863 To Go, Inc.
Department of Labor
This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Employment Security Board. Anne M. Noonan, Chair.
Pietro J. Lynn and Alexander G. Lewis of Lynn, Lynn & Blackman, P.C., Burlington, for Plaintiff-Appellant.
Dirk Anderson, Montpelier, for Defendant-Appellee.
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.
[¶1] The single issue in this appeal is whether payments by employer 863 To Go, Inc. to its delivery drivers should be excluded from the calculation of employer's contribution to Vermont's system of unemployment compensation. We affirm the decision of the Vermont Employment Security Board requiring employer to include these payments in the calculation of its unemployment contribution.
[¶2] Employer is a Vermont corporation which provides food delivery services to Burlington-area restaurants that do not employ drivers of their own. The company commenced operations in 2005. Its business model involves five groups or entities: employer; the restaurants that contract with employer for marketing and delivery services; Delivery Drivers, Inc. (DDI), an employment agency located in California; the individual drivers; and the individual consumers who order food for home delivery.
[¶3] Consumers call employer, frequently after visiting the company's website, which displays the menus of participating restaurants. They place an order and arrange payment to employer either by credit card or by cash to be collected by the delivery driver. The price includes a delivery charge that varies by location and distance. Employer faxes the order to the restaurant. It pays the restaurant directly for the meal on a discounted basis.
[¶4] In the meantime, the delivery job is placed on a website for approved drivers. These drivers are people willing to deliver food to customers in their own vehicles. Drivers learn about the employment opportunity through word of mouth, local advertisements, or a Craigslist advertisement. People who respond are directed to DDI. DDI collects information from applicants including their driver's license number and proof of automobile insurance. DDI then arranges for each applicant to meet with a representative from employer. If the applicant is eligible for employment, they are given access to employer's website. Each driver decides whether to accept a particular delivery assignment.
[¶5] At the end of each night, the drivers " cash out" at employer's office, meaning that they turn over the cash or credit card slips paid by the customers. The amounts collected by ...