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LLC v. Administrator, Unemployment Compensation Act

Court of Appeals of Connecticut

August 28, 2018

BLOSSOM'S ESCORT, LLC
v.
ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.

          Argued March 14, 2018

         Procedural History

         Appeal from the decision of the Employment Security Board of Review affirming the named defendant's decision that the plaintiff was liable for unpaid unemployment compensation contributions, brought to the Superior Court in the judicial district of Hartford and tried to the court, Hon. Henry S. Cohn, judge trial referee; judgment dismissing the appeal, from which the plaintiff appealed to this court. Affirmed.

          Jeffrey J. Holley, for the appellant (plaintiff).

          Richard T. Sponzo, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (named defendant).

          DiPentima, C. J., and Alvord and Beach, Js.

          OPINION

          PER CURIAM.

         The plaintiff, Blossom's Escort, LLC, appeals from the judgment of the trial court, rendered in favor of the defendant, the Administrator of the Unemployment Compensation Act (administrator), dismissing the plaintiff's appeal from the decision of the Employment Security Appeals Division, Board of Review (board), affirming the decision of the appeals referee, which affirmed the decision of the administrator that the plaintiff was liable for unpaid unemployment compensation contributions under the Unemployment Compensation Act (act), General Statutes § 31-222 et seq. On appeal, the plaintiff claims that the court improperly affirmed the decision of the board because a then recent statutory amendment, General Statutes (Rev. to 2007) § 31-222 (a) (5) (O), as amended by No. 08-150 of the 2008 Public Acts, exempted the claimant, Richard Peck, [1] and certain other individuals from the definition of ‘‘employee'' under the act. We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff provided flag escort services for oversized vehicles traveling within or through Connecticut. The plaintiff would assign requests for such services to various contractors. In March, 2008, Peck, who had performed services for the plaintiff as an escort vehicle operator, filed a complaint with the administrator claiming that the plaintiff had failed to pay him appropriate unemployment compensation benefits. The plaintiff had not reported wages for Peck and, as a result, the administrator's field unit conducted an audit for the applicable time period, from January 1, 2006 through December 31, 2007.

         In 2008, the legislature enacted Number 08-150 of the 2008 Public Acts (P.A. 08-150) which, in § 43 (O), exempted services performed by operators of escort vehicles, under certain circumstances, from the definition of ‘‘employee'' for purposes of § 31-222.[2] See General Statutes (Rev. to 2007) § 31-222 (a) (5) (O), as amended by No. 08-150 of the 2008 Public Acts.[3] This amendment became effective June 12, 2008.

         By a determination letter dated July 7, 2008, the administrator concluded that the plaintiff had employed Peck and other individuals within the terms of § 31-222 (a) (1) (B) (ii), [4] during the audit period from January 1, 2006 to December 31, 2007, and that the ‘‘potential amount'' the plaintiff owed for unpaid unemployment compensation contributions was $26, 812.05 plus interest.[5] The plaintiff appealed to the appeals referee from the administrator's July 7, 2008 determination. In a February 2, 2009 decision, the appeals referee affirmed the July 7, 2008 determination of the administrator. The appeals referee noted that the parties requested only that he address the issue of whether the amendment codified in P.A. 08-150 was the controlling law to be applied to the July 7, 2008 determination of the administrator. The appeals referee concluded that the amendment did not apply retroactively to the named individuals who worked for the plaintiff between January 1, 2006 and December 31, 2007. The plaintiff appealed that conclusion to the board. On November 12, 2010, the board affirmed the referee's decision and dismissed the appeal.

         On November 23, 2010, the plaintiff appealed the board's dismissal to the trial court. On January 8, 2015, the court remanded the matter back to the board ‘‘to institute factual findings regarding the applicability of the amendment to the claims against [the plaintiff].'' (Footnote omitted.) The court stated: ‘‘The board argues that the court should simply decide that the amendment does not apply and affirm the board. [The plaintiff] states that if the amendment is not in effect, then it will not pursue the matter further, but if it does apply, then it stands ready to prove that the amendment as a factual matter exempts it. . . . The court, however, would prefer to have the agency provide its factual findings to the court in advance of its determination of the applicability of the amendment.'' (Footnotes omitted.) In its remand order, the trial court retained jurisdiction to review the matter in full at the conclusion of the administrative appeals process.

         On January 28, 2015, the board remanded the matter to the administrator ‘‘to conduct further proceedings and to issue a new decision.'' The board noted that it did not retain jurisdiction. By letter dated April 24, 2015, the administrator concluded on remand ‘‘that none of the escort drivers providing services to [the plaintiff] during the time period covered in the original determination [January 1, 2006 through December 31, 2007] would be exempted from covered employment by the application of Public Act No. 08-150.'' The plaintiff appealed the administrator's decision regarding the applicability of the amendment to the appeals referee. The appeals referee framed the issue before him as ‘‘whether the [plaintiff] would still be liable for contributions if the administrator applied the test set forth in . . . § 31-222 (a) (5) (O), as amended by Section 43 (O) of Public Act No. 08-150.'' In a memorandum of decision dated May 31, 2016, the appeals referee sustained the plaintiff's appeal and reversed the April 24, 2015 decision of the administrator. The appeals referee held that the escort drivers who had provided services for the plaintiff during the relevant time period would be exempt from the definition of ‘‘employee'' under the relevant amendment to the act, § 31-222 (a) (5) (O), if it were applied. The appeals referee ordered the administrator ‘‘to reimburse the [plaintiff] from contributions already paid in an amount required by law.''

         On June 9, 2016, the administrator appealed to the board from the decision of the appeals referee. The administrator argued that § 31-222 (a) (5) (O), as amended, did not apply to the drivers in this case. The board affirmed the decision of the appeals referee that the escort drivers who provided services for the plaintiff during the relevant time period would be exempt from the definition of ‘‘employee'' if the amendment were ...


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