Bradford’s Trucking, Inc.
Department of Labor
On Appeal from Employment Security Board Mary Anne Gucciardi and Michael Rogers, Board Members
Eileen Bradford, Pro Se, Ferrisburg, Plaintiff-Appellant.
Dirk Anderson, Montpelier, for Defendant-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. Employer Bradford’s Trucking, Inc. appeals from an Employment Security Board ruling that certain individuals were employees of the company for purposes of assessing unemployment taxes. We affirm.
¶ 2. Employer is in the business of delivering sand and gravel to companies around Vermont. It is based in Ferrisburgh, and generally delivers to other businesses in central Vermont. It has had as many as nine employees, but at the time of these proceedings claimed to have only four.
¶ 3. In June 2012, the Department of Labor assessed employer for unpaid unemployment compensation contributions for several of its workers. Employer appealed with respect to three of the individuals in question. Following an evidentiary hearing, an administrative law judge (ALJ) sustained the Department’s assessment of contributions. Employer then appealed to the Employment Security Board, which adopted the ALJ’s findings and affirmed its decision.
¶ 4. The ALJ’s findings with respect to the three workers may be summarized as follows. Eileen Bradford has worked for employer, a family-owned company, since it started in 1989, except for a four-year period between 2004 and 2008 when she was out of state. Her son is the company’s current president, and she has served for years as its secretary/treasurer, a position she occupied during the years in question for purposes of this appeal. Ms. Bradford did the bookkeeping and payroll for employer since its inception.
¶ 5. Ms. Bradford testified that, in June 2008, she opened a bookkeeping business. She did not register the business with the Secretary of State. She testified that she had three clients, including employer, but that one stopped employing her in 2009, and another in 2010. She testified that she had no written agreements with the other two companies and did not send them invoices. Ms. Bradford was paid $25 per hour by employer for her bookkeeping services.
¶ 6. In 2010, Ms. Bradford started working full time for another company, and consequently hired a friend, Neil Swenor, to help with employer’s books. Swenor was then working full time as a bookkeeper at a meat market and was looking to supplement his income. He worked for employer for about a year, working out of Ms. Bradford’s home in Vergennes. He usually worked about seven to ten hours per week, for $14 per hour. Ms. Bradford signed Swenor’s checks on behalf of employer. When Swenor left at the end of 2011, Ms. Bradford hired Kelsey Reed, her son’s fiancée, to replace him. Reed ran a daycare business. She worked for employer from January to August 2012, for approximately the same hours and rate of pay as Sweenor, and also worked out of Ms. Bradford’s home. After Reed left, Ms. Bradford resumed doing all of the payroll and bookkeeping services for employer.
¶ 7. To resolve employer’s appeal, the ALJ and the Board applied 21 V.S.A. § 1301(6)(B).  Under this provision, all workers who receive wages are presumed to be employees, and the burden is on the employer to rebut this presumption by showing that the workers “meet all three elements of the statutory exception commonly known at the ABC test.” Fleece on Earth v. Dep’t of Emp’t & Training, 2007 VT 29, ¶ 7, 181 Vt. 458, 923 A.2d 594. “The failure of any one part of the test compels the conclusion that an employer-employee relationship exists.” Id. The three elements of the exception are: (1) the worker “has been and will continue to be free from control or direction over the performance of such services”; (2) “[s] uch service is either outside the usual course of the business for which such service is performed, or... such service is performed outside of all the places of business of the enterprise for which such service is performed”; and (3) “[s] uch individual is customarily engaged in an independently established trade, occupation, profession or business.” 21 V.S.A. § 1301(6)(B)(i), (ii), (iii).
¶ 8. The Board affirmed the ALJ’s finding that employer had met its burden as to the first part of the test, noting that Ms. Bradford was a corporate officer and therefore generally free from control and that employer exercised only “limited control” over Swenor’s and Reed’s payroll work.
¶ 9. The Board also agreed with the ALJ’s finding, however, that employer had not met either of the independent elements of the second part of the test with respect to Bradford, Swenor or Reed. They concluded, in this regard, that bookkeeping was “integral” to and a “necessary part of doing business” for employer, and therefore was not “outside the usual course” of employer’s business, and ...