Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Industrial Claim Appeals office v. Softrock Geological Services, Inc.

Supreme Court of Colorado, En Banc

May 12, 2014

Industrial Claim Appeals Office, Petitioner:
v.
Softrock Geological Services, Inc.; and Colorado Division of Employment and Training, n/k/a Colorado Division of Unemployment Insurance, Respondents:

Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 11CA2331.

SYLLABUS

The supreme court holds that for the purpose of determining if an individual is an independent contractor under the Colorado Employment Security Act, whether an individual is " customarily engaged in an independent trade, occupation, profession, or business related to the service performed" is a question of fact that can only be resolved by applying a totality of the circumstances test that evaluates the dynamics of the relationship between the putative employee and the employer; there is no dispositive single factor or set of factors.

Attorneys for Petitioner: John W. Suthers, Attorney General, Tricia A. Leakey, Assistant Attorney General, Alice Q. Hosley, Assistant Attorney General, Denver, Colorado.

Attorneys for Respondent Softrock Geological Services, Inc.: Bechtel & Santo, L.L.P., Michael C. Santo, Dean H. Harris, Grand Junction, Colorado.

Attorney for Amicus Curiae Colorado Motor Carriers Association: Wheeler Trigg O'Donnell, LLP, Mark T. Clouatre, Denver, Colorado.

No Appearance by or behalf of: Colorado Division of Employment and Training, n/k/a Colorado Division of Unemployment Insurance.

OPINION

Page 561

BOATRIGHT, JUSTICE.

[¶1] In this appeal, we consider whether an individual is an independent contractor as opposed to an employee for unemployment tax liability purposes. Under the Colorado Employment Security Act (" CESA" ), § § 8-70-101 to 8-82-105, C.R.S. (2013), employers must pay unemployment taxes on wages paid to employees but not on compensation paid to independent contractors. Section 8-70-115(1)(b), C.R.S. (2013), provides that an individual is only classified as an independent contractor if the employer can prove that the individual is " free fro control and direction in the performance of the service, . . . and

Page 562

such individual is customarily engaged in an independent trade, occupation, profession, or business related to the service performed." In this case, there is no dispute that the employer did not exercise control over the individual, so the only issue is what test should be used to determine whether the individual is " customarily engaged in an independent trade, occupation, profession, or business related to the service performed."

[¶2] We agree with the court of appeals that whether an individual is " customarily engaged in an independent trade, occupation, profession, or business related to the service performed" is a question of fact that can only be resolved by analyzing several factors; whether the individual worked for another is not dispositive of whether the individual was engaged in an independent business. Softrock Geological Servs., Inc. v. Indus. Claim Appeals Office, 2012 COA 97, ¶ ¶ 9, 23-26. We disagree, however, with the court of appeals' conclusion that whether an individual is engaged in an independent trade or business can be determined by applying a nine-factor test developed based on the list of nine factors that a document must contain to create a presumption of an independent contractor relationship under section 8-70-115(1)(c). See id. at ¶ 24. Instead, we hold that the determination must be based on a totality of the circumstances test that evaluates the dynamics of the relationship between the putative employee and the employer; while the factors listed in section 8-70-115(1)(c) may be relevant to this determination, the section does not provide an exhaustive list of factors that may be considered. As such, we affirm the judgment of the court of appeals and remand the case to that court to return the case to the Industrial Claim Appeals Office for proceedings consistent with this opinion.

I. Facts and Proceedings Below

[¶3] Waterman Ormsby is a geologist who contracted to work on a project basis for Softrock Geological Services, Inc. (" Softrock" ), a company that provides geologic services for the oil and gas industry. Relevant to this case, Ormsby worked for Softrock from 2007 through 2010 under various contracts. Softrock did not provide Ormsby with training or tools during this time; rather, Ormsby was expected to, and did, use his own vehicle, tools, and equipment (except for certain specialized equipment that he rented from Softrock) to complete the jobs. Ormsby also ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.