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O'Dell v. Director, Dep't of Workforce Servs.

Court of Appeals of Arkansas, Division III

September 24, 2014

JANA O'DELL D/B/A PROFESSIONAL TRANSCRIPTION, APPELLANT
v.
DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, AND EMPLOYER CONTRIBUTIONS UNIT, APPELLEES

APPEAL FROM THE ARKANSAS BOARD OF REVIEW. NO. 2013-BR-002-EC.

R. David Lewis, for appellant.

Phyllis A. Edwards, for appellees.

GLADWIN, C.J., and BROWN, J., agree.

OPINION

Page 898

RHONDA K. WOOD, Judge.

Jana O'Dell, d/b/a Professional Transcription, appeals the Arkansas Board of Review's decision holding that O'Dell is responsible for paying unemployment taxes on the typists she hires because she failed to satisfy the three-prong test in Arkansas Code Annotated section 11-10-210(e). O'Dell contends that the Board's findings are not supported by substantial evidence. We reverse the Board's decision.

The Arkansas Department of Workforce Services issued a Determination Letter of Liability finding that Gina Polston and other similarly situated workers were employees of O'Dell for employer tax-contribution purposes. O'Dell requested that the Department's director issue a " Determination of Coverage." The director conducted a telephone hearing and decided that Polston was an employee of O'Dell. O'Dell appealed that decision to the Arkansas Board of Review, which affirmed. O'Dell filed a timely notice of appeal.

We consider the Board of Review's findings of fact conclusive if they are supported by substantial evidence and view

Page 899

the evidence in the light most favorable to the Board's findings. Baldor Elec. Co. v. Ark. Emp't Sec. Dep't, 71 Ark.App. 166, 27 S.W.3d 771 (2000). However, we conduct a de novo review when there are issues of statutory construction. Ark. Comprehensive Health Ins. Pool v. Denton, 374 Ark. 162, 286 S.W.3d 698 (2008). Arkansas Code Annotated section 11-10-210(e) (Supp. 2005) provides that the following three-prong test should be used to determine whether a worker is not an employee for unemployment-benefit purposes:

(e) Services performed by an individual for wages shall be deemed to be employment subject to this chapter irrespective of whether the common-law relationship of master and servant exists, unless and until it is shown to the satisfaction of the Director that:
(1) Such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact;
(2) The service is performed either outside the usual course of the business for which the service is performed or is performed outside all the places of business of the ...

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