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Kirby of Norwich v. Administrator, Unemployment Compensation Act

Superior Court of Connecticut, Judicial District of New London, New London

September 16, 2015

Kirby of Norwich aka GP Industries of Norwich, Inc.
v.
Administrator, Unemployment Compensation Act et al

MEMORANDUM OF DECISION

Seymour L. Hendel, Judge Trial Referee.

These actions are appeals brought pursuant to General Statutes § 31-249b[1] by the plaintiff, Kirby of Norwich, [2] from a grant of unemployment compensation benefits to Bryant Gardner and Rick Magee[3] (claimants) by the defendant, Administrator, Unemployment Compensation Act (Administrator).[4] The present motions before the court are the Administrator's motions for judgment under each docket number.

The record reveals the following facts. By decision issued on January 28, 2014, the Administrator ruled, pursuant to General Statutes § 31-241, [5] that the plaintiff was engaged in an employer-employee relationship with the claimants and was liable to pay contributions under the Connecticut Unemployment Compensation Act. On February 7, 2014, the plaintiff appealed the Administrator's decision to the Office of Appeals Division. By a decision issued on May 2, 2014, Associate Appeals Referee Elisabeth D. Lapidus (Referee), pursuant to General Statutes § 31-242, [6] heard the claim de novo, made findings of fact, and affirmed the Administrator's ruling. The plaintiff filed a timely appeal to the Board of Review (Board), and on July 9, 2014, pursuant to its authority under General Statutes § 31-249, [7] the Board adopted the Referee's findings of fact, with some modification, affirmed her decision and dismissed the appeal. The facts found in both of the present cases are nearly identical with regard to the actions of the plaintiff toward the employment of the claimants, and, because of this similarity, the claimants will be collectively referred to in this memorandum, while any individual differences will be highlighted where appropriate. The findings of fact found by the Referee, and subsequently adopted and modified[8] by the Board, are as follows:

1. The claimant . . . worked for Kirby of Norwich from May 25, 2012, to September 2012, as an " independent dealer."
2. The appellant is in the business of selling vacuum cleaners to consumer end users.
3. The claimant was a door to door sales person who made demonstrations at people's homes in an attempt to sell vacuum cleaners.
4. The appellant did not list the claimant as an employee. The appellant treated the claimant as an independent contractor and provided the claimant with a Form 1099 reporting the payments made to the claimant for the services he provided.
5. The claimant sold Kirby vacuum cleaners to in home customers. The appellant provided leads and appointments of customers for the claimant to contact. The appellant utilized telemarketers to arrange these referrals.
6. The appellant provided training to the claimant at the beginning of his employment. The appellant also provided ongoing training to the claimant each day. All training was provided at the appellant's work place. Attendance at the trainings was not mandatory.
7. The above trainings included operation of the equipment, explanation of features and benefits, providing documents for taking orders, and providing documents for financing orders with the appellant's finance company.
8. The trainings were educational and motivational.
9. The appellant limited the claimant to only selling products to consumers and users by in home demonstrations.
10. The appellant required the claimant to maintain and provide records by way ...

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