                               Cite as 2015 Ark. App. 485


                  ARKANSAS COURT OF APPEALS
                                     DIVISION III
                                      No. E-14-924



                                               Opinion Delivered   September 16, 2015

JEFFERSON-LINCOLN COUNTY                       APPEAL FROM THE ARKANSAS BOARD
CIRCUIT COURT                                  OF REVIEW
                    APPELLANT                  [No. 2014-EC-22]

V.

DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES
EMPLOYER CONTRIBUTIONS UNIT
                     APPELLEE                  AFFIRMED


                              LARRY D. VAUGHT, Judge

       Appellant Jefferson-Lincoln County Circuit Court appeals the October 9, 2014,

 decision of the Director of the Arkansas Department of Workforce Services (Director)

 finding that it was not exempt from unemployment-insurance-tax liability with respect to

 Sweet Burroughs and other similarly situated workers working under the same conditions.

 On appeal, appellant argues that the Director erred in finding that Burroughs was an

 employee. We affirm.

       On May 2, 2014, the Arkansas Department of Workforce Services (Department)

 issued an unemployment-tax-liability letter to appellant with respect to worker Sweet

 Burroughs. Appellant appealed the Department’s findings and requested a hearing pursuant

 to Arkansas Code Annotated section 11-10-308(a) (Repl. 2012). The hearing took place on

 September 25, 2014.
                                Cite as 2015 Ark. App. 485

       At the hearing, Juwana Jackson, the director of the Breaking the Cycle Coordinator

for appellant, testified that Burroughs was a mentor through the Breaking the Cycle

Program, which was designed to aid in the prevention of juvenile delinquency. Burroughs

submitted an auxiliary-probation-officer application to the Jefferson County Juvenile Center

on February 2, 2012. In 2013, appellant paid Burroughs $1552.

       Jackson testified that she was in charge of the mandatory orientation program,

informed the mentors of the confidentiality requirements and what the court did, and

oversaw the progress of the mentors. She noted that the mentoring did not take place at the

court, but rather in the community, such as a school or the juvenile’s home. Jackson testified

that the mentors were not told how, when, or where the mentoring was to be done. The

mentors were not required to wear uniforms, not given supplies to perform their job, and

not reimbursed for gas or mileage. Outside of the orientation, she stated the program did

not provide training, but conducted monthly sessions to inform the mentors of drug trends,

new juvenile laws, and community events. The mentors provided the court with a session-

reporting form if they had contact with the juvenile within that month. The reporting forms

were then put in the court files. She added that she did follow up with the mentors when she

did not hear from them. Jackson testified that Burroughs had filled out a W-9 when she

signed up as a “volunteer mentor” because she was an independent contractor and was

provided with a Form 1099 at the end of the year. Jackson stated that the program was a

volunteer program, but explained that the mentors were able to receive payment through a

grant from the Arkansas Department of Human Services if they chose to do so. Jackson




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stated that the mentors submitted their request for payment when they turned in the session-

reporting form.

       Dorris Rice, the Special Projects Coordinator for appellant, testified that she spoke

with Burroughs about other employment. Rice recalled Burroughs saying that she was a

substitute teacher during the same time that she was a mentor in the Breaking the Cycle

Program. Dennis Johnson, a senior juvenile officer, testified that he and Burroughs attended

the same church. He thought she was a licensed minister and worked with the women and

youth ministries at their church. Finally, Roderick Shelby, chief of staff for appellant,

testified that the court had an interest in making sure the juveniles were progressing after

adjudication if they were placed on probation. He stated that it was the juvenile-probation

officer’s responsibility, not the mentor’s, to ensure that the court’s interest was protected.

       After considering the evidence, the Director found that appellant had failed to meet

its burden of proof to establish any of the three factors set out in Arkansas Code Annotated

section 11-10-210(e) (Repl. 2012), and that the appellant’s relationship with Burroughs

constituted covered employment pursuant to section 11-10-308, resulting in wages subject to

the payment of unemployment-insurance taxes by the appellant. Appellant appeals the

Director’s decision to this court pursuant to Ark. Code Ann. § 11-10-308 (d).1

       On appeal, the findings of the Board of Review are conclusive if they are supported

by substantial evidence. Barb’s 3-D Demo Serv. v. Dir., 69 Ark. App. 350, 353–54, 13 S.W.3d

206, 208 (2000). Substantial evidence is such relevant evidence as a reasonable mind might

       1
         Pursuant to section 11-10-308, appellant had the choice to appeal the Director’s
decision to the Board of Review or directly to this court, and we apply the same standard of
review as if it were appealed from the Board of Review. See W. Land Svcs., Inc., v. Dir., 2012
Ark. App. 161 (applying same standard of review on appeal from Director’s decision).
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accept as adequate to support a conclusion. Id., 13 S.W.3d at 208. We review the evidence

and all reasonable inferences deducible therefrom in the light most favorable to the Board’s

findings. Id., 13 S.W.3d at 208. Even when there is evidence upon which the Board might

have reached a different decision, the scope of judicial review is limited to a determination of

whether the Board could reasonably reach its decision upon the evidence before it. Id., 13

S.W.3d at 208.

       To obtain the exemption contained in section 11-10-210(e), the employer must prove

each of subsections (e)(1) through (3). Stepherson v. Dir., 49 Ark. App. 52, 54, 895 S.W.2d 950,

951 (1995). When there is sufficient evidence to support a finding that any one of the three

requirements is not met, the case must be affirmed. Id., 895 S.W.2d at 951. Section 11-10-

210(e) states:

       (e) Service 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 the service, both under his or her 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
       enterprise for which the service is performed; and
       (3) The individual is customarily engaged in an independently established trade,
       occupation, profession, or business of the same nature as that involved in the service
       performed.

Ark. Code Ann. § 11-10-210 (Repl. 2012).

       In regard to the third requirement, the Director found that appellant failed to

establish that Burroughs was customarily engaged in an independently established trade,

occupation, profession, or business of the same nature as that involved in the service

performed for appellant within the meaning of section 11-10-210(e)(3). Appellant contends

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that Burroughs was “engaged in the business of mentoring troubled youth.” At the hearing,

Johnson testified that he and Burroughs attended the same church, and he thought she was a

licensed minister and sometimes worked with the women and youth ministries. Rice recalled

Burroughs told her she also was a substitute teacher at the time she was a mentor.

Considering the evidence presented, we hold that there was substantial evidence to support

the Director’s finding that Burroughs was not customarily engaged in an independently

established trade, occupation, profession or business of the same nature as that involved in

the service performed for appellant. Because there is sufficient evidence to support a finding

that appellant failed to prove the requirement under section 11-10-210(e)(3), we need not

address the other two requirements. Therefore, we affirm.

       Affirmed.

       VIRDEN and GLOVER, JJ., agree.

       McKissic & Associates, PLLC, by: Jackie B. Harris, for appellant.

       Phyllis A. Edwards, for appellee.




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