                                                                                    FILED
                                                                                Mar 05 2018, 9:24 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Andrew B. Murphy                                          Curtis T. Hill, Jr.
      Faegre Baker Daniels LLP                                  Attorney General of Indiana
      Minneapolis, Minnesota
                                                                Andrea E. Rahman
                                                                Deputy Attorney General
      Angela N. Johnson
                                                                Indianapolis, Indiana
      Faegre Baker Daniels LLP
      South Bend, Indiana

      Paul D. Borghesani
      Law Office of Paul D. Borghesani
      Elkhart, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Q. D.-A., Inc.,                                           March 5, 2018

      Appellant,                                                Court of Appeals Case No.
                                                                93A02-1703-EX-556
              v.                                                Appeal from the Indiana Department
                                                                of Workforce Development,
                                                                Unemployment Insurance Appeals.
      Indiana Department of                                     The Honorable Suzanne E. Manning,
      Workforce Development,                                    Liability Administrative Law Judge.
                                                                Case No. 93484
      Appellee.




      Friedlander, Senior Judge

[1]   Appellant Q. D.-A., Inc. (“Company”) appeals from the determination of the

      Liability Administrative Law Judge (LALJ) that Claimant was an employee of



      Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018                           Page 1 of 20
      Company rather than an independent contractor, such that Company was liable

      to the State for unemployment insurance taxes. We reverse.


[2]   Company presents one issue for our review, which we restate as: whether the

      LALJ’s conclusion that Claimant was an employee of Company under Indiana

      Code section 22-4-8-1 (2006) was unreasonable.


[3]   Company acts as a middleman between qualified drivers and companies that

      manufacture recreational and other large vehicles. Specifically, Company pairs

      drivers with companies for the transport of these vehicles to dealerships and

      customers—known in the industry as “drive-away services.” On January 9,

      2013, Claimant entered into a contract with Company to provide drive-away

      services.


[4]   Claimant subsequently filed for unemployment insurance benefits with the

      Indiana Department of Workforce Development (IDWD). On April 14, 2015,

      the IDWD issued a determination of wage investigation notifying Company

      that it had misclassified payments it made to Claimant. Company filed a

      protest to the IDWD’s determination, and the LALJ held a hearing on

      Company’s protest. Following the hearing, the LALJ concluded that the

      services provided by Claimant constitute employment such that Company

      owed to the State unemployment insurance taxes on payments made to

      Claimant. Company now appeals.


[5]   The Indiana Unemployment Compensation Act provides that “[a]ny decision

      of the liability administrative law judge shall be conclusive and binding as to all

      Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018   Page 2 of 20
      questions of fact.” Ind. Code § 22-4-32-9(a) (1995). When the LALJ’s decision

      is challenged as contrary to law, we are limited to a two-part inquiry into the

      sufficiency of the facts found to sustain the decision and the sufficiency of the

      evidence to sustain the finding of facts. Ind. Code § 22-4-32-12 (1990). Under

      this standard, basic facts are reviewed for substantial evidence, conclusions of

      law are reviewed for their correctness, and ultimate facts are reviewed to

      determine whether the LALJ’s finding is a reasonable one. Bloomington Area

      Arts Council v. Dep’t of Workforce Dev., 821 N.E.2d 843 (Ind. Ct. App. 2005).

      Ultimate facts are conclusions or inferences from the basic facts. Id.


[6]   Company argues the LALJ wrongly determined that Claimant was an

      employee of Company within the meaning of Indiana Code section 22-4-8-1.

      For purposes of determining when an employer is liable for unemployment

      taxes, employment is defined as “service . . . performed for remuneration or

      under any contract of hire, written or oral, expressed or implied.” Ind. Code §

      22-4-8-1(a). Further,


              [s]ervices performed by an individual for remuneration shall be
              deemed to be employment subject to this article irrespective of
              whether the common-law relationship of master and servant
              exists, unless and until all the following conditions are shown to
              the satisfaction of the department:
                       (1) The individual has been and will continue to be free
                       from control and direction in connection with the
                       performance of such service, both under the individual’s
                       contract of service and in fact.
                       (2) The service is performed outside the usual course of the
                       business for which the service is performed.

      Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018      Page 3 of 20
                       (3) The individual:
                                (A) is customarily engaged in an independently
                                established trade, occupation, profession, or
                                business of the same nature as that involved in the
                                service performed; or
                                (B) is a sales agent who receives remuneration solely
                                upon a commission basis and who is the master of
                                the individual’s own time and effort.
      Ind. Code § 22-4-8-1(b). Thus, pursuant to the terms of the statute, all workers

      are presumed to be employees until an employer demonstrates that all three

      factors are fulfilled.


                                     1. Freedom from Control
[7]   To establish that an individual is not an employee, part (1) of the statutory test

      requires a putative employer to demonstrate that the individual has been and

      will continue to be free from control and direction in the performance of such

      service, both under the contract and in fact. See Ind. Code § 22-4-8-1(b)(1). To

      meet this requirement, an employer must show it lacks control and direction

      over the manner, method, and means in which the services are performed by

      the worker. Circle Health Partners, Inc. v. Unemployment Ins. Appeals of Ind. Dep’t of

      Workforce Dev., 47 N.E.3d 1239 (Ind. Ct. App. 2015).


[8]   Here, the LALJ found that Company “provides a two day orientation class to

      its independent contractors which includes ‘the appropriate training for the

      position,’” “a DOT [Department of Transportation] physical, drug screen,

      information on Federal Motor Carrier Safety Act (FMCS) regulations,

      employer policies, and a driving test” and that Company “provides the FMCSR

      Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018         Page 4 of 20
       pocketbook to its independent contractors.” Appellant’s App. Vol. 2, p. 9. The

       LALJ then concluded that although Claimant was free to choose his routes and

       to hire other drivers to perform the service, the orientation “is evidence that the

       claimant was not free from the employer’s right to control.” Id. at 11.


[9]    On appeal, Company argues that the LALJ’s determination is not supported by

       the evidence. Specifically, Company contends that the basis of the LALJ’s

       conclusion—that the orientation provided by Company demonstrates employer

       control—is incorrect.


                                             a. Under the Contract

[10]   Pursuant to the terms of the contract between the parties, Company does not

       employ any individuals to provide drive-away services; rather, it outsources this

       responsibility to third parties with the required experience, knowledge, skills,

       and license to operate commercial motor vehicles. Ex. Vol. 4, p. 14. Claimant

       is a self-employed individual operating as an independent contractor engaged in

       the business of providing drive-away services to various motor carriers and/or

       manufacturing companies on a trip-to-trip basis. Id. Furthermore, it was

       “expressly understood and agreed” that Claimant was an independent

       contractor for the services he provided to Company. Id. at 17, ¶ 1. Claimant

       was “in control of and free to determine the means and manner by which” he

       performed the drive-away services, and he was required to furnish the necessary

       tools, supplies, or materials to do so, including towbars, emergency equipment,

       and cell phones. Id. at 15, ¶ 2 and 16, ¶ 4 a. Although free to determine the

       manner in which he performed, Claimant agreed that he was performing
       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018   Page 5 of 20
       subject to and in compliance with the laws, rules and regulations of both state

       and federal agencies, including but not limited to the FMCSA and the DOT.

       Id. at 16, ¶ 3. In addition, the contract required Claimant to maintain a bond

       account with a minimum balance of $1,000. Id. at 17, ¶ 2.


[11]   Also under the terms of the contract, Claimant was permitted to provide drive-

       away services for other companies. Id. at 15-16, ¶ 2 a. Moreover, Claimant had

       the right to hire qualified drivers to perform drive-away services for him, and, in

       such cases, he would be responsible for the direction and performance of the

       other drivers’ activities. Id. at 15, ¶ 1. Further, Claimant assumed “full control

       and responsibility” for all hours scheduled and worked, wages, salaries,

       workers’ compensation insurance, unemployment insurance, state and federal

       taxes, and fringe benefits for any drivers he hired to provide drive-away

       services. Id. at 17, ¶¶ 1, 1 a.


                                                     b. In Fact

[12]   Jennifer Miller, Company’s Director of Administration, confirmed that

       Company does not employ any individuals with the license necessary to

       provide drive-away services but instead outsources this task to licensed third

       parties. Tr. Vol. 2, pp. 47-48. She testified that Claimant had complete

       discretion as to the route he took for deliveries and that no employee of

       Company oversees, supervises, or evaluates the work of the independent

       contractor drivers or rides with the independent contractors as they are

       performing their services. Id. at 51, 47.


       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018    Page 6 of 20
[13]   Miller further stated that Claimant was responsible for the expense and

       requirements of obtaining/maintaining a commercial driver’s license, lodging,

       fuel, tolls, meals, and return trip transportation. Id. at 80, 50. If Claimant

       towed his own vehicle for the return trip, he was required to provide all the

       proper hitch equipment, including the tow bar and light connectors, as well as

       insurance on the tow car, and the triangles and fire extinguisher required by the

       federal government. Id. Additionally, although Claimant indicated to the

       IDWD wage investigator that he did not have a bond account, Miller testified

       that in fact Claimant did have a bond account and that she was not aware of

       any independent contractor working with Company that did not have a bond

       account. Id. at 61. She explained that the bond account requirement remained

       in effect for the duration of Claimant’s contract and that, if there were any

       claims for which Claimant were liable, he would be responsible for the first

       $1,000 of the claim. Id. at 60.


[14]   Compensation for drive-away services is negotiated on a per trip basis. Id. at

       51. Miller explained:


               A:     We pay on a per mile basis. There [are] times where –
               depending upon where the – where the delivery is going, there’s
               some routes that aren’t as probably [sic] to drivers as desirable as
               other routes. Out East for example where there’s toll roads, and
               he may ask for an additional five or ten cents a mile at that point
               before he would agree to take the – the trip.
               Q:    So that would be sort of a bartering or a negotiation back
               and forth –
               A:       - Yes. –


       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018    Page 7 of 20
                Q:   - between [Company] and [Claimant] about the exact
                compensation?
                A:      Correct.
                Q:     And, if [Claimant] decided he didn’t want to take a trip
                because he wasn’t satisfied with the compensation, did he have
                the ability to do that?
                A:      Yes.
                Q:      And, do you know whether he in fact did that?
                A:      He has in fact.
                Q:      Are there any consequences for not taking a trip?
                A:      No.
       Id. at 52.


[15]   Miller also confirmed Claimant’s right to provide drive-away services for

       Company’s competitors and occasions where Claimant did so, even on the

       same day. Id. at 53-56. Miller further testified that, under his contract,

       Claimant had the right to hire individuals to perform drive-away services for

       him, and in that situation Company was neither involved in the hiring process

       nor did it have the authority to reject someone hired by Claimant. Id. at 49.

       Company also was not involved in how Claimant paid the drivers he hired. Id.

       at 51.


[16]   Miller stated that Company has a DOT number and is a registered motor

       carrier with the DOT. Id. at 42. She testified that Claimant operated under

       Company’s DOT number, which is very common in the drive-away industry.

       Id. at 43. In addition, she explained that the federal motor carrier regulations

       apply to the drive-away industry, including but not limited to hours of service

       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018      Page 8 of 20
       (i.e., the number of hours per day a driver is permitted to drive), drug testing,

       log books, and a DOT physical. Id. at 42-43, 44-45. These regulations are

       mandated by the federal government, and Company is not at liberty to ignore

       them. Id. at 44.


[17]   Specifically with regard to the orientation, Miller testified that the purpose of

       the orientation is to review with the drivers the federal regulations promulgated

       by the FMCSA (Federal Motor Carrier Safety Administration), such as the

       hours of service and the required DOT physical. Id. at 45-46. In addition, the

       orientation session includes policies of Company, which are based upon the

       federal regulations. For instance, the FMCSA has established time frames in

       which certain accidents must be reported to the DOT, and Company

       incorporated these requirements into its company policies. Id. at 46. At

       orientation, Company provides the independent contractor drivers with the

       phone numbers to report accidents, as well as the phone numbers and hours for

       Company’s dispatch offices. Id. Dawn Dennis, Dispatch Supervisor at

       Company, testified that contractor drivers received jobs either by calling in to

       Company’s dispatcher or by receiving a call from the dispatcher. Id. at 85, 87.

       Miller further testified that the orientation does not include: instruction to

       drivers on how to perform their job, instruction on how to plan a route,

       instruction on how to operate efficiently, instruction on how to maximize

       profits, instruction on how to hire driver/employees, or information on how to

       obtain the necessary licenses. Id. at 46-47.




       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018    Page 9 of 20
[18]   IDWD’s sole witness, Investigator Marcia Wager, testified that she never

       inquired into what the orientation entailed, conceded she had no idea what

       Company’s policies were, and that, with the exception of what was contained

       in Claimant’s contract, she did not know specifically what Claimant was

       required to do. Id. at 29-30.


[19]   It is clear from the evidence that Claimant possessed rights that employees do

       not generally enjoy. He had the right to negotiate his compensation for each

       job he agreed to undertake, he had the right to decline work, he had complete

       control over the routes and performance of his jobs, he was free from

       supervision and evaluation by Company or any of its employees, he had the

       right to hire people to perform the jobs for him, and he had the right to

       simultaneously work for Company and its competitors. Moreover, the evidence

       demonstrates that Company’s orientation and policies noted by the LALJ

       simply incorporate the requirements imposed upon it and the independent

       contractor drivers by the federal government. It is undisputed that Company is

       licensed as a motor carrier and that it, as well as anyone it hires to perform

       drive-away services, is required to follow the federal regulations.


[20]   We liken the facts in this case to those in Twin States Publishing Co., Inc. v.

       Indiana Unemployment Insurance Board, 678 N.E.2d 110 (Ind. Ct. App. 1997),

       trans. denied. There, a panel of this Court held that the LALJ erred in

       concluding that individuals who delivered newspapers and shopping guides

       published by Twin States were employees. The Court determined the delivery

       people were independent contractors because they were paid per delivery, and

       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018     Page 10 of 20
       they had complete discretion over the manner, method, and means of

       performing their work—even given the restrictions that they deliver the guides

       by 5:00 p.m. on Tuesdays, place the guides in a dry place, and perform the

       services in a workmanlike manner.


[21]   Similarly, in Alumiwall Corporation v. Indiana Employment Security Board, 130 Ind.

       App. 535, 167 N.E.2d 60 (1960), this Court reversed the Liability Referee’s

       determination that siding applicators were employees of the corporation that

       sold the roofing and siding materials. The applicators received work

       assignments by contacting the office of Alumiwall; they were paid according to

       the amount of siding they installed; and they furnished their own trucks and

       equipment. The applicators could also hire whatever help they deemed

       necessary with Alumiwall having no control over the number of helpers hired,

       the amount the helpers were paid, or whether helpers were retained or fired. In

       addition, the applicators had complete discretion as to the manner and means

       of performing their work, and Alumiwall had no control over the applicators’

       work hours, number of jobs they accepted, or whether they accepted any jobs at

       all.


[22]   In Circle Health Partners, Inc., a panel of this Court reached the opposite

       conclusion. 47 N.E.3d 1239. In that case, the Court affirmed the LALJ’s

       determination that nurses and phlebotomists were employees of Circle Health.

       This decision was based on the fact that the nurses and phlebotomists who

       contracted with Circle Health were given eighteen specific steps to complete in

       conducting health screenings and collecting certain information. In addition,

       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018   Page 11 of 20
       the nurses and phlebotomists were paid an hourly rate for their hours worked,

       were entitled to reimbursement for travel and other expenses, and could not

       conduct the screenings at times other than the hours scheduled.


[23]   With specific regard to the incorporation of and requisite compliance with the

       federal regulations, we find guidance from two cases in particular. In Equal

       Employment Opportunity Commission v. North Knox School Corp., 154 F.3d 744 (7th

       Cir. 1998), the court held that school bus drivers were independent contractors

       and not employees. In looking at the control factor, the court discussed the

       state’s extensive regulation of school bus drivers and stated that the imposition

       of the regulations was insufficient to show the drivers were employees because

       the regulations reflected control by the state, not control by the putative

       employer. Essentially, the employer’s hands were tied by the state because it

       could not contract with a person who did not satisfy the state regulations.


[24]   In SIDA of Hawaii, Inc. v. National Labor Relations Board, 512 F.2d 354 (9th Cir.

       1975), the court reviewed the determination of the National Labor Relations

       Board that taxi drivers were employees instead of independent contractors. In

       doing so, the court recognized that the primary test was the extent of control

       exercised by the alleged employer and disagreed with the Board’s conclusion

       that certain rules and regulations evidenced SIDA’s control over the drivers.

       Rather, the court concluded, the rules and regulations were designed to enforce

       standards of conduct. Most relevant to the present case is the court’s

       recognition that several of the regulations simply incorporated requirements

       imposed on SIDA by its commercial contracts and state and local ordinances.

       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018   Page 12 of 20
       Notably, the court affirmed the concept that “the fact that a putative employer

       incorporates into its regulations controls required by a government agency does

       not establish an employer-employee relationship.” Id. at 359.


[25]   In light of this precedent and the totality of the facts and circumstances of the

       case before us, we determine Company’s one-time orientation session does not

       demonstrate the kind of ongoing control over work methods needed to show

       control and direction under Indiana Code section 22-4-8-1(b)(1). Moreover, we

       do not find the incorporation of federal regulations into Company’s policies to

       be inconsistent with an independent contractor relationship but rather an

       enforcement of standards mandated by the federal government with regard to

       which Company has no authority. Thus, we conclude the LALJ’s

       determination that Claimant was not free from Company’s control and

       direction is contrary to the substantial evidence.


                                    2. Usual Course of Business
[26]   The second factor required to establish that an individual is not an employee is

       a demonstration that the service performed by the individual is performed

       outside the putative employer’s usual course of business. See Ind. Code § 22-4-

       8-1(b)(2). Thus, here, Company was required to establish that the drive-away

       services provided by Claimant were outside of Company’s usual course of

       business.


[27]   With regard to the second factor, the LALJ concluded:



       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018   Page 13 of 20
               The employer is a provider of one-way transportation of
               commodities. The employer chooses to use independent
               contractors to provide the deliver[y] service of the commodities.
               The independent contractors provide those services to the clients
               on behalf of the employer. The employer could not perform the
               work without the independent contractors such as the claimant.
               The claimant’s work was within the usual course of the
               employer’s business.
       Appellant’s App. Vol. 2, p. 11.


[28]   In support of the LALJ’s conclusion that Company is a provider of one-way

       transportation of commodities, IDWD notes in its brief that Company’s

       contract with Claimant states in the introductory recital paragraphs that

       Company is a licensed company authorized to engage in the transportation of

       motor vehicles. See Ex. Vol. 4, p. 14. However, Miller specifically testified to

       the meaning of this recital at the hearing. She explained that this provision

       means that Company is licensed/authorized to transport because it has a DOT

       number but that Company is not in the business of transporting. Tr. Vol. 2, p.

       47. This is confirmed by the terms of the contract as well as by Miller’s

       testimony that Company does not employ any individuals to provide drive-

       away services. Ex. Vol. 4, p. 14; Tr. Vol. 2, pp. 47-48. In fact, one-way

       transportation of commodities is the precise description of the services Claimant

       and the other contractor drivers provide to Company for its clients.


[29]   Miller further testified that Company’s business is assisting its customers by

       pairing them with contractor drivers so that their customers can get their

       product from point A to point B. Tr. Vol. 2, p. 42. IDWD Investigator Wager


       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018   Page 14 of 20
       agreed that, based on her investigation, one way to describe Company’s

       business is that of a middleman between manufacturers and drivers like

       Claimant. Id. at 19.


[30]   Thus, the evidence established that Company’s business is providing brokerage

       services between its customers and those individuals licensed and authorized to

       provide drive-away services. Stated another way, Company functions as an

       intermediary or middleman by employing people to pair its customers

       (manufacturers of RVs and other commercial motor vehicles) with individuals

       who are properly licensed to do the work (Claimant and other drivers).

       Accordingly, Company’s business and Claimant’s business, while

       complementary, are distinct. Therefore, the LALJ’s determination that

       Claimant performed services that are within Company’s usual course of

       business is contrary to the substantial evidence.


                 3. Independently Established Trade or Occupation
[31]   The LALJ concluded that Company established the third factor that Claimant

       was customarily engaged in an independently established trade, occupation,

       profession, or business of transporting commodities. Neither Company nor the

       IDWD disputes this conclusion.


[32]   Accordingly, as Company has established all three factors of the section 22-4-8-

       1(b) test, we conclude that Claimant performed drive-away services for

       Company as an independent contractor and not an employee. Here we pause

       to acknowledge that another panel of this Court recently reached the opposite

       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018   Page 15 of 20
       conclusion in a case similar to this. Company v. Indiana Department of Workforce

       Development, 86 N.E.3d 204 (Ind. Ct. App. 2017) also involved a company and

       contractor driver in the drive-away services industry. There, the Court affirmed

       the LALJ’s determination that claimant was an employee of company because

       company had failed to establish factor 2 regarding the company’s usual course

       of business. In short order, the panel concluded that the transport and delivery

       of large motor vehicles by licensed contractor drivers was not outside

       company’s usual course of business because company was registered as a motor

       carrier with the DOT and competed with companies who offered the same

       drive-away services provided by employee drivers. Nevertheless, we conclude

       that, pursuant to the facts and circumstances presented in this case, Claimant

       was an independent contractor not an employee, and the LALJ’s conclusion to

       the contrary is unreasonable.


[33]   Decision reversed.


       Najam, J., concurs.


       May, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018   Page 16 of 20
       ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
       Andrew B. Murphy                                           Curtis T. Hill, Jr.
       Faegre Baker Daniels LLP                                   Attorney General of Indiana
       Minneapolis, Minnesota
                                                                  Andrea E. Rahman
                                                                  Deputy Attorney General
       Angela N. Johnson
                                                                  Indianapolis, Indiana
       Faegre Baker Daniels LLP
       South Bend, Indiana

       Paul D. Borghesani
       Law Office of Paul D. Borghesani
       Elkhart, Indiana


                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Q. D.-A., Inc.,                                           Court of Appeals Case No.
                                                                 93A02-1703-EX-556
       Appellant,

               v.

       Indiana Department of
       Workforce Development,
       Appellee.




       May, Judge, dissenting.

[34]   Because I would affirm the LALJ’s conclusion that Claimant was an employee

       of Company under Indiana Code section 22-4-8-1, I must respectfully dissent.



       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018                  Page 17 of 20
[35]   As the majority notes, Indiana Code section 22-4-8-1 requires we consider every

       paid worker an employee unless an employer can demonstrate three factors.

       The second of these factors is that the Claimant’s “service is performed outside

       the usual course of the business for which the service is performed.” Ind. Code

       § 22-4-8-1(b)(2). With regard to that factor, the LALJ concluded:


               [T]he employer failed to establish that the claimant was
               performing work that was outside of the usual course of the
               employer’s business. The employer is a provider of one-way
               transportation of commodities. The employer chooses to use
               independent contractors to provide the deliver[y] service of the
               commodities. The independent contractors provide those
               services to the clients on behalf of the employer. The employer
               could not perform the work without the independent contractors
               such as the claimant. The claimant’s work was within the usual
               course of the employer’s business.
       (Appellant’s App. Vol. 2 at 11.)


[36]   In support of those ultimate facts and conclusions, the LALJ entered the

       following findings of fact:


               The employer is a registered motor carrier with the Department
               of Transportation (DOT). The employer’s DOT number is
               [******]. The employer provides one-way transportation of
               commodities. The commodities the employer transports are
               commercial vehicles including motor homes, buses, etc. This is
               referred to as drive away or tow away service. Employer’s Exhibit
               S.
               The employer contracts with clients to provide delivery of the
               commodities. The employer uses independent contractors to
               perform the delivery service. If a commercial vehicle exceeds
               26,000 pounds, it must be operated by someone who has a

       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018   Page 18 of 20
               Commercial Driver’s License (CDL). The employer does not
               employ any employees that have a CDL. The employer could
               not provide the delivery of the commodity without the
               independent contractors. The employer’s contract with the
               claimant specifies that the employer is a company that engages in
               transportation of property, including motor vehicles.
               Department’s Exhibit 3.
       (Id. at 9) (italics in original).


[37]   As the majority notes, another panel of this court recently affirmed an LALJ’s

       decision, based on similar facts, that a driver for another drive-away company

       was an employee of that company. See Company v. Indiana Department of

       Workforce Development, 86 N.E.3d 204 (Ind. Ct. App. 2017). In analyzing

       whether that company proved its driver’s service was outside that company’s

       usual course of business, we stated:


               We have little trouble concluding that Company failed to do this.
               Indeed, the provision of transport and delivery of RVs is not just
               Company’s usual course of business, it seems that it is its only course of
               business. Company is registered as a motor carrier with the United
               States DOT, its name is “* * * * * * * Transport,” Department’s Ex. 7A,
               and it would compete directly with companies who offered the same
               service provided by drivers who were employees. Company contends
               that its usual course of business is not the provision of transport services,
               but, rather, the provision of brokerage services. While perhaps
               technically true, we seriously doubt that customers with RVs to transport
               contact Company to act as a “middle man” between them and
               independent haulers; they call Company to have an RV moved from
               point A to point B and almost certainly do not care how Company
               accomplishes that task. From a common-sense standpoint, the
               Company’s business is transport, and this is the precise service that
               Claimant provided to Company. The LALJ’s conclusion that Claimant
               was, therefore, an employee for purposes of the Act is reasonable.

       Id. at 208-9.


       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018    Page 19 of 20
[38]   Because the facts herein are not appreciably different from the facts in that case,

       I would reach the same result and affirm the LALJ’s conclusion that Claimant’s

       service was within the Company’s usual course of business, such that Claimant

       was an employee of Company. Accordingly, I respectfully dissent from the

       majority’s reversal of the LALJ’s determination.1




       __________________________

       1
         Were I writing a majority opinion affirming the LALJ’s decision, I would also need to address the other
       issues raised by Company on appeal: (1) whether the Internal Revenue Service (“IRS”) determination that
       Claimant was not an employee should be binding in this proceeding; (2) whether Indiana Code section 22-4-
       8-1 is preempted by federal law regarding regulation of motor carriers; and (3) whether the LALJ denied
       Company due process when the LALJ failed to use its subpoena power to require Claimant to appear and
       produce documents demonstrating he was not an employee of Company. Because my opinion herein cannot
       create binding precedent, I will address each of those issues only briefly.
       I would hold the IRS determination of Claimant’s status for federal unemployment tax purposes is not
       binding in Indiana unemployment tax proceedings because, while the two systems are intended to work
       cooperatively to create “a unitary plan for unemployment relief,” Buckstaff Bath House Co. v. McKinley, 308
       U.S. 358, 363 (1939), the two systems have different definitions of “employee.” Compare Ind. Code § 22-4-8-
       1 with 26 U.S.C. § 3306(i) (“‘[E]mployee’ has the meaning assigned to such term by section 3121(d), except
       that paragraph (4) and subparagraphs (B) and (C) of paragraph (3) shall not apply.” Section 3121(d) defines
       an employee based on the common law definition.). See also Department of Labor, Licensing & Regulation v. Fox,
       697 A.2d 478, 485 (Md. 1997) (declining to apply federal test of employment instead of the three-factor test
       adopted by the Maryland legislature).
       I would follow this Court’s reasoning in Company v. Indiana Dep’t of Workforce Dev., 86 N.E.3d at 209-214, and
       hold Indiana Code section 22-4-8-1 is not preempted by the Federal Aviation Administration and
       Authorization Act. And, finally, I would hold any possible error that may have been created by the LALJ’s
       refusal to enforce the subpoena for Claimant’s documents was at most harmless because Company has not
       suggested how Claimant’s documents could be relevant to a determination whether Claimant’s services were
       “outside the usual course of” Company’s business. See Ind. Appellate Rule 66(A) (“No error . . . is ground
       for granting relief or reversal on appeal where its probable impact, in light of all the evidence in the case is
       sufficiently minor so as not to affect the substantial rights of the parties.”).



       Court of Appeals of Indiana | Opinion 93A02-1703-EX-556 | March 5, 2018                           Page 20 of 20
