Covered Employment - Section 8-101(j), 8-201 et seq. and Wages - Section 8-101(z) - Maryland Unemployment Decisions Digest - Appeals
The provisions dealing with covered employment were previously located in Article 95A, Sections 20(m) and 20(g) of the Annotated Code of Maryland. After the law was revised in 1991, these provisions were recodified as Sections 8-101(j) and 8-210 of the Labor and Employment Article of the Annotated Code.
Section 8-101(j) states that covered employment means work that an individual performs for an employing unit that is the basis for benefits. Section 8-201 states that employment is covered employment if it is performed for wages or under a contract of hire. The contract can be written, oral, express or implied.
Earnings used to become monetarily eligible under Section 8-910, and earnings used to serve penalties under Sections 8-1001, 8-1002, 8-1002.1, and 8-1005 must be earnings in "covered employment."
Services performed are presumed to be employment under Section 8-201 regardless of whether or not there is a common law relationship of master and servant between the employer and employee unless it is shown by the employer that a person rendering services comes within all three of the enumerated exceptions in Section 8-205. The employer has the burden of proof. Warren v. Board of Appeals, 226 Md. 1, 172 A.2d 124 (1961). See also, COMAR 09.32.01.18.
The statute does not limit the right of an employer to contract with an employee. However, the statute does authorize those who are charged with its enforcement to look through the "tag" placed on the employment relationship and determine, as a matter of fact, whether the relationship, regardless of what it may be called, comes within the purview of the statute. Warren v. Board of Appeals, supra.
Section 8-205 deals with independent contractors. It states that work performed under any contract of hire is not covered employment if: (1) the individual who performs the work is free from control and direction over its performance both in fact and under the contract; (2) the individual customarily is engaged in an independent business or occupation of the same nature as that involved in the work; and (3) the work is: (i) outside of the usual course of business of the person for whom the work is performed; or (ii) performed outside of any place of business of the person for whom the work is performed. The employer has the burden of proving that the claimant has met all three of these requirements. If the employer fails to meet its burden, the claimant will not be considered to be an independent contractor and will be found to have worked in covered employment.
Sections 8-206 through 8-222 contain a series of specific statutory exemptions from covered employment.
Section 8-208 states that employment is not covered employment if it is performed for a church or for an organization that is "operated primarily for religious purposes." Also, employment is not covered employment if performed by a duly ordained minister or a member of a religious order in the exercise of his or her religious duties.
In determining whether church-affiliated schools are "operated primarily for religious purposes," consideration should be given to the relationship between affiliation with the church and institutional autonomy, including composition of the governing board, degree of supervision by the church, and sources of financial support. Consideration should also be given to the extent of religious indoctrination, including stated purpose, extent of encouragement of spiritual development, composition of the student body, extent of religious exercises, extent of prayer in the classroom, extent of religion or theology classes, degree of intellectual freedom in nontheology classes, composition of the faculty and the degree of academic freedom. Employment Security Administration v. Baltimore Lutheran High School Association, Inc., et al., 291 Md. 750, 436 A.2d 481, 487 (1981). See also, COMAR 09.32.01.19.
The Supreme Court has ruled that schools having no legal identity separate from a church are exempt from unemployment insurance taxation. St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 101 S.Ct. 2142 (1981). Therefore, day and Sunday schools and parochial schools, none of which were separately incorporated, were entitled to have their school employees exempted from taxes imposed by the Federal Unemployment Tax Act and by the complimentary Maryland Unemployment Insurance Law since they were without a legal identity separate from their church or synagogue. Employment Security Administration v. Baltimore Lutheran High School Association, Inc., et al., supra.
The different treatment afforded those schools which are an integral part of a church and those schools which are separately incorporated has a sufficient rational basis and does not violate the principle of equal protection of the laws. Baltimore Lutheran High School Association, Inc. v. Employment Security Administration, 302 Md. 649, 490 A.2d 701 (1985).
I. In General
A. Scope of Section 8-201
The fact that a claimant's earnings are not in covered employment as defined in Section 8-201 does not exempt those earnings from being reported and deducted from a claimant's weekly benefit amount. Vincent v. GEICO, 1072-BH-81.
B. Relation to Section 8-803
Where a claimant's services are found to be noncovered employment under Section 8-201, the earnings the claimant received for those services cannot be considered in determining her monetary eligibility for benefits under Section 8-803. Leftwich, 140-BH-83.
II. Independent Contractor
A. In General
As a result of an award of workers' compensation benefits, the insurance carrier was required to pay for 24-hour nursing care for an injured person. The insurance company agreed to send its checks directly to the nurses, as the family of the injured person could not afford to pay the nurses first and await reimbursement. The insurance company did not hire or supervise the nurses, did not negotiate their salaries with them, and had no authority to fire them. There was no contract of hire between the nurses and the insurance company within the meaning of Section 8-201. Pennsylvania Manufacturers' Association Insurance Company, 3-EA-86.
Where the claimant provided housekeeping services for third parties (elderly county residents), and reimbursement was provided by the employer, the claimant was performing services for the employer under Section 8-201. This case was distinguished from the Pennsylvania Manufacturers' Association Insurance Company case, supra, because the employer was actually a party to the contract, the employer actually recruited the claimant and had the authority to terminate the contract and because the work done by the claimant was work in which the employer itself was also engaged. Harrison v. Washington County Department of Social Services, 966-BH-86.
The employer's purpose was to supply complete medical support services, as well as a facility, to practicing physicians and psychologists. The employer employed 24 individuals to do this. The employer provided such services as billing patients, collection of fees, notification to third party insurance carriers, receptionist services and maintenance services. The physicians and psychologist who conducted their practices at the employer's facility had no active participation in the day to day business operation of the staff of employees at the building. For the services the employer provided, the employer deducted 35 percent of the gross amount of fees which were collected on behalf of the physicians and psychologist. At the end of the month, the employer issued a check to each individual physician or psychologist which represented 65 percent of the fees collected by the employer. Some physicians maintained other offices in which to conduct their practices, while others did not. The physicians and psychologist were not employees because they met all of the requirements of Section 8-205. They were free from control over the performance of their services, their service was separate and distinct from the service provided by the employer and they were customarily engaged in an independently established trade, occupation, profession or business of the same nature as the service in question. Perry Hall Medical Administrative Services, 11-EA-91.
The employer operated a cemetery, mausoleum and pet cemetery. The employer had several individuals performing sales work for his business. These individuals would seek customers to purchase cemetery lots, cremation urns, etc. The sales agents signed a noncompetition agreement with the employer which limited their outside sales work during and after their term of employment. This agreement constituted an element of control within the meaning of Section 8-205(1) and the sales agents, therefore, did not meet the requirements for being an independent contractor under this section. The sales contractor, who recruited, trained and sometimes directly compensated the sales agents was also not an independent contractor because he failed to meet the requirement of Section 8-205(3) that his work be outside the usual course of business or performed outside of any place of business of the employer. Ten percent of the sales contractor's sales took place directly on the employer's premises. Also, his contract called for the use of the employer's office. Springhill Memory Gardens, 29-EA-91.
The employer was a corporation that produced commercial advertising films. The employer contracted with predominantly union workers, but occasionally used nonunion workers. For union workers, the employer was required to pay an individualized wage minimum per day and a $43.00 payment per individual, per day to the union's pension and welfare fund. The employer exercised more than minimal control over all of the workers in question. The services performed were performed at studios and locations leased by the employer. Since the employer's business was to produce commercial films, the studios and locations where the films were shot were the places of business of the employer. None of the workers met all three requirements of Section 8-205; therefore their employment was covered employment. Trahan Films, Inc., 32-EA-92.
The employer printed newspapers. This employer contracted with individuals to deliver its products (i.e., newspapers). The Board applied the "three-prong test" and found that newspaper carriers, writers and salespersons were independent contractors within the meaning of Section 8-205. A detailed analysis is presented therein. Although upheld on appeal, the Board decision as to the newspaper writers was vacated by stipulation of parties. Herald Mail Co., 2990-BH-97.
The employer operated two daily and afternoon newspapers in Frederick County. Three categories of workers - carriers, writers and sales persons were held to be independent contractors under" Section 8-205(2). The Board considered the ten criteria set forth in COMAR .09.02.01.18b(3)(C). The Board was upheld by the Circuit Court for Frederick County in 1998. Great Southern Printing Company, 899-BH-97.
It is the employers' burden to show that factual circumstances meet the three pronged test established in Section 8-205. The employer is in the business of catering or preparing food. It can arrange other services such as waiters and waitresses for the various events of its clients. Clients of the employer determine such things as manner of dress, hours and other requirements of the performance of work of said waiters and waitresses. "Waiters and waitresses are independent contractors and not employees of the Appellant, a catering service". Susan Gage, 740-BR-97.
B. Element: Freedom from Control and Direction
The employer was a private duty nursing agency and a fee charging employment agency. The employer's clients were private citizens who had need of nursing services. The employer referred different types of nursing personnel to various clients. One type of nursing personnel referred to clients was certified nursing assistants (CNAs). The employer retained significant control over the work performance of the CNAs. The CNAs signed a contract. The CNAs did not have to accept an assignment, but once an assignment was accepted, the employer dictated the hours and the rates charged. The employer billed clients and paid the CNAs 80 percent of the billing fee regardless of whether the client paid the fee. The CNAs had to notify the employer if they were ill. The CNAs were not allowed to solicit work from clients and had to keep a written record of all client services rendered. The employer evaluated the CNAs and required them to allow the employer to purchase professional liability insurance at the CNAs' expense. The CNAs performed services in covered employment. The employer retained significant control over the CNAs and the CNAs were not engaged in an independently established trade, occupation, profession or business. Nurses Unlimited, Inc., 37-EA-89.
Where outside travel agents use a travel service solely for the purchase of airline tickets (at a price) for their customers and the travel service has no control over the agents' performance of services for their clients, the first criterion is met under Section 8-205(1).Rinis Travel Service, Inc., 3-EA-84.
In this case, "sales representatives" were held to be independent contractors within the meaning of Section 8-205. It is concluded that the sales representatives were free from the control and direction of the employer. They were also free to sell products and services for a competing company. America's Energy Savers Home Improvement, Inc., 3579-BH-96.
The Court of Appeals in DLLR v. Fox, 346 Md. 484, 697 A2d. 478 (1997) affirmed the Board's decision that Fox, a sole proprietor who trades as "Dental Placements," (furnishing temporary help to dentists' offices, primarily hygienists and dental assistants) was "not a mere referral or brokering service which matches the needs for staffing of dentists' offices with the availability of independent contractors." The Court concluded that the temporary workers were covered employees subject to the employer's direction and control. Nancy S. Fox, t/a Dental Placements, Employer Acct. No. 0028135386.
This "independent contractor" case involved an employer that provided home health care aides to clients at an hourly fee. The employer maintained a list of approximately 99 "aides". The employer provided "clients" with whom an aide would be placed. The Board applied Section 8-205 and concluded that the "aides" were engaged in "covered employment" mainly because of the control exerted by the employer over the aides. The Board cited prior cases, Pharmakinetics, 156-EA-94, Herald Mail Co., 2990-BH-97, Fox, 346 Md. 484 697 A2d. 478 (1997), and Personal Care, 21-BH-99.
The employer performed bio-pharmaceutical services, including clinical evaluations and analytical chemistry services with respect to prescription and non-prescription drugs or products for the pharmaceutical industry. The employer used "volunteers" who were paid. In determining that the "volunteers" were "independent contractors", the board applied the three pronged test of (1) whether the individual performing work was free from control and direction over its performance, (2) whether individuals were customarily engaged in an independent occupation of the same nature, and (3) whether the work is performed outside the usual course of business of the employer. Pharmakinetics Laboratories, 156-EA-94.
C. Element: Outside Usual Course or Places of Business
The claimant was a dentist who worked in the office of another dentist. The claimant worked more or less at his own pace and hours, but the employer required that the claimant's hours be mutually agreed to by both parties. All the services were performed in the employer's office using the employer's equipment, supplies and support staff. The claimant had no office of his own. All of the patients he treated were patients who called the employer's office for services. The employer took great pains to state that the claimant was an independent contractor. There is a strong presumption under the unemployment law that services performed are employment unless certain stringent tests are met. Warren v. Board of Appeals, 226 Md. 1, 172 A.2d 124 (1961). Section 8-201 makes it clear that the Board is not bound by the labels placed on the relationships by the parties. Section 8-205 provides a three-part test to determine whether an individual is an independent contractor. Unless all three factors are present, the only conclusion the Board can draw is that the relationship between the parties is employment. In this case, the requirement that the service is outside of the usual course of business of the person for whom the service is performed has not been met. All services performed were that of a dentist which is exactly the employer's business and all services were performed in the employer's office. The claimant's employment was covered employment. Levine v. Harvey Levy, D.M.D., 498-BR-88.
Delivery drivers were engaged in covered employment and not independent contractors. The Board differentiates between "delivery drivers" and "messenger services" as set forth in Section 8-206(d) of the law. As to the independent contractor issue the Board concluded that the work described in the cases were neither "outside of the usual course of business", nor was it "performed outside of any place of business." Brenco, 2089-BH-99, CWS, 2088-BH-99, P.G. Deliveries, 2039-BH-99, Landshark, 2090-BH-99.
D. Element: Customarily Engaged in Independently Established Trade, Occupation or Profession
Where outside travel agents are customarily engaged in an independently established occupation as travel agents, free from the control of the travel service, the test under Section 8-205(2) is met. Rinis Travel Service, Inc, 3-EA-84.
The employer operated a collection service. The employer hired individuals to market its services. These individuals were not free from control over at least a portion of their performance. Each had been subject to one day of training, each had been provided names and addresses of prospective clients, and the employer set the minimum price at which their product could be sold. Also, each individual was subject to a noncompetition clause which extended for a six-month period from the date of termination. The employer was unable to substantiate that any of these individuals were customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service in question. Since none of these individuals met the requirements for being an independent contractor under Section 8-205, their earnings were in covered employment. Modern Systems International, 44-EA-91.
E. Volunteer Test Subjects
The employer performed evaluations of prescription and nonprescription drugs for the pharmaceutical industry. The evaluations provided data that the pharmaceutical companies needed in order to obtain government approval to market new products. The employer used volunteer test subjects to test certain drugs. The volunteers selected the study in which they would participate. The volunteers then signed a consent form and received a dose of the drug. Other than providing blood and urine samples, the volunteers were not required to perform any work. Volunteers were always free to leave any time and were paid for the portion of the test they completed. The employer paid the volunteers a fee based upon the level of risk of the study and the time required to eliminate the drug from the volunteer's biological system. Many volunteers were involved in multiple studies with the employer and other drug companies. The volunteers were independent contractors since they met all three requirements of Section 8-205. Pharmakinetics Laboratories, 156-EA-94. See also, Maryland Code, Labor and Employment Article, Section 8-222, effective October 1, 1995.
F. Cab Drivers
Where a self-employed cab driver is not performing services in covered employment pursuant to Section 8-206(d), his earnings as a cab driver cannot be included in his quarterly wages for determination of his weekly benefit amount. However, this section does not provide for a total disqualification of benefits and therefore other earnings from covered employment could be used. Pearson v. Arrow Cab Company, 153-BR-84.
G. Agricultural Employment
"Agricultural work" as defined in Section 8-207 was considered by the Board in Caroline Smith. In this case, the claimant was employed as a sales clerk selling horticultural products for Friedler's Greenhouse. Generally, agricultural work is not covered employment unless the work is performed for a person who pays cash wages at least $20,000.00 during a calendar quarter or preceding year to individuals who perform agricultural work; or for a person who employs at least ten individuals in agricultural work for a part of a day in each of 20 consecutive or non-consecutive weeks during the current or preceding calendar year, regardless of whether the individuals are employed at the same moment. Caroline Smith, 508-DR-94.
III. Student or Intern Status
A. In General
The claimant was employed as a research assistant for the University of Maryland. He was separated from employment due to lack of work. During the time he was employed, he was not a student at the University of Maryland. Section 8-220(b) provides that service performed in the employment of a school, college or university will not be covered employment if that service is performed by a student who is enrolled and regularly attending classes at that school, college or university. This section of the law does not disqualify the claimant from receiving benefits because he was not a student at the University of Maryland during the time that he worked as a research assistant. Harvey v. University of Maryland, 684-BH-88.
The Board concluded that a "postdoctoral fellow" was not a student but an employee within the scope of Section 8-220(c)(2). In this case, the claimant was neither "enrolled nor regularly attending classes" nor was he enrolled for credit. The claimant performed services for the employer for which he was paid through a grant. Francis P. Saitta v. Johns Hopkins University, 3088-BH-97.
B. Work-Study Program
Where the claimant was employed by a work-study program under which the money for her earnings was provided by a federal grant to her employer, the claimant was not providing services in covered employment within the meaning of Section 8-221. Glascoe v. Regional Planning Council, 10-BH-82.
Where a claimant began working part-time under a vocational work-study program, and later ceased his studies and became a full-time employee, the claimant's full-time services were in covered employment within the meaning of Section 8-220(c). The claimant received no school credit for the full-time employment, and his work was not part of his educational courses. Alexander v. Elderburg Arc Welding Company, 714-BR-82.
IV. Commission Sales
Where the claimant received a car allowance of $15.00 per week, and did not have to account to the employer for this allowance, the allowance removed the services from the exemption of Section 8-209(a), and the claimant's services were in covered employment for the period in which he received the allowance. Schmidt v. Monumental Life Insurance Company, 16-BH-83.
V. Family Relationship
Section 8-215 states that employment is not covered if performed for a child or spouse or for a parent, by a child under the age of 21 years. Although the employer's son was under the age of 21 at the time the services at issue were performed, he performed the services for the corporation which his father owned, and not for his father personally. Therefore, this exemption is not applicable and his employment was covered employment. Trahan Films, Inc., 32-EA-92.
VI. Policy Making Positions
Section 8-212(c)(2) exempts from the definition of covered employment, service performed in a position that, under the laws of the state, is designated a major nontenured policy making or advisory position. Therefore, the chief of the Montgomery County Police Department was not performing services in covered employment, where he was in charge of a large police department and his duties necessarily involved advice and formulation of policy on a grand scale. DiGrazia, 1194-BH-80.
The services of a chief of police of a very small police department (five people total) in a small town are in covered employment and not exempt under Section 8-212(c)(2), where the police commission actually set policy and the chief was primarily involved in the day-to-day duties of a police officer. The claimant's position was not a "major nontenured advisory or policy making position" within the meaning of the law. Hodgins v. Mayor and Commissioners of Delmar, 356-BH-84.
VII. Employees of Private Church-Related Schools
A. Schools Which Are Not Separately Incorporated
Where a Catholic private school is not separately incorporated, the only question is whether or not the employees of the school are employees of a "church" within the meaning of 26 U.S.C., Section 3309(b)(1)(A). La Reine High School, 6-EA-83.
The employer, the Fawn Grove Christian Academy, was created in 1984 by the church board of the Fawn Grove Church of the Nazarene. The academy was not separately incorporated. Lacking separate incorporation, the academy did not have a legal identity separate from the church. The academy was part of the church. The Supreme Court has ruled that schools having no legal identity separate from a church are exempt from unemployment taxation. St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 101 S.Ct. 2142 (1981). The claimant, therefore, performed services for this school which were not covered employment under Section 8-208(b). The claimant's earnings cannot be used to make a monetary determination within the meaning of Sections 8-201 et seq. and 8-803. Russo v. Fawn Grove Christian Academy, 898-BR-91.
B. Schools Which Are Separately Incorporated
A corporation establishing a school is clearly not a church, even though the directors of the corporation are from a particular religious order. Penley v. Mt. St. Joseph's High School, 899-BH-83.
In its remand to the Board, the Court of Appeals stated that Catholic private schools which are separately incorporated must show that they satisfy both requirements of 26 U.S.C., Section 3309(b)(1)(B). Employment Security Administration v. Baltimore Lutheran High School Association, Inc., et al., 291 Md. 750, 436 A.2d 481 (1981). In order to meet the requirements of this section, the school must show that it is: (1) an organization operated primarily for religious purposes, and (2) that it is operated, supervised, controlled or principally supported by a church or convention or association of churches. Baltimore Lutheran High School, 5-EA-83.
C. Operation by "Church"
The Supreme Court has held that the word "church" means "the congregation or the hierarchy itself, that is, the church authorities who conduct the business of hiring, discharging, and directing the church employees." St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 101 S.Ct. 2142 (1981). Under this definition, an order of Catholic nuns is a "church." The order is a highly organized body of individuals whose entire lives are dedicated to religious purposes with additional "missions" of teaching and nursing. The order has its own hierarchy but considers itself part of the Roman Catholic Church. Therefore, where a private Catholic school is owned and operated by the order of nuns and is not separately incorporated, its employees' earnings are exempt from unemployment insurance taxation. Since the school is owned and operated by a church, it is not necessary to determine whether the school is operated "primarily for religious purposes." In determining whether or not an organization of individuals is a church for the purpose of determining exemption from an unemployment insurance law, a liberal interpretation should be given to the word "church" in order to prevent possible discrimination among religions based upon the organizational structure of different religions. La Reine High School, 6-EA-83.
Where the board of directors of a Lutheran high school is controlled by delegates of an association of churches, the school clearly meets the requirement of 26 U.S.C., Section 3309(b)(1)(B) that it be "operated, supervised, controlled or principally supported by a church or convention or association of churches." Each Lutheran congregation sends four delegates to the association of Lutheran Churches, and the board of directors is chosen directly from that association. Baltimore Lutheran High School, 5-EA-83.
D. Operation "Primarily for Religious Purposes"
Considering the following factors, the Board ruled that the Georgetown Preparatory School, although operated, supervised, controlled and principally supported by a church, was not operated "primarily for religious purposes:"
- (1) The primary purpose of Georgetown was to run a school and impart a secondary education recognized by the state of Maryland and prestigious secular colleges and universities;
- (2) Almost all graduates attended secular colleges;
- (3) Formal religious classes constituted a small part of the curriculum (approximately 1/8);
- (4) Neither students nor teachers must be Catholic;
- (5) Aside from formal religion courses, the moral conduct required of both teachers and students was no different from the conduct required of teachers and students at any other school;
- (6) Seven-eighths of the teachers' time was spent teaching nonreligious (secular) subjects designed to prepare students for admission to prestigious secular colleges and universities;
- (7) The religious atmosphere did not so permeate the life of the institution as to make the entire school primarily religious. The primary purpose of teaching a nonreligious subject was not religious, even though it may be taught by a religious person, in the presence of religious symbols and/or after a short religious prayer; and
- (8) There was substantial evidence of nonreligious and time-consuming extracurricular activities.
Therefore, services performed for the school by persons who were not members of a religious order were covered employment under Section 8-208(b) and 26 U.S.C., Section 3309(b)(1)(B). Georgetown Preparatory School, 10-EA-82.
Considering the following factors, the Board ruled that Yeshiva High School was operated "primarily for religious purposes:"
- (1) The amount of each student's day that was taken up with religious courses (one-half day) in addition to the required attendance at daily services and the abundance of after-school and weekend religious activities;
- (2) The separation of sexes according to religious dogma and strict dress requirements (which included for boys the wearing of religious garments for all classes);
- (3) The religious composition of the student body (100% Jewish);
- (4) The high percentage of students who attended religious institutions of higher learning after graduation;
- (5) The school's stated purpose and bylaws which contained an exception for religion under the nondiscrimination requirement in the admissions section;
- (6) The fact that the school also operated as an orthodox synagogue; and
- (7) That the principal of the school, who oversaw the entire school, including the secular studies department, must be a rabbi.
All of these factors, but especially the dominance of religious studies in the curriculum, set this case apart. Therefore, any employee's services performed for this employer were not covered employment within the meaning of Section 8-208(b). Feldman v. Yeshiva High School of Greater Washington, Inc., 878-BR-84.
E. Services of Members of a Religious Order
Section 8-208(c) provides that "employment" does not include services rendered by members of a religious order in the exercise of duties required by that order. Therefore, services rendered by members of the Society of Jesus (a religious order of the Roman Catholic Church) for the Georgetown Preparatory School, which is run by that religious order, are not covered employment within the meaning of the law. Georgetown Preparatory School, 10-EA-82.
The services performed for the Baltimore Lutheran High School by installed ministers of religious education are exempt from coverage under 8-208(c). Baltimore Lutheran High School, 5-EA-83.