Senior Partners, Inc. v. Miss. Emp. Sec. Comm'n.
| Docket Number: | 2005-CA-01835-COA Linked Case(s): 2005-CA-01835-COA ; 2005-CT-01835-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-28-2006 Opinion Author: MYERS, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Unemployment benefits - Employment relationship - Section 75-5-11(I)(14) Judge(s) Concurring: KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 08-17-2005 Appealed from: Hinds County Circuit Court Judge: Winston Kidd Disposition: AFFIRMED DECISION OF MISSISSIPPI EMPLOYMENT SECURITY COMMISSION Case Number: 251-04-241CIV |
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| Party Name: | Attorney Name: | |||
| Appellant: | SENIOR PARTNERS, INC. |
HOLMES S. ADAMS, R. JARRAD GARNER, IAN C. JONES |
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| Appellee: | MISSISSIPPI EMPLOYMENT SECURITY COMMISSION | ALBERT BOZEMAN WHITE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Unemployment benefits - Employment relationship - Section 75-5-11(I)(14) |
| Summary of the Facts: | Senior Partners, Inc. is a Mississippi corporation based in Jackson and engaged in the business of providing health care personnel consisting of sitters, aides, and certified nurse assistants to the elderly or sick. Denisha Wilson, a sitter, filed a claim for unemployment benefits with the Mississippi Employment Security Commission as a former employee of Senior Partners. The MESC found that Senior Partners had not reported any wages for Wilson. The Chief of the MESC’s Contribution and Status Department found that an employment relationship existed between Senior Partners and the sitters, implicating wage reporting and unemployment tax liabilities upon Senior Partners. Senior Partners appealed, and the hearing officer found that an employment relationship existed between Senior Partners and its workers. Senior Partners appealed to the Full Commission which adopted and affirmed the findings of the hearing officer. Senior Partners appealed to circuit court which affirmed. Senior Partners appeals. |
| Summary of Opinion Analysis: | Senior Partners contests the findings which hold it to be an “employer.” Section 75-5-11(I)(14) defines “employment” for the purposes of assessing unemployment tax contributions as services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the department that such individual has been and will continue to be free from control and direction over the performance of such services both under his contract of service and in fact; and the relationship of employer and employee shall be determined in accordance with the principles of the common law governing the relation of master and servant. Factors to be considered in determining whether the type of relationship between a health care placement service and a worker can be classified as “employment” include the extent of control exercised over the details of the work; whether the one employed is engaged in a distinct occupation or business; the skill required in the particular occupation; whether the employer supplies the tools and place of work for the person doing the work; the length of time for which the person is employed; the method of payment, whether by the time or by the job; and whether the work is part of the regular business of the employer. Senior Partners and the workers entered into contracts which indicated that the workers were responsible for their own taxes, required each worker to obtain a fidelity bond, and stated that the workers were not employees. This contract referred to the sitters, nurses’ aids and nurses as independent contractors. However, the mere fact that a contract between Senior Partners required a sitter to sign a contract naming the worker an “independent contractor” is not conclusive as to whether the worker is an employee. Senior Partners contractually forbids the clients to pay the workers directly or to negotiate pay with the clients. Senior Partners sends the workers on assignments and bills the clients for the worker’s services. Testimony from Senior Partners’ president adduced that workers are unable to replace themselves unless they are already contracted with Senior Partners and have permission. Senior Partners requires that each sitter have at least one year experience, pass a criminal background check and a tuberculosis skin test before taking assignments. The workers are also subject to random and post-accident drug testing. Senior Partners retained the ultimate decision making power to discharge a sitter by dropping the worker from the rotation list. The contractual agreement required thirty days notice for either the worker or Senior Partners to terminate the employment relationship without cause. Given these facts, Senior Partners is engaged in employment as a matter of law under the meaning of section 71-5-11(I)(14). |
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