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THE SUPREME COURT OF NEW HAMPSHIRE 

___________________________ 

Department of Employment Security 

No. 2013-313 

 APPEAL OF NIADNI, INC. D/B/A INDIAN HEAD RESORT MOTEL 

(New Hampshire Department of Employment Security) 

Argued: February 20, 2014 

Opinion Issued: May 8, 2014 

 Sheehan Phinney Bass + Green, P.A., of Manchester (Elizabeth A. Bailey 

on the brief and orally), for the petitioner. 

 New Hampshire Legal Assistance, of Concord (Daniel Feltes and Sarah 

Mattson on the brief, and Mr. Feltes orally), for the respondent, Norman 

Coulombe. 

 Vrountas, Ayer & Chandler, P.C., of Manchester (Christopher T. 

Vrountas and Adam J. Chandler on the brief, and Mr. Vrountas orally), for the 

New Hampshire Lodging & Restaurant Association, as amicus curiae. 

 HICKS, J. This is an appeal of the New Hampshire Department of 

Employment Security (DES) Appellate Board (board) decision that the 

respondent, Norman Coulombe, was an employee of the petitioner, Niadni, Inc. 

d/b/a Indian Head Resort Motel (the resort), who was entitled to 
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unemployment compensation benefits under RSA chapter 282-A (2010 & Supp. 

2013). We affirm. 

 The record supports the following facts. The resort is located in Lincoln. 

Live entertainment is offered in a function room that features both a stage and 

public address system. Peter Spanos, the president and owner of the resort, 

testified that his enterprise is a “resort type business” with “a restaurant, 

rooms, [and] entertainment,” which offers live entertainment on sixty to seventy 

percent of the nights that it is open. He further testified that the resort 

advertises upcoming entertainment in local newspapers, online promotions, 

and flyers, and explained that the resort spent $120,000 on entertainment in 

2009, featuring approximately fifty entertainers during that year. Meals and 

optional lodging are provided to entertainers. 

 Coulombe appeared as a musical entertainer at the resort in both solo 

and group performances beginning in approximately 1980. He also performed 

at other venues but testified that he performed at the resort nearly three 

hundred times in the last two years that he worked there. The resort and 

Coulombe negotiated a pay rate for Coulombe’s services, and he was paid 

weekly for his performances. He provided his own instruments and selected 

the songs he would play in his performances, though the resort asked him to 

perform new material prior to the end of his relationship with the resort. He 

reported that his last booking with the resort occurred on June 2, 2012, after 

which the relationship terminated. He subsequently filed for unemployment 

benefits with DES. 

 On July 19, 2012, DES determined that Coulombe was eligible for 

unemployment benefits. The resort appealed this determination to the DES 

Appeal Tribunal (tribunal). Following a hearing, the tribunal concluded that 

Coulombe “did not provide services in employment” under the exception 

contained in RSA 282-A:9, III (2010). Specifically, the tribunal concluded that 

the resort is in the business of, among other things, “coordinating” 

entertainment, which it distinguished from “the business of singing, playing 

instruments, or other forms of entertainment.” Coulombe’s request for 

reconsideration was denied. 

 Coulombe then appealed to the board. The board initially denied the 

appeal, but upon reconsideration, ruled that the tribunal’s decision was 

erroneous because it drew a “distinction without substance” regarding the 

coordination of entertainment services. Accordingly, the board awarded 

unemployment benefits to Coulombe. The board denied the resort’s 

subsequent motion to reconsider, and this appeal followed. 

 On appeal, the resort argues that: (1) RSA 282-A:65 (2010) required the 

board to affirm the tribunal’s decision; (2) the tribunal’s decision was legally 
3

and factually correct; and (3) the board’s order is “inconsistent with, and 

undermines, the purpose of” RSA chapter 282-A. Coulombe responds that: (1) 

the resort failed to prove that entertainment services in general, and 

Coulombe’s entertainment services in particular, were outside its usual course 

of business under RSA 282-A:9, III(b); and (2) the board’s order is consistent 

with RSA chapter 282-A’s remedial purpose to help unemployed workers like 

Coulombe. 

 RSA 282-A:65 permits the board to reverse the tribunal only in certain 

circumstances. Appeal of N.H. Sweepstakes Commission, 130 N.H. 659, 662 

(1988). The statute provides: 

The appellate board shall not substitute its judgment for that of 

the commissioner or appeal tribunal as to the weight of the 

evidence on questions of fact, or as to the prudence or desirability 

of the determination. The appellate board shall reverse or modify 

the decision or remand the case for further proceedings only if the 

substantial rights of the appellant had been prejudiced because 

the findings, inferences, conclusions, or the decision is: 

I. In violation of constitutional or statutory provisions; or 

II. In excess of the statutory authority of the department of 

employment security; or 

III. Affected by reversible error of law; or 

IV. Affected by fraud; or 

V. Affected by the absence of newly discovered evidence, 

which was not available to the affected party upon 

reasonable search at the time of the first level hearing, in 

which case the appeal shall be remanded to the appeal 

tribunal. 

Otherwise, the appellate board shall affirm the order. 

RSA 282-A:65. 

 

 Judicial review of tribunal decisions, as reversed, modified, or affirmed 

by the board, is confined to the record, and we cannot substitute our judgment 

as to the weight of the evidence on questions of fact for that of the tribunal. 

Appeal of N.H. Sweepstakes Commission, 130 N.H. at 662; see RSA 282-A:67, 

II (2010). We may reverse or modify the tribunal’s decision only in limited 

circumstances. 
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The court shall reverse or modify the decision of the appeal 

tribunal, or remand the case for further proceedings, as 

determined by the court, only if the substantial rights of the 

appellant had been prejudiced because the administrative findings, 

inferences, or conclusions are: 

(a) In violation of constitutional or statutory provisions; 

(b) In excess of statutory authority; 

(c) Made upon unlawful procedures; 

(d) Clearly erroneous in view of the substantial evidence on the 

whole record; or 

(e) Affected by other error of law. 

Otherwise, the court shall affirm the appeal tribunal’s decision. 

RSA 282-A:67, V. 

 The resort challenges Coulombe’s employment status based upon the 

exemption provided in RSA 282-A:9, III, which excludes certain workers from 

the definition of “employment.” See Appeal of Aspen Contracting NE, 164 N.H. 

88, 89 (2012). Under RSA 282-A:9, III: 

Services performed by an individual for wages shall be deemed to 

be employment subject to this chapter unless and until it is shown 

to the satisfaction of the commissioner of the department of 

employment security that: 

(a) Such individual has been and will continue to be free from 

control or direction over the performance of such services, both 

under his contract of service and in fact; and 

(b) Such service is either outside the usual course of the 

business for which such service is performed or that such 

service is performed outside of all the places of business of the 

enterprise for which such service is performed; and 

(c) Such individual is customarily engaged in an independently 

established trade, occupation, profession, or business. 

“The burden is on the party challenging an ‘employment’ determination to 

establish that all three requirements for exclusion have been satisfied; failure 
5

to establish any of them is conclusive proof of employment for purposes of RSA 

chapter 282-A.” Appeal of Aspen Contracting NE, 164 N.H. at 91 (quotation 

omitted). 

 This appeal hinges upon the meaning of RSA 282-A:9, III(b). 

Statutory interpretation is a question of law that we review de

novo. We are the final arbiter of the intent of the legislature as 

expressed in the words of a statute considered as a whole. In 

interpreting a statute, we first look to the language of the statute 

itself, and, if possible, construe that language according to its plain 

and ordinary meaning. Unless we find that the statutory language 

is ambiguous, we need not look to legislative intent. Furthermore, 

we interpret statutes in the context of the overall statutory scheme 

and not in isolation. 

Appeal of Stewart, 164 N.H. 772, 775 (2013) (quotation omitted). RSA 282-A:9, 

III(b) sets forth two circumstances under which a service will not be considered 

employment: when a service is “outside the usual course of the business for 

which such service is performed” or when a service is “performed outside of all 

the places of business of the enterprise for which such service is performed.” 

RSA 282-A:9, III(b). The provision is “disjunctive, meaning that the employer 

needs to show only one of the two alternatives.” Sinclair Builders v. 

Unemployment Ins., 73 A.3d 1061, 1067 (Me. 2013) (interpreting identical 

Maine statutory provision). Neither party argues that Coulombe provided 

entertainment “outside of all the places of business of the enterprise for which 

such service is performed.” RSA 282-A:9, III(b). Therefore, we focus on 

whether Coulombe’s services were outside the resort’s usual course of 

business. 

 “Outside the usual course of the business” can be an elusive concept. 

See Carpet Remnant Warehouse v. Dept of Labor, 593 A.2d 1177, 1186 (N.J. 

1991) (interpreting similar provision in New Jersey statute). We have not 

adopted a general standard as to the meaning of this phrase, but several other 

courts have done so with regard to statutory provisions analogous to RSA 282-

A:9, III(b). See, e.g., Mattatuck Museum v. Unemployment Comp., 679 A.2d 

347, 351 (Conn. 1996); Yurs v. Director of Labor, Dep’t of Labor, Div. of U.C., 

235 N.E.2d 871, 875 (Ill. App. Ct. 1968); Sinclair Builders, 73 A.3d at 1067; 

Bigfoot’s, Inc. v. Bd. of Rev. of Indus. Com’n, 710 P.2d 180, 181 (Utah 1985). 

 We find the Supreme Court of Connecticut’s approach most useful. In 

Mattatuck Museum, the court examined a statutory provision similar to RSA 

282-A:9, III(b), and held that “[i]f . . . an enterprise undertakes an activity, not 

as an isolated instance but as a regular or continuous practice, the activity will 

constitute part of the enterprise’s usual course of business irrespective of its 
6

substantiality in relation to the other activities engaged in by the enterprise.” 

Mattatuck Museum, 679 A.2d at 351. We adopt this standard and conclude 

that Coulombe’s services – and, more generally, live entertainment – were 

within the resort’s usual course of business because they were regularly and 

continuously provided at the resort. See id. 

 The resort emphasizes its other amenities – including lodging, outdoor 

sporting activities, and scenic locations – to argue that the lounge and its 

related live entertainment are not essential to its business. The availability of 

these other amenities and services, however, does not negate the regular and 

continuous presence of live entertainment and, more specifically, Coulombe’s 

performances at the resort. See id. Spanos testified that the resort offers live 

entertainment on sixty to seventy percent of the nights that it is open. 

Moreover, Coulombe’s particular services were provided on a regular and 

frequent basis. He appeared at the resort for approximately thirty years and 

had nearly three hundred bookings in the last two years that he performed at 

the resort. 

 The resort also argues that Coulombe’s services are not within its usual 

course of business because it “does not itself provide live music and it is not a 

band or a group of musicians or singers,” and, “at most, [the resort] 

coordinates scheduling independent musicians such as Coulombe to play in 

the [resort] lounge.” We agree with the board that this is a “distinction without 

substance” in this case. The resort does not merely coordinate live 

entertainment. In addition to the regularity of live entertainment noted above, 

the resort maintains various amenities, including a stage and public address 

system, to facilitate live entertainment, and advertises upcoming performances 

to attract patrons to the resort. Cf. Bigfoot’s, Inc., 710 P.2d at 181 (“Since it 

was usual and customary for the hotel to furnish entertainment in connection 

with its operations, the employment of musicians . . . was within the ‘usual 

course of the business.’”).* 

 Nor are we persuaded by the resort’s suggestion that the board erred by 

failing to appreciate that Coulombe’s services merely contributed to the resort’s 

“ambience.” The resort relies upon Unemployment Compensation Commission 

v. Mathews, 111 P.2d 111, 119 (Wyo. 1941). In that case, the Supreme Court 

of Wyoming assessed the employment status of musicians performing in a 

restaurant and reasoned: 

 

*

 The resort further argues that Bigfoot’s, Inc. is distinguishable because “[t]he employer in 

Bigfoot’s, Inc. operated a beer bar and not a diverse family-oriented resort such as [the resort’s] 

facility” and “[t]here was no evidence referenced in the Bigfoot’s, Inc. case that the beer hall owner 

also featured scenic attractions, dining and other family-friendly activities as part of its business 

and as part of its allure to guests.” We are not persuaded by this distinction, for our analysis does 

not turn on whether the business enterprises are identical or analogous. 
7

If a restaurant owner contracts with a florist to supply flowers for 

his tables, is that a service within the “usual course” of the owner's 

business? Flowers on the restaurant tables give pleasure to the 

owner’s guests as does music played by those who can be hired to 

supply it in the restaurant rooms. Are the florist and those 

employed by him employees of the owner? We are inclined to think 

not. 

Id. The resort cites this language in its brief and, at oral argument, analogized 

Coulombe’s performances to these decorative “floral arrangements” to argue 

that live entertainment is not in the resort’s usual course of business but 

rather a part of the resort’s “ambience.” 

 This argument ignores the significance of Coulombe’s services to the 

resort’s business. Rather than creating mere “ambience,” Coulombe’s services 

were used to attract new business to the resort, whose president and owner 

testified that the business provides “entertainment.” The record includes 

several advertisements featuring Coulombe’s likeness and the name of his 

musical acts. Under these circumstances, we conclude that Coulombe’s 

services were not incidental to, but rather were an integral part of, the resort’s 

business. Cf. Sinclair Builders, 73 A.3d at 1067 (“In order to demonstrate that 

an individual’s services are not within the employer’s usual course of business, 

the employer must show that the service is not an integral part of the 

employer’s business, but is rather merely incidental to it.” (quotations 

omitted)). 

 Finally, the resort contends that the board’s order undermines the 

purpose of RSA chapter 282-A. Specifically, the resort argues that Coulombe is 

an independent contractor who was free to perform, and did perform, for other 

entities, and that the unemployment compensation statute was not designed to 

offer assistance to such individuals. The resort further asserts that the 

“mischaracterization” of singers and musicians as employees could encourage 

New Hampshire businesses to refrain from hiring those individuals and thus 

jeopardize the employment prospects of independent musical artists. 

 “The purpose of our unemployment compensation statute, RSA chapter 

282-A, is to prevent the spread of unemployment and to lighten the burden on 

those workers who are involuntarily unemployed through no fault of their 

own.” Appeal of Aspen Contracting NE, 164 N.H. at 90 (quotation and brackets 

omitted). Because we have determined that Coulombe was an employee for the 

purposes of RSA chapter 282-A, our conclusion is not contrary to the statute’s 

purpose. The resort’s argument that such a decision will impose “significant 

legal restrictions and financial obligations” on businesses and thus “place a 

whole group of independent musical artists out of work” is equally 
8

unpersuasive because the determination of whether a particular entertainer is 

an employee under RSA chapter 282-A turns upon the unique facts of each 

case. 

 Because the resort has failed to demonstrate that it meets the test of RSA 

282-A:9, III(b), we need not consider whether it satisfied the two remaining 

requirements set forth in RSA 282-A:9, III(a) and (c). See id.; cf. Appeal of 

Work-a-Day of Nashua, 132 N.H. 289, 293 (1989). 

 Affirmed. 

 DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred.