LAURA J WAGNER, Employee

MEDQUIST TRANSCRIPTIONS LTD, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The following paragraph is inserted after the fourth full paragraph on page four of the appeal tribunal decision:

"In addition, the fourth factor is not satisfied, since it was not established that the claimant operated under contracts to perform specific services for specific amounts of money. Nor is the seventh factor satisfied where the claimant was paid at a per-line rate, rather than on a commission, per-job or competitive bid basis."

2. The following sentence is inserted at the beginning of the fifth full paragraph on page four of the appeal tribunal decision:

"Although it could be found that the employer met its burden of demonstrating that the fifth and six statutory factors were satisfied, this is insufficient to warrant a finding in the employer's favor."

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the wages paid to the employee by the employer totaling $1,588.09 shall be included in the department's computation of the employee's base period wages for computing potential benefit eligibility.

Dated and mailed January 15, 2003
wagnela . umd : 164 : 1  EE 410 EE 410.03

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

In its petition for commission review the employer argues that the claimant did maintain a separate business with her own office, equipment, materials and other facilities. In support of this argument, the employer contends that its transcriptionists work from home or other places of business of their choosing and supply all computers, telephone lines, facsimile machines, and other supplies. The employer states that the value of the equipment typically used is over $3,000. This argument fails. The claimant did not appear at the hearing, and the employer's witness had no firsthand knowledge as to what, if any, type of office she maintained, nor whether she possessed her own equipment and materials, to say nothing of the value of such equipment and materials. While the employer speculates that the claimant must, of necessity, have certain business equipment, the commission is unable to base any findings of fact on such speculation.

Next, the employer contends that factors four through nine were not given appropriate weight and that the claimant executed a contract with the employer outlining each of those items. However, the commission does not rely solely upon assertions contained in a written contract in determining whether an individual has provided services as an independent contractor, but looks at the evidence in the record overall. While the evidence in this case may warrant a conclusion that the claimant incurred the main expenses related to the services being performed and was responsible for the satisfactory completion of the services and liable for failure to satisfactorily complete the services, for reasons set forth in the body of the decision, the employer did not demonstrate that factors four, seven, eight or nine were met.

The commission has considered the remaining arguments raised by the employer in its petition, but finds them similarly unpersuasive. Because the commission believes that the claimant's services were performed in the capacity of an employee, rather than as an independent contractor, the appeal tribunal decision is affirmed.

NOTE: In its petition the employer has presented documentary evidence that was not submitted at the hearing. Because by law the commission is required to base its review solely upon the factual assertions and documentary evidence presented at the hearing before the administrative law judge, the commission is unable to consider that evidence which the employer has presented for the first time with its petition for review, and has confined its review to the evidence which is already in the record.

cc: 
Medquist, Inc. (Marlton, New Jersey)
Attorney Beth A. Whitaker

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2003/01/27