the hours worked, the amount paid by the customer, time due, customer name, the start and finish locations and mileage information on a way bill form provided by the company.

The claimant did not complete a W-4 form and did not receive either a W-2 or 1099 form at the end of the year from the company. The pay rate was set by the company. The company required that he pay a $5 surcharge fee per week until he paid a total of $500 to cover damage he might cause to the company vehicle.

In or about January of 2004, the owner's daughter took over as the manager of the business because the owner was in her 80's and was having difficulty managing the business. She substantially increased the gas allowance required. The claimant filed a complaint with the state Division of Employment Standards and Enforcement. When the owner's daughter received notice of the filing, she confirmed that he was the one who filed the complaint. She then advised him that she would call him when she had work available. She never called him regarding additional work. When he called, she did not give him an assignment.

"Employee" includes any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee. (Unemployment Insurance Code, section 621(b).)

In Empire Star Mines Co., Ltd. v. California Employment Commission (1946) 28 CaI.2d 33, the Supreme Court of California stated:

".. . In determining whether one who performs services for another is an employee or an independent contractor, the most important factor is the right to control the manner and means of accomplishing the result desired. If the employer has the authority to exercise complete control, whether or not that right is exercised with respect to all details, an employer-employee relationship exists. Strong evidence in support of an employment relationship is the right to discharge at will, without cause. [Citations)"

Other factors to be taken into consideration are (a) whether or not the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the workman supplies the instrumentality's, tools and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee."

In determining whether service was rendered in employment, the primary test is the right of the alleged employer to control the manner and means of accomplishing the desired results. (Empire Star Mines Company, Ltd. v. California Employment Commission (1946) 28 CaI.2d 33.)

In this case, the company had the right to control the manner and means of accomplishing the work that the claimant performed. His work as a driver was part of the regular business and was the main source of income for the company. He worked a set shift and had to account for the time by submitting a way bill documenting the customers for whom he provided service during his shift. Moreover, the vehicle was owned by the company and repaired by the company.

The company set the terms of the employment. There was no skill level required other than being able to drive. The employer had the right to terminate the claimant at will and did so. For these reasons, it is found that the evidence of record establishes that the claimant was an employee under common law. He is not ineligible for benefits under code section 621(b). As such, his wages are not disallowed for the four quarters ending March 31, 2004.

The department notice of status of wages is reversed. The claimant's wages are allowed under code section 621(b) as he is an employee. Benefits are payable, provided he is otherwise eligible.

FOA:keb