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Timster's World Foundation v. Division of Employment Security

Court of Appeals of Missouri, Western District, Special Division

July 26, 2016

TIMSTER'S WORLD FOUNDATION, Appellant,
v.
DIVISION OF EMPLOYMENT SECURITY, Respondent.

         Appeal from the Labor and Industrial Relations Commission

          Before: Mark D. Pfeiffer, Chief Judge, Presiding, and Gary D. Witt and Anthony Rex Gabbert

          Mark D. Pfeiffer, Chief Judge

         Timster's World Foundation ("Foundation") appeals from a decision by the Labor and Industrial Relations Commission ("Commission"), which found that since January 1, 2012, parent aides/family assistance workers performed services for "wages" in "employment" by the Foundation, within the meaning of those terms as defined in sections 288.034[1] and 288.036 of Missouri's Unemployment Security Law. In the Foundation's sole point on appeal it avers that the Commission's decision is erroneous because its workers are independent contractors, not employees. We hold that the Commission's decision is supported by competent and substantial evidence upon the whole record and affirm.

         Factual and Procedural History[2]

         The Foundation was incorporated in 2012 by Kim Boykin as a subchapter S corporation. The Foundation's primary client is the Missouri Department of Social Services ("DSS") for which the Foundation offers services in the form of parent aides, family assistance, service delivery, mentoring, and tutoring.

         Since its inception, the Foundation has engaged workers-parent aides and family assistance workers-to provide short-term services and support for families during crises and to teach homemaking skills to parents under stress. Pursuant to the Foundation's contract with the DSS, each worker is required to submit an application and agree to a background check and a family registry check. The DSS requires parent aides to have at least a GED and work experience with parents and children. The family assistance workers must have a bachelor's degree and a working knowledge of assisting parents and children. The workers are required to personally perform the work and are not allowed to hire assistants or helpers. The workers' services are provided either in the client's home or in the community. When a worker qualifies to perform DSS work, the Foundation is responsible for the cases the worker accepts. Joi Jenkins, Meghan Dawson, Raymond McDaniels, Wendy Dancer, Ethel Fraizer, Brenda Brookenbrock, Christian Brumett, Lauren Buys, and Carol Washington provided both parent aide and family assistance services. Robin Willis and Emma Holmes provided only parent aide services.

         The Foundation has each worker sign an "Independent Contractor Agreement" in which the worker agrees to service clients referred by the Foundation "for purposes of family assistance/parent aid" in family reunification.[3] The Agreement states that the worker will provide services in accordance with the Foundation's code of conduct, will provide assessment/progress reports from the family visit in accordance with guidelines of the Children's Division along with a certificate of receipt signed by the client verifying that the worker made the visit, will provide to the Foundation a written report within two days of each visit, and will provide transportation to persons involved in the case. The Agreement further states that once a month the Foundation will pay the worker $20.00 per unit or hours worked as the worker's exclusive compensation. The Agreement also contains a "non-solicitation" clause prohibiting the worker from soliciting any of the Foundation's clients for a period of twenty-four months following termination of the worker's relationship with the Foundation, and a "non-competition" clause prohibiting the worker from assisting a competitor or otherwise competing with the Foundation during the time the worker is providing services on behalf of the Foundation and for a period of twenty-four months following termination of the worker's relationship with the Foundation. The Agreement provides that it may be terminated by either party upon thirty days' written notice.

         When a DSS case worker contacts Ms. Boykin (i.e., the Foundation) with the specifics of an open case, Ms. Boykin either specifically directs the case to a specific worker or, alternatively, she communicates the offer of the case to all the workers generally and the case is assigned to the first worker who accepts it. The Foundation does not set the worker's hours; the worker and the client agree on a work schedule. The workers are not required to work full-time but are required to provide the services and to work the number of hours authorized by the DSS. The workers may not offer their individual services to the general public; instead, the workers perform the services via the Foundation's contract and authorization with the DSS.

         The DSS pays the Foundation thirty days after the services have been completed, and the Foundation pays the workers once a month at the rate of $20 per hour, regardless of the amount the Foundation is paid under its contract with the DSS. The workers are not reimbursed for any of their expenses, such as gas or mileage. The workers provide their own writing materials for taking notes, computer access, internet access, cell phone, and transportation. Ms. Boykin and the workers are required by the DSS to participate in continuing education, which they schedule on their own. If the caseworker thinks that the worker needs more training, either the caseworker will contact the worker directly or the DSS will notify Ms. Boykin, who relates that information to the worker. If a worker fails to do something required by the DSS, the caseworker contacts the worker directly. But, if the caseworker is unable to make contact with the worker, the caseworker contacts Ms. Boykin, who communicates with the worker and then reports back to the caseworker.

         After the Division of Employment Security ("Division") received from the Foundation an Unemployment Tax Registration form, which indicated the use of independent contractors, the Division mailed Worker Relationship Questionnaires to the Foundation and five workers on or about August 14, 2012. After receiving no response, the Division again mailed Worker Relationship Questionnaires to the Foundation and the workers on August 30, 2012. Thereafter, the Division received a Worker Relationship Questionnaire from Meghan Dawson and from Joi Jenkins but no response from the Foundation as of October 31, 2012. Based on the best information available, including the Worker Relationship Questionnaires received from the two workers, a Specialist with the Division determined that the workers were employees. Specifically, the Specialist found that:

• workers were provided training and instruction by "shadowing" the employer on the first contact with each client;
• the business had the right to supervise the workers;
• the business changes how, where, and/or when the service is performed by calling the workers;
• workers are paid an hourly wage;
• workers perform services under the Foundation's name;
• workers are required to submit time sheets to the Foundation for the hours worked. Subsequently, the Division received a Worker Relationship Questionnaire from the Foundation in November of 2012, which the Specialist reviewed. The Specialist confirmed that the workers were employees, finding that:
• training, instruction, and supervision is required for the workers;
• workers are required to have certain education in order to perform services for the Foundation;
• the Foundation requires workers to follow a written code of conduct;
• the Foundation requires workers to agree to a non-compete clause;
• if workers need a helper, workers must obtain permission from the Foundation, and the Foundation hires and pays the helper;
• replacement workers must be another Foundation worker;
• all missed appointments must be rescheduled within the same month and approved by the Foundation;
• workers are paid hourly;
• workers are required to timely submit progress reports on ...

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