good morning my name is matt belcher and i represent a job on and i pray that this court overturn the commission's decision that edge obama was not an employee of joint management do the limited you yes judge the the first the first part is that i believe the commission made a mistake when they failed to distinguish between the right to exercise directional control and the burden of proof that ships when there's evidence of trial so what the what the where provides is that there's there's two actual tests here first we have the right to exercise direction betrayal and then second when actual evidence of directional control is exhibited the burden shifts to the employer to then show that that was it and excess of this already of the employer to exert that and so on and i know that you're going to interrupt me and who went where and where he was told when he was told and did what he was told the simplest examples of actual control are if job one is operating his own separate and distinct is that mr hanna testified the joint if in fact he's operating his own separate distinct business how does dr masuda have the right to pull him off of a painting job and have him go tend her garden if he's operating a separate and distinct business the clerks in the jeff and then and then we look at the relative nature of your business virtue is the relative nature of this painter's business and you're not in the painting business doesn't want it and so therefore if you're not but that's the role the nature of business that's and guess the second part of the argument is that if you operate just as holdridge is painting company and you hire a man to come paint your walls now it's a separate because no analysis as to whether or not that person is an employee or not but we always beg clerks at the doctor's office had the ability to call a job on it have him comment change a lightbulb now that's not what happened because dr masuda told him to change this particular light but that he was in the process of changing drug management slight blood on george manage that a mistake is is made when the commission says the evidence indicates that hannah doesn't isn't a painter as if the owner of the company needs to know how to paint i submit to you that the owner of turner construction doesn't know how to ability to control the manner in which the claimant performs were courting to you as long as they can tell them or don't want to go that's it but not exactly because once the extras actual control over over the employee or the alleged employee the burden then shifts for them to show that that that the exertion of actual control was outside their authority so we have to choose to test or first we begin with the right to exercise directional control if i can demonstrate the right exists then have actual written instructions can i interrupt you there yes just like you're going to continue on with the right can to control factor i want to back away from back out from the analysis just a little bit to make sure i understand what you consider any of these factors or is it simply the weight that they ascribed to the right control factor or the way that they address that specific factor is that where your focus is on the right to control the form they played the wrong test they said that that they failed to take into consideration that when actual control is demonstrated that the burden shifts show that exert that job on what to do it should be at the beverly building on wednesday at eight thirty to be at the hyde park building on monday at eight o'clock and then clean clean up the dental office clean the screens clean the back spoke clean the wall all these reconstruction and then i have phone records from mr job on that indicate that the doctor masoud or doctors who his office called him on a regular basis and it set forth in the chart in the in the circuit court materials but there's there's regular evidence of actual control being demonstrated that was never never addressed by the commission at all and that the things that the commission set forth that i should have followed are shown is that the person had a w two i'm not sure how i was going to do that since he had worked there for a year where a company uniform established he could not turn down a job but that's a mistake because it does it at the record does demonstrate that if you if he turned down the job as mr hannan said he  painting above a nice oriental rug and said you know please use a drop cloth there to protect my nice oriental rug now's the exerted control to the point where he's an employer you would agree that the commission has a very  simplistic analysis of saying is there evidence that the job was operating a separate and distinct business it isn't really that the appropriate task of whether or not a person is independent g system and in order to figure out how to do it you need to have a person in your office that handles the call so i personally don't know how to do it i rely upon my office to go and handle the call that's all she does all day long how come  how is she an employee and she's not independent contractor because there's other companies that operate as a clerk in the service and that's the answer is that if there's evidence that she's operating an independent or distinct business isn't that  here is conflicting particularly on the right of the employer to control your body but there is a line of cases and here's the hurdle you have to get all grammar to quote you something comes from the area transportation company versus the industrial commission one twenty three facts may be drawn either in favor of or against in employment relationship the word of the commission must be upheld so what they're saying is in most of these cases in this case isn't unique you're going to get conflicting evidence on these elements i've yet to see a case where there isn't some evidence going both ways so the courts are saying when you've got that there's a great deal of difference good to the commission's decision that's to her it will happen in this case right and i think you've got a strong argument and some of your because the real world post recession employment relationships between people has changed where it was not written for two thousand and thirteen ropes and is not written for two thousand and thirteen as counsel points out in her respons that you know there is a problem in our state yes deployers classifying employees as in the been a contractor to get out of having to pay taxes we'll provide social insurance and so forth and therefore we're passing the sad yesterday and maybe take one no skill whatsoever it's immaterial and that's if you have a cleaning woman and you can tell her where to clean do you really have to tell her using hand you want or if you have a  happened is changing a light bulb is that skilled labor and if it's not skilled labor how is it that you require dr masood to guide mr job on changing this lightbulb mr job i was on  decision which was confirmed in a summary manner by the commission so that we should have shown that he was driving a company vehicle with a company decal on the side or been on twenty four hour standby or was wearing a uniform i mean these are not the appropriate analyses when you're trying to decide whether or not directional control the right direction to existed and then when the actual demonstration of direction of a troll is demonstrated the burden never shifted and then we have the relative nature the business touch with we know is that perhaps the second most important factor and then we ask ourselves in an economic reality of this day and age is head job on operating a separate and distinct business and yes he's working exclusively permanently full time basis at this company doing what he's told when he's told where he is told he cleans he paints and changes a set of signs he operates himself as as solely within the business of joint joint management business is that the maintenance of their of their products but not realistic they don't buy and sell real estate their maintenance company mr barnes there's no business of of there's no business of  it's where it says when elements of both the relationship of an employee and independent contractor president and the facts permit an inference either way the commission alone is empowered to draw the inference and its decision as to the weight of the evidence will not be disturbed under a view and as this court has said numerous times these are vexatious cases they're difficult and it's not because the factors that robertson's outlines and through well where are so complicated i mean that's not the the that there are so facts specific you have to look at every factor and that's what the commission did in this case there is absolutely the conflict think of that in the past to control there's conflict in evidence as to the nature of the work and the conflict in nev places and he in fact the claim in fact testified that he owned his own apartment building took care of that as well and mr testified that they're busy time really was from march to october and after that it was you know that that was really the time in which they had all of these apartments come due and that he would have lots to do with sudar also testified that the claimant actually came to her and said i need extra work i need work please give me more work i have a son who's sick  work and she testified that's what she did that you know she provided him with extra work on his requests she also testified relative to the control is that he came and went as he pleased now there certainly testimony from the suit that there were three separate buildings rest of it related to a different janice i think is the name of the other contract that really had nothing to it also that the one i think piece of information when they talked about timing actually the timing in that was the ten that was leaving at ten in the morning and the new tenant was coming in and another day at night and morning and it was just giving him time frames as to what this is when they're going to be out of there you can go then no that has to move is very clear that he came to the office when he went to wanted to and he set his hourly schedule and that the suit has to fly that it was up to him to make a determination how much time he would take in order to get it done and they did say to him yes here's the part number i'd be ok it needs to be done you know by the beginning of the month but it was up to him to make the determination as to when he got it done how we got it done what supplies to utilize and there's no question there is some elements of an employee i mean i'm not i couldn't stand up here with a straight face and tell you not  paid hourly and there were some materials that were provided to him but that's that's the point here is that there is conflicting attitudes that the commission reviewed in losing a war that the commission's decision has given deference in cases such as this where there's conflict that's cracked i mean the end there is there is sufficient evidence in this record to support the commission's decision that he was an independent contractor and that is what this was specifically relative to the control masuda and hannah never controlled how he did this their testimony was he was hired as a painter slash handyman cleaner and it was expected to him when these are apartment him available they would tell him he would go and clean it up and paint the apartment they had no control over him they didn't go during the day with sue to specifically stated she did not have the authority to pull him off one job and put him on the other i appreciate the claimant said otherwise but she she testified that hannah testified that he didn't supervise him throughout the day he had no idea he would come by and it was more of a quality control yes he come by and say hey you know well let me see where we are in the status and i think it would be very similar sort of how to do the job would you refuse groceries that was up to them that's correct and then he would turn i those receipts and we would reimburse them and even think the pay stubs i mean it's not that we have uniform pay stubs every week showing that he's working forty hours a week they vary week to week to week because it's hours varied week to week to week because they were determined by how long it took him to actually they they in fact manage properties for managing properties isn't just about cleaning and even testified to the fact that they had numerous different independent contractors which did numerous different types of jobs to keep the properties going i  appreciate the managing properties of the portion of that is clean but they want to cleaning service that's that they were doing i think in my brief even given example that there are lots of companies downtown that manage properties and they employ people to do the cleaning that doesn't somehow shift them to become employees of those management companies just part and parcel of managing units and buildings is cleaning but that's not the underlying purpose of the business i mean if i were a factory and i made that exercised this ongoing control same with the cell phone records i mean there are some cell phone records in there that show that there's you know some back and forth between the claimants and the responded but the claima that you talk to him every day multiple times a day he's been directed all the time but that's not what this cellphone records show so it's very possible that the commission inferred something else from the cell phone records and that's what the commission's job is to do it heard this conflicting testimony it took in the conflicting documentarian evidence and came to the decision that there was not enough control exerted the other factors such as a schedule that they did not actually control his schedule that he came and went as he pleased that they did not withhold taxes either income taxes or security taxes and the fact it that the claimant was in fact a business owner meaning knew he had he testified that he had a dump truck business in the on his own apartment building but there was never any was an independent contractor there was no you know i'm an application for employment ever filled out i think you got to the services by some other independent third woman that brought into this  well should serve them in a discharge and that they acted appropriately or they're not meeting the standards but that doesn't mean it all you know all our way to complete control of discharging now the claimants really testified that he felt that he would be discharged you know if he didn't comply with exactly all of their wills and once but that's not what masuda i think in and testified to him in testified to the fact that no they did they wouldn't fire him during the middle of a job if the job didn't meet their appropriate standards they would not offer many more jobs but that wasn't the and services and can i can i fire easy now my employee you know even though that we've structured the relationship as an independent contractor and that's what the structure of the relationship here too i do believe that parties should be still be free to contract as to how they want to set up the relationship i do independent contractor and that's why the employee question haitian air space so sure north i mean there's a problem in it too i mean there's no doubt is there that i mean there are people out there calling people independent contractors when really they're in employees share i be and that's what robertson there's a lot of cities for somebody to structure somebody using big contractors to bully absolutely there's no question but there's also in there is also a reason that they are set up that way because you know other people as an independent contractor go out and can offer their services to different places and whatnot it doesn't necessarily make you know that not everyone wants to be an employee as incentives to be an absolutely absolutely because you can in fact you know direct these independent contractors such as the snow removal contractor they bid on the job not paid hourly they bid on the job they complete the job and that's it as relates to the w four nor was there a w nine filled out which is required any time you paid independent contractor more than six hundred dollars in order for me to get a check from an insurance company i need to provide them with the nine if it's more than six hundred dollars no evidence that the nine thought that i as relates to  to do if you turned on your job to answer i presume you find another job or stay home so then you wouldn't be working for joint management company answer he wouldn't be working for us if you rejected  you either if if you reject the job he gets fired they're not going to hire anymore and so does that make them an independent contractor but if we take a step back and say what is the operating a separate distinct business and if the answer is yes you relative nature of the work right to terminate paid our use of of materials and equipment in the latter at the time of the accident  coworker who was of the same class as mr job on had a joint management home depot credit card office who's not in it not not an employee either transcribed that into a typewritten invoice they called it then they paid that employs i submit to you that there is essentially no evidence of an independent contractor