Vogue v. Administrator, Unemployment Compensation Act

Excerpt

The plaintiff appealed to the trial court from the decision of the Employment Security Board of Review affirming the decision of an appeals referee of the Employment Security Appeals Division that the plaintiff was liable for certain unpaid unemployment compensation contributions under the Unemployment Compensation Act (§ 31-222 et seq.). The plaintiff sold jewelry and provided body piercing and tattoo services in its store at a shopping mall. The plaintiff and S, a tattoo artist, entered into an agreement under which the plaintiff would receive one half of S's fees for tattoo services that S would sell from a room in the plaintiff's store. An audit by the defendant Administrator of the Unemployment Compen- sation Act thereafter determined that S was an employee of the plaintiff, rather than an independent contractor, as the plaintiff had claimed. The appeals referee found, inter alia, that S did not pay rent to the plaintiff for the room, that S performed tattoo services only during store hours, and that the plaintiff advertised on its website and Facebook page that customers could have tattoos done at its store. The board determined that the plaintiff failed to satisfy any of the three requirements of the ABC test, as set forth in § 31-222 (a) (1) (B) (ii) (I), (II) and (III), which governs the determination of whether services performed by an individual constitute employment under the act. On appeal from the appeals referee's decision that affirmed the defendant's determination, the board reasoned that, under part B of the ABC test in § 31-222 (a) (1) (B) (ii) (II), S's tattoo services were not performed outside of the plaintiff's usual course of the business or outside of the place of its business, and that S's tattoo services were an integral part of the plain- tiff's business enterprise. After the plaintiff appealed to the trial court, the board denied in part a motion the plaintiff filed to correct certain of the appeals referee's findings of fact. The defend