                                                                                  FILED
                                                                        COURT OF APPEALS
                                                                                DIVISiON II

                                                                        2515 FEB -   3 q@i 8: 55
                                                                         STATE    OF WAS!EtF GTOH
                                                                         BY
                                                                                             Y




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II

DEPARTMENT OF LABOR AND                                                         No. 45033 -0 -II
INDUSTRIES OF THE STATE OF
WASHINGTON,


                                         Respondent,


         v.



LYONS ENTERPRISES, INC. DBA JAN -                                       UNPUBLISHED OPINION
PRO CLEANING SYSTEMS,


                                         Appellant.


        JOHANSON, C. J. —          Appellant Lyons Enterprises Inc., doing business as Jan -Pro Cleaning

Systems ( Lyons), appeals from the superior court' s partial affirmance and partial reversal of the


Board   of    Industrial Insurance Appeals' ( Board) decision            and    order.   Lyons sells janitorial


franchises, and the superior court held that Lyons' franchisees were workers for the purposes of

the Industrial Insurance Act ( IIA),           Title 51 RCW, and that Lyons was required to pay IIA

premiums      for   all   franchisees.    Like the Board,   we     conclude    that Lyons'       franchisees without


employees are workers covered by the IIA, but those franchisees who have employees do not come

within the purview of the IIA. Remand to the Board is appropriate for a factual determination of

which   franchisees had        employees.     We do    not reach   the issue   of equitable estoppel, we reject
No. 45033 -0 -II



amicus curiae International Franchise Association' s ( IFA) contracts clause claims, and we deny

attorney fees. The superior court is affirmed in part and reversed in part.

                                                             FACTS


          Lyons is a distributor of Jan-Pro cleaning franchises. Lyons does not characterize itself as

a " cleaning" business. Although customers enter into contracts with Lyons to clean their facilities,

it is   not   Lyons that does the cleaning.'             Rather, the cleaning is done by franchisees who have

purchased      from Lyons the      right   to   participate   in the " Jan-Pro System."        Clerk' s Papers ( CP) at 23.


          A franchisee becomes a part of the Jan-Pro System by entering into a contract with a

regional distributor such as Lyons. Pursuant to this contract, a franchisee pays a franchise fee up

front, a royalty for use of Jan-Pro' s brands and methods, and management fees for Lyons' business

support       services.   The royalties total 10 percent of the franchisee' s gross billings and the

management         fees total 5    percent of     billings. In practical terms, the more business a franchisee


does, the      more   both the franchisee          and   Lyons benefit.          Finally, the franchisee must enter a

noncompete covenant for the duration of the Jan-Pro contract and for one year thereafter.

          In return for these fees and commitments, a franchisee is permitted to use the Jan-Pro brand

and     trademarks    in business      and   is instructed in Jan-Pro'       s   proprietary cleaning    procedure.    The


franchisee is      also guaranteed a       certain   amount of gross       billing.     Lyons solicits clients, negotiates


and enters      into cleaning     contracts, and     bills   clients on   behalf   of   its franchisees. Lyons does these


acts for the benefit of franchisees who lack experience in administering a business. If a franchisee




1
    Lyons has     seven   full -time   employees, none of whom work as cleaners.                    Lyons has about 100
franchisees.



                                                                 2
No. 45033 -0 -II



solicits a customer itself, the customer must sign a contract with Lyons, and the cleaning contract

becomes Lyons' property.

           All franchisees        are organized as      independent businesses —they         carry their own business

licenses and insurance and pay IIA premiums for their own employees if they have them.

Franchisees also bear the risk of loss in the event a customer fails to pay. A franchisee is free to

reject a cleaning contract, in which case Lyons will provide the franchisee with a replacement

account      in   order   to   maintain      the   guaranteed   amount    of gross    billing.   Lyons may remove a

franchisee from a cleaning contract, but if Lyons does so for a reason other than franchisee
           2
misconduct,        then Lyons        must provide      the franchisee    with a replacement account.     A franchisee


can only be terminated from the Jan-Pro System for cause.

           Before they can do any work, new franchisees are required to complete 30 hours of training

over   5   weeks.    The trainingincludes cleaning techniques and safety procedures as well as how to

run a   business     and   deal   with customers.          Franchisees must also comply with a 422 -page training

manual on Jan- Pro cleaning techniques, a 200 -page safety manual, and a 100 -page policies and

procedures manual.             In order to evaluate franchisees' compliance, Lyons periodically audits its

customers.        But Lyons does not supervise its franchisees during the actual cleaning nor does it

send its own personnel to the job site.


            Franchisees can hire and fire their own subordinates with no input from Lyons, although

the contract specifies that the              franchisee'   s employees must    be "   qualified and competent."   CP at




2"
     Franchisee Misconduct" is defined                 as "   faulty workmanship, untrustworthiness, dishonesty,
providing services in a manner unsatisfactory to one or more Customers, or otherwise defaulting
under      this Agreement       or   its   service contract with     the Customer."    CP at 318.



                                                                 3
No. 45033 -0 -II



328. Franchisees are responsible for training their own subordinates. About 80 percent of Lyons'

franchisees        receive assistance    from   an employee or spouse.           The contract is silent as to whether


franchisees are required to perform any cleaning work themselves. 3

          Finally, franchisees are subject to various conditions in the course of their relationship with

Lyons.       Any    advertising the franchisee does          must   be   approved   by   Lyons.   The franchisee must


have Lyons' permission to transfer or sell the franchise. The franchisee supplies its own equipment

and    materials,     but those    must   be    obtained "   solely from manufacturers and suppliers, and in

accordance with specifications,           that [ Jan -Pro]   authorizes      in writing." CP at 328.


                                               PROCEDURAL HISTORY


          In 2005, Labor & Industries ( L &I) audited Lyons and assessed IIA premiums for two of


its franchisees. L &I reasoned that these two franchisees " did not meet the criteria for independent

contractor under         RCW 51 -[ 08] - 180     and   51 -[ 08] - 195" (    CP at 876) because they did not have a
               4
valid   UBI,       and as a result,   they   were workers     for IIA       purposes.   Lyons understood this audit to


mean that most of its franchisees were not covered workers and were not subject to IIA premiums.


In reliance on this understanding, Lyons expanded its territory and entered into numerous

additional franchise agreements.


          In 2010, L &I audited Lyons again. This second audit found that 18 franchisees were not


workers because they employed workers of their own. But the remaining franchisees were covered


3 The only obligations that the franchisee bears in his or her individual capacity are to complete
the training program, supervise the franchise in its day -to -day operations, and " devote his or her
best    efforts    to managing    and   operating the Franchised Business."             CP at 329.

4
    UBI is   short    for " unified business identifier,"      a number used to identify a business registered or
licensed     with one or more state agencies.           WAC 308 -320 -030( 14).
No. 45033 -0 -II



workers and       did   not    qualify for the       exception         described in RCW 51. 08. 195.           L &I reached this


conclusion      because these franchisees were                  not " free   from direction    and control."    CP at 1640. The


audit found that Lyons had the right to control how work results were achieved, noting that

 exempt     independent            contractors   ordinarily       use   their   own methods. [     Lyons']     extensive training

program        signifies     the    opposite."     CP      at   1639.        The audit further found that because Lyons

negotiated      the cleaning contracts, it         had " control        over [ franchisees']    opportunity for profit or loss."

CP   at   1640.     The audit also noted that Lyons owned the customer accounts and charged the


franchisees various fees. Finally, the audit found that " Lyons Enterprises' business arrangements

with the individuals indicate the expectation that the relationship will continue indefinitely, rather

than for a specific project or period. This is generally considered evidence that the intent was to

create    an    employer- worker         relationship."           CP    at   1640.       Ordinarily, Lyons would have owed

  149, 583. 94 in back         premiums.         But the 2010 audit was " completed with an educational focus


only"     and merely required Lyons to begin reporting and paying IIA premiums on its covered

workers going forward. CP at 1641 ( capitalization omitted).

          Lyons     requested reconsideration of                 the 2010       audit.   Jerold Billings, a litigation specialist


for L &I, determined that Lyons was responsible for IIA premiums for all of its franchisees,

including the 18 who had their own workers. At an administrative law hearing, Billings testified

that L &I had not changed its position since the 2005 audit. Rather, the auditor " made a mistake"

and "   didn' t look    at   the franchise       fully."    CP at 2255 -56.


           Lyons    appealed         to the Board.      After hearing testimony, Industrial Appeals Judge Wayne

B. Lucia issued a proposed decision and order concluding that none of Lyons' franchisees were

 covered workers.




                                                                        5
No. 45033 -0 -II



           L &I   appealed   to   a   three- member    panel of      the Board.   The Board subsequently issued a

final decision      and order     adopting the     position of   the 2010   audit— that   those franchisees with their


own workers were exempt, but the remaining franchisees were covered workers.

           Both Lyons and L &I appealed the Board' s decision, and the administrative law review was


consolidated       in the Pierce       County   Superior Court.        The superior court held that all of Lyons'


franchisees       were covered workers.         Accordingly, it affirmed the Board in part and reversed it in

part. Lyons timely appealed the superior court order.

                                                        ANALYSIS


           The IIA requires employers to report and pay workers' compensation premiums for all of

their workers. Ch. 51. 16 RCW. Therefore, the dispositive question in this case is whether Lyons'


franchisees       are " workers,"     as that term is defined under the IIA.5 To answer that question, we rely

on   two   subsections:      RCW 51. 08. 180,         which   defines the term "    worker,"    and RCW 51. 08. 195,


which contains exceptions to RCW 51. 08. 180. A franchisee that meets the test described in RCW

51. 08. 180,   and   does   not meet    the test   described in RCW 51. 08. 195, is Lyons' "      worker,"   and Lyons


must pay IIA premiums for that franchisee.




5 This inquiry " involves a different analysis than whether the individual is an employee" as that
term is    understood     in the      common
                                                 Group, Inc. v. Dep' t of Labor & Indus., 167 Wn.
                                                law. Xenith
App. 389, 401, 269 P. 3d 414 ( 2012); see also Daniels v. Seattle Seahawks, 92 Wn. App. 576, 584,
968 P. 2d 883 ( 1998), review denied, 137 Wn.2d 1016 ( 1999). A covered worker may be an
employee or an independent contractor so long as the statutory test is met. Norman v. Dep' t of
Labor & Indus., 10 Wn.2d 180, 183, 116 P. 2d 360 ( 1941); White v. Dep' t of Labor & Indus., 48
Wn.2d 470, 474, 294 P. 2d 650 ( 1956); Jamison v. Dep' t ofLabor & Indus., 65 Wn. App. 125, 130,
827 P. 2d 1085 ( 1992). That is, it makes no difference whether Lyons' franchisees are considered
employees or independent contractors.



                                                                 6
No. 45033 -0 -II



            As we explain below, RCW 51. 08. 180 is properly read to mean that all franchisees of

Lyons       are "   workers"   except for those franchisees who have subordinates of their own.


Furthermore, the RCW 51. 08. 195 exception does not apply to the " workers" Lyons maintains.

                                                I. STANDARD OF REVIEW


            The Administrative Procedure Act, ch. 34. 05 RCW, governs judicial review of a Board

decision. RCW 51. 48. 131; R & G Probst                 v.   Dep' t    of Labor & Indus.,       121 Wn. App. 288, 293, 88

P. 3d 413,     review   denied, 152 Wn.2d 1034 ( 2004).                On review, we occupy the same position as the

superior court, and our review is limited to the certified agency record. Xenith Group, Inc. v. Dep' t

of Labor & Indus., 167 Wn.              App.   389, 393, 269 P. 3d 414 ( 2012).               We must reverse if the agency

erroneously interprets or applies the law, the order is not supported by substantial evidence, or the

order   is arbitrary     and capricious.        RCW 34. 05. 570( 3)( d), (      e), (   i).    As the party challenging the

Board' s decision, Lyons has the burden to show that one or more of these criteria were satisfied.

RCW 51. 48. 131; RCW 34.05. 570( 1)(              a);   R & G Probst, 121 Wn. App. at 293.


            An agency' s interpretation or application of the law is reviewed de novo. Xenith Group,

167 Wn. App. at 393 -94. That said, the IIA is a remedial statute and we must construe it liberally

 for the purpose of reducing to a minimum the suffering and economic loss arising from injuries

and/ or     death occurring in the      course of employment."            Johnson v. Tradewell Stores, Inc., 95 Wn.2d


7.39, 743, 630 P. 2d 441 ( 1981) ( quoting RCW 51. 12. 010).                     In interpreting the statute, all doubts

will   be   resolved    in favor   of   the worker. Dennis        v.   Dep' t of Labor &       Indus., 109 Wn.2d 467, 470,


745 P. 2d 1295 ( 1987).


            The agency' s findings of fact are reviewed for substantial evidence. RCW 34. 05. 570( 3)( e).

This means that the court will "view the evidence and its reasonable inferences in the light most


                                                                  7
No. 45033 -0 -II



favorable to the prevailing party in the highest forum that exercised fact -finding authority."

Johnson   v.   Dep' t     of Health, 133 Wn.         App.   403, 411, 136 P. 3d 760 ( 2006). But if a conclusion of


law is labeled as a finding of fact, then it will be treated as a conclusion of law and reviewed de

novo.   Dep' t ofLabor &           Indus.    v.   Mitchell Bros. Truck Line, Inc.,   113 Wn. App. 700, 704 -05, 54

P.3d 711 ( 2002). 6

                                     II. RCW 51. 08. 180 —DEFINING WORKERS


        Lyons argues that its relationship with its franchisees is not one of employer and worker

but rather a bilateral contract between two independent businesses. Essentially, Lyons claims that

it is a separate entity from each of its franchisees and that the franchise agreement establishes the

terms of their business relationship. Lyons argues that its franchisees are not workers because they

can and do hire their own employees to do the work, meaning that their contracts with the

franchisees     are not     for   personal    labor. L &I argues that Lyons' franchisees are covered workers


because the franchisees serve a function that is indistinguishable from the function that an .


employee       in   a   traditional cleaning       service would perform.     Lyons is partially   correct —we   hold


that those franchisees who actually take on their own subordinates are not covered workers, but

those franchisees who work alone are covered under the IIA. We affirm the superior court in part,


reverse the superior court in part, and reinstate the Board' s decision.




6 For instance, in Mitchell Bros., an industrial insurance judge entered a finding of fact that certain
lease- operators were " workers" because they " owned" the vehicles they leased as that term is used
in RCW 51. 08. 180( 1).    113 Wn. App. at 704. Because the finding that the operators were
  workers" turned on the legal conclusion that the workers satisfied a statutory criterion, this court
applied de novo review. Mitchell Bros., 113 Wn. App. at 705.




                                                                 8
No. 45033 -0 -II



         The IIA is     meant    to   provide      broad     workers compensation coverage.               See RCW 51. 12. 010


  it is the   purpose of   this title to     embrace all employments ") ( emphasis added).                     In keeping with

that goal, RCW 51. 08. 180 defines a worker as


         every    person   in this     state who        is   engaged         in the   employment     of ...   or who is
         working under an independent contract, the essence ofwhich is his or her personal
         labor for an employer.


 Emphasis       added.)   The " essence" of a contract means " the gist or substance, the vital sine qua


non,   the very heart     and soul of       his   contract."       Haller      v.   Dep' t   of Labor & Indus., 13 Wn.2d 164,


168, 124 P. 2d 559 ( 1942). What services a contractor provides is a question of fact. But "whether


these   services constitute ` personal            labor' ...      is   a question of     law." Silliman v. Argus Servs., Inc.,


105 Wn.       App.    232, 236, 19 P. 3d 428,            review        denied, 144 Wn.2d 1005 ( 2001).          In determining

whether work is personal labor, we " look to the contract itself, the work, the parties' situation, and

other concomitant circumstances."                   Silliman, 105 Wn. App. at 236 -37; see also Mass. Mut. Life

Ins. Co.   v.   Dep' t of Labor   & Indus., 51 Wn.                App.      159, 163, 752 P. 2d 381 ( 1988). Furthermore, in


deciding whether Lyons' franchisees performed personal labor, we are guided by the Supreme

Court' s test in White     v.   Department of Labor & Industries, 48 Wn.2d 470, 294 P. 2d 650 ( 1956).


                                             A. REALITIES OF THE SITUATION


         In     determining     whether     independent           contractors are workers, we          look to the "`   realities of




the   situation. "'   Dep' t   of Labor & Indus.             v.   Tacoma Yellow Cab Co.,            31 Wn. App. 117, 124, 639

P. 2d 843 ( quoting Ancheta           v.   Daly,    77 Wn.2d 255, 263, 461 P. 2d 531 ( 1969)), review denied, 97


Wn.2d 1015 ( 1982).            There, the appellant companies leased taxi cabs to independent contractors


on a per - mile    payment scheme, subject              only to the         proviso   that "[ t]he taxi cab shall not be operated



by any person except by the            Lessee      or   his regular         employees."       Tacoma Yellow Cab, 31 Wn. App.


                                                                        9
No. 45033 -0 -II



at   123.    Like Lyons, the appellants argued that their relationship with the taxi drivers was merely

one of      lessor   and   lessee   not employer and worker.          We disagreed, holding that the " independent

lease contract" was actually " a method to place taxis and drivers on the city streets of Tacoma to

carry   passengers at rates which are established            by     local   ordinances."       Tacoma Yellow Cab, 31 Wn.


App.    at    124.    The lessee drivers      performed       the    same    function     as   employees      because "[   t]hey

contribute[     d] nothing to the      contract except     their    personal    labor."    Tacoma Yellow Cab, 31 Wn.


App. at 124.

            Like the taxi leases in Tacoma Yellow Cab, the franchise agreements between Lyons and


its franchisees       serve as a method     to   clean   facilities for     customers.     Customers enter into cleaning

contracts with Lyons not the individual franchisees. The essence of these cleaning contracts is that

through      someone' s "    labor,"   the end customer' s facility is made clean. The question then becomes

whether      this labor is "   personal."   In order to answer that question, we turn to the Supreme Court' s


White test.


                            B. DELEGATION OF CONTRACT DUTIES - THE WHITE TEST


             Our Supreme Court has enumerated three types of contractors who will not be covered:

             a) [   Those] who must of necessity own or supply machinery or equipment ( as
             distinguished from the       usual   hand tools) to       perform    the contract ...      or ( b) who
             obviously     could    not perform    the   contract without        assistance . . .     or(c)    who   of

            necessity or choice employs others to do all or part of the work he has contracted
            to perform.


White, 48 Wn.2d at 474. Lyons does not argue that its franchisees owned or supplied specialized


machinery or equipment or that its franchisees could not have performed the cleaning contracts

without assistance. Therefore, only the third prong is at issue here.




                                                               10
No. 45033 -0 -II



         Lyons argues that the third prong of White is satisfied so long as the contractor has the right

to hire subordinates whether or not the contractor actually does so. See Mass. Mut., 51 Wn. App.

at 165 ( no coverage where " the contracting parties contemplated the delegation of duties by the

independent      contractor ") ( emphasis added).               In Lyons' view, the word " personal" in the statute


means   just that —a person         is a worker only if the contract demands the labor of that specific person

and no one else.        See Cook      v.   Dep' t   of Labor & Indus., 46 Wn.2d 475, 477, 282 P. 2d 265 ( 1955)


  Labor that may be done by others under the contract is not personal, as the word is used in the

statute. "), overruled        by   White, 48 Wn.2d 470; Crall              v.   Dep' t   of Labor & Indus., 45 Wn.2d 497,


499, 275 P. 2d 903 ( 1954) (          same),    overruled       by    White, 48 Wn.2d 470.             Our Supreme Court has


specifically rejected that reading of the statute holding that the language of Cook and Crall was

 too broad" and that the IIA was meant to encompass more than " those extremely rare cases in

which the party for whom the work is done requires the personal services of the independent

contractor and        is unwilling that any         part of   the   work   be done     by   someone else."    White, 48 Wn.2d


at 473 -74.


          When the Supreme Court rejected Cook and Crall, it made clear that the third prong of

White    must    be   read   literally —a contractor is excluded if he or she actually " employs others" not .

if he   or she   may    at some point       employ     others.       We have never held that the hypothetical right to


delegate, standing           alone, removed a contractor              from the        purview of   RCW 51. 08. 180.      To the


contrary,     we   have held that          contractual permission          to delegate is "      not   in itself dispositive"   of



whether    the   contractor supplies personal            labor. Jamison          v.   Dep 't ofLabor & Indus., 65 Wn. App.

 125, 133, 827 P. 2d 1085 ( 1992).




                                                                     11
No. 45033 -0 -II



         And in the cases which Lyons relies on, the contractors in question actually employed

subordinates..        See Mass. Mut., 51 Wn.            App.    at    165 ( "   agents may and do delegate significant

portions     of    their   duties to   others ") ( emphasis     added);     see also Silliman, 105 Wn. App. at 237

  Argus      employed others      to do   all of the   security     work ") (   emphasis added); In re James D. Shanley

   Wife, dba, Nw. Mut. Life Ins. Co., No. 870485, 1988 WL 169377,                               at *   3, Bd. of Indus. Ins.


Appeals ( Wash. Sept. 8, 1988) ( "           individual agents can and do employ others to perform at least

part of the contract to sell insurance ").


         But the superior court' s decision went further, holding that even those franchisees who did

employ their        own subordinates were covered workers.                      This decision contravenes the Supreme


Court' s plain holding in White that a contractor who " employs others to do all or part of the work

he has contracted to perform" is not covered by the IIA. 48 Wn.2d at 474. Just as a literal reading

of White forecloses Lyons' legal theory, a literal reading of White also shows that the superior

court erred. Although Jamison may be read to support the superior court' s holding, we do not read

Jamison       so    broadly.      In Jamison, the        court noted        that   although   there " was some evidence



suggesting that one or two of the timber fallers may have had part-time employees helping them

with   the   contract,"      it was not clearly erroneous for the Board to find that Jamison' s independent

contractors were " workers" within the meaning of the act. 65 Wn. App. at 133. We conclude this

language from Jamison is too equivocal to retreat from White' s clear mandate that a contractor


who employs others is not covered by the IIA.




7 In Jamison, we noted that in Tacoma Yellow Cab, we had held that workers were covered despite
having    their     own subordinates.       65 Wn.     App.    at   133.   But nowhere in Tacoma Yellow Cab does it
say that the taxi drivers in question actually had subordinates.

                                                                    12
No. 45033 -0 -II



          Applying the third prong of White, the Board has consistently declined to find contractors

covered where they employed subordinates of their own to do some or all of the contract work.

See In re Mica Peak Constr. LLC, No. 11 21880, 2013 WL 1558338, Bd. of Indus. Ins. Appeals

 Wash. Jan. 15, 2013);      In re Alliance Flooring Serv., Inc., No. 03 32294, 2005 WL 2386288, Bd.

of   Indus. Ins. Appeals ( Wash. June 13, 2005); In re Heartland Indus. Inc., No. 04 13149, 2005


WL 1075898, Bd.       of   Indus. Ins. Appeals ( Wash. Jan. 10, 2005); In re Millennium Exteriors, LLC,


No. 02 11265, 2003 WL 22696992, Bd.                    of   Indus. Ins. Appeals ( Wash. Sept. 9, 2003); In re John


B. Strand et ux dba Strand Enters., No. 93 2772, 1994 WL 396526, Bd. of Indus. Ins. Appeals

 Wash. June 27, 1994); In      re   James D. Shanley           & Wife, 1988 WL 169377; In re Charles G. French,
                                                                                                           8
No. 58223, 1982 WL 20480, Bd.               of   Indus. Ins. Appeals ( Wash.            May   26, 1982).       We   agree.   If a


franchisee   works alone,      then    he   or   she   is necessarily exerting           personal   labor.     However, if a


franchisee employs his or her own subordinates to aid in the cleaning, then the franchisee is

necessarily contributing       more    to the     contract     than   his   or   her   personal   labor —the franchisee is


contributing the labor of his or her subordinates.

          Under White, those franchisees who employ subordinates are excluded from the IIA as a

matter of law. Here, Lyons' franchisees are free to hire subordinates, and many do. See CP at 24

  Approximately 80 percent of the franchisees have employees or assistants, helping them service

the ...    cleaning   contracts. ").   The Board did not err by finding that these franchisees were not




8 While administrative decisions are not binding on this court, we recognize significant decisions
of   the Board as   persuasive authority in interpreting the IIA. O' Keefe v. Dep' t of Labor & Indus.,

 126 Wn.    App.   760, 766, 109 P. 3d 484 ( 2005), review denied, 156 Wn.2d 1003 ( 2006).



                                                                13
No. 45033 -0 -II


           9
 workers. "       Accordingly, we reverse the superior court and reinstate the Board' s decision as to

the franchisees who had subordinates only.

            On the other hand, those franchisees that do not employ subordinates are " workers" and as

to them, we affirm the superior court. Below, we address Lyons' argument that these " workers"


are excluded from the purview of the IIA by statute.

                                              III. RCW 51. 08. 195 EXCEPTION


            Lyons argues that the franchisees were " free from control or direction over the performance

of   the   service"    as required     by   RCW 51. 08. 195( 1),     and " customarily engaged in an independently

established trade, occupation, profession, or business" as required by RCW 51. 08. 195( 3) and, thus,

are    excepted       from    being   considered workers.          Because the franchisees are not independently

established businesses, the statutory exception is inapplicable.

            A contractor who would otherwise be a covered worker may be excluded from the purview

of    the IIA if he      or   she   meets all    six conditions.      RCW 51. 08. 195.      Our focus is on the third


condition:




            The individual is customarily engaged in an independently established trade,
            occupation, profession, or business, of the same nature as that involved in the
            contract of service, or the individual has a principal place of business for the
            business the individual is conducting that is eligible for a business deduction for
            federal income tax purposes.


RCW 51. 08. 195( 3).           All    six subparts must    be   satisfied   for the   exception   to apply —a   contractor




who does not meet any one of these conditions is a " worker" for IIA purposes. Malang v. Dep 't


9 Although the Board' s finding that some franchisees were not " workers" is labeled as a finding
of fact, it is properly analyzed as a conclusion of law because it depends on whether the workers
rendered personal labor. Silliman, 105 Wn. App at 236. But the Board' s conclusion is supported
even on de novo review.


                                                                14
No. 45033 -0 -II



of Labor & Indus., 139 Wn.             App. 677, 689,         162 P. 3d 450 ( 2007). Because the franchisees do not


satisfy   subpart ( 3),   they do not qualify for the statutory exception.

          Subpart ( 3)     requires        that the     contractor   be "   customarily engaged in an independently

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

contract of service, or the individual has a principal place of business for the business the individual


is conducting that is          eligible    for   a   business deduction for federal income tax           purposes."    RCW


51. 08. 195( 3).     Lyons does not argue that its franchisees have principal places of business that are


eligible for a business deduction, only that the franchisees are customarily engaged in an

independently        established      business.       In the unemployment compensation context,10 the language

 customarily         engaged     in   an   independently       established     business" means that the contractor' s


enterprise    must     be "`    created and existing separate and apart from the relationship with the

particular employer, an enterprise               that   will survive   the termination   of that   relationship.'   All -State


Constr. Co.     v.   Gordon, 70 Wn.2d 657, 666, 425 P.2d 16 ( 1967) (                    quoting Baker v. Cameron, 240

Or. 354, 365, 401 P. 2d 691 ( 1965)).


          Here, the franchisees' businesses are intimately tied to their relationship with Lyons. The

Board found, and Lyons does not challenge, that " most [ franchisees] purchased their contracts for

extra   income,      and were not      in the commercial cleaning business           prior   to that   purchase."   CP at 28.


Therefore, the franchisees' businesses were not created " separate and apart" from their franchise


agreement      with     Lyons.        Nor will their businesses survive the termination of the franchise




10 While the unemployment compensation system relies on a different statute, the unemployment
compensation statute is similar to the IIA in that it is a remedial act that is liberally construed.
RCW 50. 01. 010.



                                                                  15
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agreement —        to the contrary, franchisees must terminate their cleaning businesses when they cease

to be Lyons' franchisees, as they are subject to a one -year noncompete agreement when they leave

the   business.     Lyons' franchisees do    not   satisfy RCW 51. 08. 195( 3),   meaning that Lyons cannot

claim the RCW 51. 08. 195 exception. The superior court was correct, albeit for different reasons. 11

We affirm the superior court on different grounds regarding the applicability of RCW 51. 08. 195.

            Because the RCW 51. 08. 195 exception does not apply, the " personal labor" test articulated

in RCW 51. 08. 180 and discussed above is dispositive. As the Board found, those franchisees that

satisfied    the RCW 51. 08. 180 test, i. e.,   those who lacked subordinates, are covered workers and


Lyons must pay IIA premiums for these workers.

                                                   IV. REMAND


            Lyons requests a remand to determine which franchises actually employ their own

subordinates       to do the   work.   L &I argues that the Board' s findings as to which franchisees had


their own subordinates was supported by substantial evidence. We agree with Lyons.

            The record contains conflicting evidence on how many of Lyons' franchisees employed

subordinates. On one hand, the president of Lyons testified that 80 percent of the franchisees used


employees or assistants.         On the other hand, the auditor and the Board both found that only 18

franchisees " provided the labor        of others"   and were   thus exempt   from IIA   coverage.   CP at 191.


Although we defer to the Board' s findings of fact, there is significant reason to doubt the accuracy

of L &I' s estimates. L &I' s auditor testified that he did not speak to any franchisees in the course



11
      The   superior courtcorrectly decided that the RCW 51. 08. 195 exception did not apply —but on
the basis     of   RCW 51. 08. 195( 1), held that Lyons " retained significant control and direction over
the   performance of      franchisees." CP at 2398. The superior court did not reach RCW 51. 08. 195( 3).



                                                         16
No. 45033 -0 -II



of the audit; rather, he relied on a questionnaire that only 49 out of 108 franchisees answered.

Indeed, a number of franchisees who were not listed as exempt in the 2010 audit testified that they

used employees or assistants in their work.


        L &I argues that Lyons failed to name any specific franchisees (besides one, Sung Joo Lee)
                                                    12
whom   it   understood     to have   employees.          This fact is not surprising because Lyons had no

authority   over   the   franchisees'    hiring   decisions.     It should also be noted that Lyons offered


testimony by a number of individual franchisees who might have been better able to indicate how

many   employees     they had, but      the   court rejected   this   testimony   as   duplicative. We hold that the


Board' s decision that only 18 of the franchisees had subordinates was not supported by substantial

evidence and remand for further fact -finding proceedings.

                                                    V. ESTOPPEL


        Lyons argues that even if we agree with L &I' s interpretation of RCW 51. 08. 180 and . 195,


L &I should be estopped from assessing IIA premiums for the remaining duration of Lyons'

franchise   contracts.     L &I argues that estoppel is inappropriate because Lyons could not have


reasonably relied on the 2005 audit to mean that the franchisees were not covered workers.

Because we remand to the Board for further determinations, we do not reach this issue because it


is not yet ripe: the equities may change depending on the Board' s findings.




12 L &I also argues that Lyons waived any argument that the Board' s findings were unsupported
by   substantial   evidence.      This is       untrue —  Lyons identified the challenged findings in its
assignments of error.




                                                           17
No. 45033 -0 -II


                                                      VI. CONTRACTS CLAUSE


         IFA      argues    that L &I' s change in position impaired Lyons' contracts with its franchisees in


violation of the state and federal constitution. We agree with L &I that the State' s purely internal

change to its interpretation of a statute is not subject to the contracts clause.


         U. S. Const.,       art.   I, § 10   provides     that "[   n] o    State   shall ...   pass   any ...        Law impairing the

Obligation     of   Contracts,"      while     Wash. Const.,         art.   I, § 23 provides that "[ n] o        ...   law impairing the

obligations of contracts shall ever                 be   passed."     These clauses are " coextensive and are given the


same effect."            Pierce   County      v.   State, 159 Wn.2d 16, 27               n. 5,   148 P. 3d 1002 ( 2006);        see also




Margola Assocs. v. City ofSeattle, 121 Wn.2d 625, 653, 854 P. 2d 23 ( 1993).

         As   a   threshold       matter,    the contracts clause can only             be violated by      a "   law." See Birkenwald


Distrib. Co.        v.    Heublein, Inc., 55 Wn.             App.      1,    6, 776 P. 2d 721 ( 1989) ( "              However, only a

Legislature       can ` pass'     a ` law'   impairing     contractual obligations. ").            But a plurality of our Supreme

Court has implied that an agency' s departure from a publicly distributed policy memorandum may

have the "    effect of     impairing the          obligations of ...        contracts."     Silverstreak, Inc. v. Dep' t ofLabor

   Indus., 159 Wn.2d 868, 890, 154 P. 3.d 891 ( 2007).                                 Nevertheless, we found no published


Washington decision that has applied the contracts clause to an agency' s internal departure from

its position in a prior enforcement action. Indeed, the United States Supreme Court has recognized

that   agencies      may take        an " evolutional       approach"          to their    own    policy    positions.       Nat' l Labor


Relations Bd.        v.   1 Weingarten, Inc., 420 U. S. 251, 265, 95 S. Ct. 959, 43 L. Ed. 2d 171 ( 1975).


Here, unlike Silverstreak, L &I did not declare to the public that all franchisees would be exempt


from IIA premiums or even that franchisees positioned similarly to Lyons would be exempt from

IIA premiums. In short, IFA fails to point to a " law" that impaired Lyons' contracts.



                                                                       18
No. 45033 -0 -II



          Even if IFA could characterize L &I' s internal policy shift as a " law" for contracts clause

purposes, "[     t] he prohibition against any impairment of contracts ` is not an absolute one and is not

to be   read with     literal   exactness. "'   13 Tyrpakv. Daniels, 124 Wn.2d 146, 151, 874 P. 2d 1374 ( 1994)

 quoting Home         Bldg. & Loan Ass 'n v. Blaisdell, 290 U.S. 398, 428, 54 S. Ct. 231, 78 L. Ed. 413

 1934)).       Rather, the threshold            question   is " whether the state law has, in fact, operated as a


substantial     impairment        of a contractual      relationship." Allied Structural Steel Co. v. Spannaus, 438


U.S. 234, 244, 98 S. Ct. 2716, 57 L. Ed. 2d 727 ( 1978). "[                       I] mpairment is substantial if [Lyons]


relied on the supplanted part of the contract, and contracting parties are generally deemed to have

relied on      existing   state   law pertaining to interpretation        and enforcement."         Margola Assocs., 121


Wn.2d     at   653. Yet, " a      party who enters into a contract regarding an activity ` already regulated in

the particular to which he now objects' is deemed to have contracted ` subject to further legislation

upon    the    same   topic. '     Margola Assocs.,        121 Wn.2d at 653 ( quoting Veix v. Sixth Ward Bldg. &

Loan Ass 'n ofNewark, 310 U. S. 32, 38, 60 S. Ct. 792, 84 L. Ed. 1061 ( 1940)).

           Workers compensation insurance is heavily regulated; the scope of the IIA is broad and its
                                          14
provisions are comprehensive.                    RCW 51. 12. 010;      see also   generally   ch.   51. 12 RCW. The IIA


has




13 IFA cites only to cases involving public contracts that involve a different and more stringent
standard.       Caritas Servs., Inc.      v.   Dep 't of Soc. &   Health Servs., 123 Wn.2d 391, 404, 869 P. 2d 28
 1994); Silverstreak, 159 Wn.2d                 at   890; Margola Assocs., 121 Wn.2d at 653.


14 As IFA points out, the franchising industry is also subject to " onerous" regulation.

                                                                  19
No. 45033 -0 -II



existed since 1911, Laws of 1911, ch. 74, and Lyons should have understood before it entered the

business that it could be subject to changing workers compensation regulations. This is especially

so because the case law has been far from unanimous on the IIA status of contractors. 15 Compare,

e. g.,   Tacoma Yellow Cab, 31 Wn.            App.   117,   with   Mass. Mut., 51 Wn.           App.      159.   When Lyons


imposed 10 -year contract terms on its franchisees, it did so at the risk that the law could change


during those 10 years. We reject IFA' s contracts clause claims.

                                                VII. ATTORNEY FEES


           Lyons argues that it is entitled to an award of attorney fees for this proceeding and the

superior court proceeding should it prevail in this action. L &I argues that Lyons is not entitled to

attorney fees   even   if Lyons    prevails   because L &I'   s position was substantially justified.16 We agree

with L &I.




15 Amici point out that no published Washington decision has ever determined that franchisees are
covered workers of their franchisors. That fact is not as important as amici believe it to be. What
matters is the " essence of the work under the independent contract, not the characterization of the
parties'   relationship."    Dana' s     Housekeeping,      Inc.   v.   Dep' t   of Labor &Indus., 76 Wn. App. 600,
607, 886 P. 2d 1147,        review     denied, 127 Wn.2d 1007 ( 1995).             As previously described, workers
laboring    under a    variety    of   contracts have been found to be             covered under the IIA.  See, e. g.,
Dana' s, 76 Wn.       App.   at   613; Tacoma Yellow Cab, 31 Wn.                  App.   at   123 - 24.   Amici point. to no
reason why franchise agreements should be treated any differently from other labor contracts.

16 L &I also argues that Lyons waived attorney fees for the superior court proceeding by failing to
request fees before the superior court. But Lyons could not have requested fees there because it
did not prevail in that court.


                                                             20
No. 45033 -0 -II



         The " Equal Access to Justice Act" ( EAJA)                         requires a court to " award a qualified party[171

that prevails in a judicial review of an agency action fees and other expenses, including reasonable

attorneys' fees, unless the court finds that the agency action was substantially justified or that

circumstances make an award unjust."                     RCW 4. 84. 350( 1).            Here, Lyons has prevailed on the issue


of whether those franchisees that had their own subordinates were exempt.


         The        question    is   whether       L &I'    s    position   was    substantially justified.         A position is


substantially justified if it         could      satisfy    a "` reasonable person. '          Silverstreak, 159 Wn.2d at 892


 quoting Moen         v.   Spokane    City Police Dep 't, 110              Wn.   App.    714, 721, 42 P. 3d 456 ( 2002)). In the


administrative context,          this is    a   difficult       standard   to   meet.    An agency action may be manifestly

unjust and still       satisfy   a reasonable person.               Silverstreak, 159 Wn.2d          at   889, 892 -93.      Even in


Massachusetts Mutual, which Lyons relies on, the court concluded that the appeal was not


frivolous: "[       w]e have already noted that courts in other jurisdictions have found insurance agents

covered       by   their   respective workmen' s compensation statutes."                      51 Wn.   App.   at   166.   Similarly,

here, L &I' s       position cannot     be      said   to be substantially        unjustified.    This case is highly complex,

involving      the    intersection     of   detailed       statutes   with somewhat           confused    common      law.    L &I' s


position may not have been correct, but it was not untenable. Accordingly, we do not award fees

under the EAJA.




17 ac' Qualified party' means ( a) an individual whose net worth did not exceed one million dollars
at the time the initial petition for judicial review was filed or (b) a sole owner of an unincorporated
business, or a partnership, corporation, association, or organization whose net worth did not exceed
five million dollars at the time the initial petition for judicial review was filed, except that an
organization described in section 501( c)( 3) of the federal internal revenue code of 1954 as exempt
from taxation under section 501( a) of the code and a cooperative association as defined in section
15(   a) of   the   agricultural     marketing      act (   12 U. S. C. 1141J( a)),       may be a party regardless of the net
worth of such organization or cooperative association."                             RCW 4. 84. 340( 5).      There appears to be
no dispute that Lyons is qualified.

                                                                      21
No. 45033 -0 -II



        We affirm the superior court in part, reverse the superior court in part, and remand to the

Board for a determination as to which of Lyons' franchisees employed subordinates to assist in


cleaning.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,

it is so ordered.




 We concur:




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