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Visible Voices, Inc. v. Industrial Claim Appeals Office of State

Court of Appeals of Colorado, Seventh Division

May 8, 2014

Visible Voices, Inc., Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and Division of Unemployment Insurance, Respondents

Industrial Claim Appeals Office of the State of Colorado. DD No. 20689-2012.

ORDER AFFIRMED IN PART, SET ASIDE IN PART, AND CASE REMANDED WITH DIRECTIONS.

Ogborn Mihm, LLP, Anna N. Martinez, Thomas D. Neville, Denver, Colorado, for Petitioner.

No Appearance for Respondent Division of Unemployment Insurance.

Opinion by JUDGE J. JONES. Fox and Navarro, JJ., concur.

OPINION

Page 308

J. JONES, JUDGE.

[¶1] In this unemployment compensation tax liability case, petitioner, Visible Voices, Inc. (Visible), seeks review of a final order of the Industrial Claim Appeals Office (Panel). The Panel reversed, in part, a hearing officer's decision that services performed for Visible by thirteen individuals (the workers) did not constitute covered " employment" under the Colorado Employment Security Act (CESA) because the workers performed those services as independent contractors. The Panel determined that only two of the workers performed the services as independent contractors and that the remaining eleven workers were Visible's statutory employees.

[¶2] We affirm the portion of the Panel's order holding that the two workers were independent contractors. However, we set aside the remaining portion of the Panel's

Page 309

order and remand with directions to reinstate the hearing officer's decision that the remaining eleven workers also provided their services to Visible as independent contractors. In so doing, we reject the Panel's reliance on a single factor -- whether the eleven workers regularly provided similar services to others while they were providing services to Visible -- to determine whether those workers were engaged in an independent trade or business. We conclude instead that all relevant circumstances must be considered in making this determination.

I. Background

[¶3] Visible provides " Computer Assisted Realtime Translation"

[¶4] (CART) services under contracts with various clients, including state agencies and courts. It supplies its clients with " CART providers, or captionists, who perform live word-for-word speech-totext translation for the deaf and hearing impaired." Visible entered into agreements with the workers in which they agreed to provide CART services to Visible's clients as independent contractors.

[¶5] The Division of Employment and Training (Division) issued a liability determination concluding that the workers' services for Visible amounted to covered employment and that Visible was, therefore, required to pay applicable unemployment compensation taxes on those services.

[¶6] Visible appealed the deputy's decision. Following an evidentiary hearing, the hearing officer determined that the workers were independent contractors because they performed the services free from Visible's control and direction, and were customarily engaged in an independent trade, occupation, profession, or business related to the CART services they performed.

[¶7] The Division appealed the hearing officer's decision. The Panel upheld the hearing officer's determination that the workers were free from Visible's control and direction. However, the Panel remanded for further findings concerning whether the workers were customarily engaged in an independent trade or business providing CART-related services.

[¶8] On remand, the original hearing officer was unavailable and a different hearing officer reviewed the evidence and entered a new decision. The hearing officer also determined that the workers were not Visible's employees because they were free from Visible's control and direction and were customarily engaged in independent businesses related to providing CART services.

[¶9] The Division again appealed. The Panel adhered to its previous ruling that Visible did not control and direct the workers. However, contrary to the second hearing officer's decision, the Panel determined that eleven of the thirteen workers were not customarily engaged in independent businesses related to the CART services. In making that determination, the Panel relied largely on a lack of evidence that those workers had regularly provided CART services to others besides Visible while working for ...


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