Industrial Claim Appeals Office of the State of Colorado DD No. 17075-2013
John Behrs, as Authorized Representative of Whitewater Hill, LLC
Cynthia H. Coffman, Attorney General, John August Lizza, First Assistant Attorney General, Sophia Lenz, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office
No Appearance for Respondent Division of Unemployment Insurance Employer Services – Integrity Employer Audits
NEY JUDGE [*]
¶ 1 This case raises the issue of whether certain agricultural work constituted "employment" under the Colorado Employment Security Act (CESA). The dispute centers around the interpretation of section 8-70-120(1)(a), C.R.S. 2014, a CESA provision that defines when agricultural labor is deemed statutory employment.
¶ 2 A hearing officer and the Industrial Claim Appeals Office (Panel) reached differing and conflicting interpretations of this statute which, in turn, resulted in conflicting conclusions as to whether the work was covered employment.
¶ 3 We conclude that the hearing officer's interpretation of the statute was correct and that the work performed was not employment as defined under CESA. Consequently, we set aside the Panel's order and remand with instructions to reinstate the hearing officer's decision.
I. Procedural Background
¶ 4 Petitioner, Whitewater Hill, LLC (Whitewater), operates a small vineyard and winery. Following an audit, the Colorado Department of Labor and Employment (Department) issued a liability determination concluding that agricultural work performed by certain individuals (the workers) for Whitewater amounted to covered employment and that Whitewater must pay taxes on amounts it paid the workers.
¶ 5 Whitewater appealed the liability determination arguing, as pertinent here, that the services were "agricultural labor" and therefore fell outside CESA's definition of employment. Following an administrative hearing, the hearing officer made findings concerning the number of workers Whitewater had employed. Based on those findings and her interpretation of section 8-70-120(1)(a), the hearing officer concluded that the workers' services were not employment, but rather exempt agricultural labor. Consequently, the hearing officer concluded that Whitewater was not required to pay taxes on the amounts it paid the workers.
¶ 6 On review, the Panel disagreed with the hearing officer's interpretation of section 8-70-120(1)(a) and set forth its own differing interpretation of the statute. The Panel set aside the hearing officer's decision and remanded for additional factual findings.
¶ 7 On remand, the hearing officer made supplemental findings as instructed but adhered to her original interpretation of section 8-70-120(1)(a). Based on that interpretation, the hearing officer again concluded that the workers' services constituted exempt agricultural labor.
¶ 8 Whitewater appealed a second time. On review, the Panel applied its previous interpretation of section 8-70-120(1)(a) to the hearing officer's new findings and concluded that the workers' services constituted covered ...