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CPR Plus, LLC v. Division of Employment Security

Court of Appeals of Missouri, Western District, Special Division

April 16, 2019

CPR PLUS, LLC, Appellant,

          Appeal from Labor and Industrial Relations Commission

          Before: Edward R. Ardini, Jr., Presiding Judge, Anthony Rex Gabbert, Judge, Kelly C. Broniec, Special Judge.

          Anthony Rex Gabbert, Judge.

         CPR Plus, LLC ("CPR Plus") appeals from three consolidated decisions by the Missouri Labor and Industrial Relations Commission ("Commission"), which found that instructors associated with CPR Plus are employees rather than independent contractors. On appeal, CPR Plus contends the Commission erred in deciding affiliated instructors are employees of CPR Plus, arguing there is no competent and substantial evidence in the record as a whole supporting this determination. We affirm.

         Factual and Procedural History[1]

         Stacy Ann Graff-Baehmann was in business twenty years as a sole proprietor before creating CPR Plus in January 2015. CPR Plus is a business providing instructors to conduct training classes in CPR, and other treatment related to emergency situations, to various clients. All instructors are required to be certified to teach CPR Plus classes. CPR Plus is an American Heart Association (AHA) training center which certifies CPR Plus to provide AHA training. The AHA requires all AHA-certified instructors to be aligned with an AHA training center in the instructor's region. Each AHA training center has the responsibility of ensuring that all the AHA-certified instructors aligned with that training center ("member instructors") comply with the AHA guidelines in providing CPR instruction. Member instructors are not required to provide instruction services for the training center. In the case of CPR Plus, not all member instructors who have been AHA-certified by CPR Plus contract with CPR Plus to provide services for CPR Plus. All instructors at issue in the Commission's investigation into employee versus independent contractor status, however, contract (or contracted) with CPR Plus to provide services for CPR Plus.[2] Two thirds of CPR Plus's business is offering classes; CPR Plus also sells first aid supplies.

         A client or customer contacts CPR Plus requesting a CPR class be held on a specific date. A certified instructor teaches the class, and then has participants fill out required AHA forms. The forms are used to process cards showing the attendee successfully completed the CPR class. CPR Plus, as a training center, is authorized by the AHA to collect the paperwork and process the cards upon submission of the appropriate forms. CPR Plus distributes the cards to class attendees at a later date.

         CPR Plus began operating in Missouri on January 13, 2015. Graff-Baehmann operates CPR Plus from her home located in Chesterfield, Missouri. Graff-Baehmann finds individuals interested in being instructors by networking and visiting internet job sites. She typically looks for individuals with a related background. Some of CPR Plus's instructors are already certified to teach the classes prior to working for CPR Plus. If they are not, CPR Plus offers the necessary training and books. The instructors purchase the materials and books needed to the complete the training to be certified. As an authorized training center, CPR Plus issues the necessary certification to those individuals.

         CPR Plus and instructors negotiate an hourly rate of pay depending on the expertise of the individual. CPR Plus requires the instructor to sign a written agreement provided by CPR Plus. CPR Plus places dates, times, and locations of classes on a software program called, "When to Work." Any instructor can sign up to teach a class, or they can ask CPR Plus to schedule them for classes for a specific number of hours they desire to work. The instructors with the most experience are designated as lead instructors.

         All classes are conducted at the client location which might be a medical center, nursing home, or educational facility. No services are provided at Graff-Baehmann's home. The client sometimes has the equipment necessary for the class; other times, CPR Plus provides the instructor with access to a storage locker that houses equipment. The instructors are also allowed to provide their own equipment. CPR Plus pays the instructors to clean equipment they use from CPR Plus storage. They are paid an hourly rate for the amount of time they spend cleaning, disinfecting, and returning the equipment to the storage locker. The instructors are reimbursed for parking fees, if applicable, at various client locations where the classes are held.

         CPR Plus supplies a spreadsheet for the instructors to fill out their hours worked. CPR Plus issues paychecks on the fifteenth and last day of the month. No taxes are withheld and an IRS form 1099 is given to instructors. CPR Plus does not provide insurance for instructors. The CPR Plus/instructor contract states that instructors are required to provide automobile insurance for the automobiles they use to travel to the class sites. CPR Plus provides no reimbursement for gasoline or training materials needed to maintain a valid certification. The instructors are not required to wear uniforms.

         Each class requires a ratio of nine attendees per instructor to satisfy the AHA guidelines. If fewer attendees than planned participate, an extra instructor is told to leave, and they are paid only for the hours spent setting up the class. The time spent setting up the class is compensated; the commute time is not compensated.

         Graff-Baehmann testified that most instructors have jobs as paramedics, nurses, or other health related jobs. There was no evidence before the Commission that CPR Plus instructors hold themselves out to the public as CPR instructors. The instructors are not allowed to have helpers when teaching CPR Plus classes. The instructors have a continuing relationship with CPR Plus, as they work on a reoccurring basis depending on the number of classes scheduled. Instructors decide to work as much or as little as they choose depending on the number of classes available.

         The CPR Plus/instructor contract contains a non-compete provision. The instructor is prohibited from any effort to obtain business with clients of CPR Plus for a two-year period. The contract ...

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