Peggy Adegeye v. BB Home Healthcare, Relator, Department of Employment and Economic Development, ...

Minnesota Court of Appeals June 24, 2024

Opinion

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-1538

Peggy Adegeye,
Respondent,

vs.

BB Home Healthcare,
Relator,

Department of Employment and Economic Development,
Respondent.

Filed June 24, 2024
Reversed
Johnson, Judge

Department of Employment and Economic Development
File No. 49660329-3

Peggy Adegeye, Brooklyn Park, Minnesota (pro se respondent)

Alicia L. Anderson, Law Office of Alicia L. Anderson, Edina, Minnesota (for relator)

Keri A. Phillips, Minnesota Department of Employment and Economic Development, St.
Paul, Minnesota (for respondent department)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Reyes,

Judge.

NONPRECEDENTIAL OPINION

JOHNSON, Judge

The issue in this appeal concerning unemployment benefits is whether a person who

worked as a personal care assistant did so as an employee or as an independent contractor.
We conclude that the person was an independent contractor. Therefore, we reverse the

decision of the unemployment-law judge.

FACTS

Barbara Burns is a personal-care assistant (PCA) and the owner and proprietor of

BB Home Health Care, LLC (BBHH). In 2020, Burns was asked to assemble a team of

PCAs who could provide around-the-clock care for S.C., who has dementia and lives in a

nursing home. Burns agreed to do so, and BBHH entered into a contract with S.C.’s family

for such services.

In general, when a new PCA begins work for a BBHH client, Burns or another

person introduces the PCA to the client and the client’s family and shows the new PCA

around the client’s home. Burns does not provide training to PCAs when they begin caring

for one of BBHH’s clients. Burns does not supervise or oversee the PCAs who work for

BBHH. Burns typically stops by her clients’ homes “once in a while” to stay in contact

with the client and the client’s family and to ensure that PCAs are adhering to certain

requirements of state licensing agencies.

The agency record in this case shows that BBHH typically used three or four PCAs

to provide around-the-clock care for S.C. Burns told the PCAs to “care for [S.C. as if] she

is your mother or your grandmother.” On any given day, the PCAs independently make

decisions about how to care for S.C. and what her activities should be. The PCAs do not

cook for S.C. or give her prescribed medications; those functions are performed by the

nursing home where she resides.

2
On a monthly basis, the PCAs caring for S.C. agree among themselves on a schedule

and provide it to Burns. Burns does not impose any rules or parameters on the PCAs when

they are making schedules except that they collectively should ensure around-the-clock

care of S.C. and individually should not work more than 24 consecutive hours. If there is

a gap in coverage, whether planned or unexpected, the PCAs inform Burns, who works the

open shift herself to ensure constant coverage.

BBHH pays the PCAs an hourly rate for their work. Burns personally hand-writes

checks to each PCA on a bi-weekly basis based on the number of hours worked by the PCA

during the prior two-week period. BBHH issues 1099 forms (not W-2 forms) to its PCAs

on an annual basis.

In July 2022, Peggy Adegeye began providing care for S.C. through BBHH.

Adegeye was an experienced PCA who had provided care for other persons in the past.

She found work with BBHH through a friend who was one of the existing PCAs providing

care for S.C. Burns and Adegeye signed a four-page contract entitled “Independent

Contractor Agreement.” On Adegeye’s first day of providing care for S.C., Burns

introduced her to S.C., but the PCA who is Adegeye’s friend showed Adegeye around

S.C.’s home and told her about S.C.’s and her family’s preferences. Throughout the three-

month period in which Adegeye cared for S.C., BBHH’s only client was S.C. Adegeye

was free to work as a PCA for other clients.

Adegeye ceased work as a PCA for BBHH in November 2022 for reasons that are

in dispute but not relevant to this appeal. In March 2023, Adegeye applied to the

department of employment and economic development for unemployment benefits. In

3
June 2023, the department made two initial determinations: that Adegeye was an employee

of BBHH and that she is eligible for benefits. BBHH filed an administrative appeal of the

initial determinations. In July 2023, an unemployment-law judge (ULJ) conducted an

evidentiary hearing. Burns appeared on behalf of BBHH and testified; Adegeye appeared

on her own behalf and also testified. Later that month, the ULJ issued a written decision

determining, with respect to the first issue, that Adegeye was an employee of BBHH.

BBHH requested reconsideration. The ULJ affirmed the decision in a written order that

was issued in September 2023. BBHH appeals by way of a writ of certiorari. This appeal

is confined to the first issue decided by the ULJ.

DECISION

BBHH argues that the ULJ erred by concluding that Adegeye was an employee of

BBHH rather than an independent contractor.

Adegeye may receive unemployment benefits only if she was an employee of

BBHH; she may not receive unemployment benefits if she was an independent contractor.

This is so because the department must pay unemployment benefits to an applicant only if

the applicant meets five statutory requirements.

Minn. Stat. § 268.069

, subd. 1 (2022).

The first requirement is that the applicant has filed an application for unemployment

benefits and established a benefit account.

Id.,

 subd. 1(1); see also

Minn. Stat. § 268.07


(2022 & Supp. 2023). To establish a benefit account, an applicant must have earned a

minimum amount of “wage credits” during the relevant period of time.

Minn. Stat. § 268.07

, subd. 2(a) (2022); Samuelson v. Prudential Real Estate,

696 N.W.2d 830, 832


(Minn. App. 2005). “Wage credits” are defined as “the amount of wages paid within an


                                             4
applicant’s base period for covered employment.”

Minn. Stat. § 268.035

, subd. 27 (2022)

(emphasis added). A person performs services in employment if the person “is an

employee under the common law of employer-employee and not an independent

contractor.”

Id.,

 subd. 15(a)(1). For purposes of unemployment benefits, an applicant is

an “employee” if the applicant “is performing or has performed services for an employer

in employment.”

Id.,

 subd. 13(1).

       Whether a person performed services as an employee or an independent contractor

depends on a five-factor balancing test. St. Croix Sensory, Inc. v. Department of Emp’t &

Econ. Development,

785 N.W.2d 796, 800

 (Minn. App. 2010) (citing Guhlke v. Roberts

Truck Lines,

128 N.W.2d 324, 326

 (Minn. 1964));

Minn. R. 3315

.0555, subp. 1 (2021).

Both BBHH and the department cite the five factors as they are set forth in the department’s

administrative rules, which are:

                    A.    the right or the lack of the right to control the
              means and manner of performance;

                     B.     the right to discharge the worker without
              incurring liability for damages;

                     C.     the mode of payment;

                     D.     furnishing of materials and tools; and

                    E.      control over the premises where the services are
              performed.

Minn. R. 3315

.0555, subp. 1. The most important factors are the first and the second.

Id.


       In general, when this court reviews a decision of a ULJ, we review factual findings

“in the light most favorable to the decision,” and we “will not disturb those findings as long



                                              5
as there is evidence in the record that reasonably tends to sustain them.” Wilson v.

Mortgage Resource Ctr., Inc.,

888 N.W.2d 452, 460

 (Minn. 2016) (quotation omitted).

However, “[w]hether an individual is an employee or an independent contractor is a mixed

question of law and fact.” St. Croix Sensory,

785 N.W.2d at 799

. Consequently, if the

relevant facts are undisputed, this court applies a de novo standard of review to the question

whether a person was an employee or an independent contractor.

Id.


       The ULJ stated generally that Adegeye’s testimony was more credible than Burns’s

testimony. But the ULJ did not identify any purely factual issue for which Burns and

Adegeye provided conflicting testimony. At oral argument, we asked counsel to identify

the disputed factual issues. It appears that there are no material factual differences between

the testimony of Burns and the testimony of Adegeye. Accordingly, we apply a de novo

standard of review to the ULJ’s decision. See

id.


       The ULJ determined that four factors (the first, second, third, and fifth) indicate that

Adegeye was an employee and that one factor (the fourth) is “neutral.” On appeal, BBHH

challenges the ULJ’s determinations with respect to the first, third, and fifth factors and

challenges the ULJ’s overall conclusion that Adegeye was an employee of BBHH.

A.     Control of Means and Manner of Performance

       The ULJ determined that this factor indicates that Adegeye was an employee. The

ULJ reasoned that BBHH expected Adegeye to treat S.C. like she would treat her own

mother or grandmother, to abide by S.C.’s preferences, to use a checklist, and to maintain

a daily journal.




                                              6
       BBHH argues that the ULJ erred because BBHH merely identified general tasks but

did not tell Adegeye how to accomplish those tasks and because the checklist and journal

were required by state regulations.

       “The right of control is the most important factor for determining whether a worker

is an employee.” St. Croix Sensory,

785 N.W.2d at 800

. “The determinative right of

control is not merely over what is to be done, but primarily over how it is to be done.” Neve

v. Austin Daily Herald,

552 N.W.2d 45, 48

 (Minn. App. 1996) (quoting Frankle v. Twedt,

47 N.W.2d 482, 487

 (Minn. 1951)).

       The evidence shows that BBHH did not control how Adegeye performed the work

of a PCA. The general directive to treat S.C. as one would treat a mother or grandmother

indicates a low degree of control. This evidence is analogous to the evidence in St. Croix

Sensory, in which there was a lack of detailed instructions but, rather, an expectation that

workers would rely on their own judgment.

785 N.W.2d at 802

. In addition, BBHH

introduced evidence that state regulations require PCAs to use a checklist of tasks and to

maintain a daily journal. This court has stated that “instructions required by laws or

regulations or general instructions passed on by the employer from a client generally do

not evince control.”

Id.

 Furthermore, the department’s oral argument causes us to believe

that the checklist (which is not in the record) guided Adegeye far more in terms of what to

do than how to do the listed tasks. In short, the evidence on which the ULJ relied does not

show that BBHH exercised control over how Adegeye cared for S.C.

       A lack of control also is shown by the abbreviated orientation that Adegeye received

and the lack of supervision or oversight by Burns. Another PCA—the friend of Adegeye


                                             7
who connected her to BBHH—showed Adegeye around S.C.’s residence at the nursing

home. Burns rarely was present at S.C.’s residence when Adegeye provided services.

       In addition, BBHH’s lack of control is indicated by the fact that Burns did not tell

Adegeye when to work. Indeed, Burns usually was completely uninvolved in the task of

scheduling. Adegeye was free to sign up for more shifts, fewer shifts, or no shifts, so long

as the team of PCAs found a way to provide around-the-clock care for S.C. Adegeye was

required to work only the shifts that she had agreed to work. See Boily v. Commissioner of

Econ. Sec’y,

544 N.W.2d 295, 296

 (Minn. 1996) (reasoning, in part, that workers were

independent contractors because they “set their own schedules”).

       Thus, the first factor indicates that Adegeye was an independent contractor.

B.     Discharge Without Liability

       The ULJ determined that this factor indicates that Adegeye was an employee.

BBHH concedes the point. For purposes of this nonprecedential opinion, we accept

BBHH’s concession and conclude that the second factor indicates that Adegeye was an

employee of BBHH.

C.     Mode of Payment

       The ULJ determined that this factor indicates that Adegeye was an employee. The

ULJ reasoned simply that Adegeye “was paid by the hour and received biweekly

paychecks.”

       BBHH argues that being paid by the hour does not necessarily indicate an employer-

employee relationship if hourly pay is the most equitable means of compensating workers.

BBHH cites Don Robinson Motors, Inc. v. Department of Emp’t & Econ. Development,


                                             8
No. A13-0327,

2013 WL 6569923

 (Minn. App. Dec. 16, 2013), in which we concluded

that the workers were independent contractors despite being paid by the hour.

Id. at *3

;

see also Minn. R. Civ. App. P. 136.01, subd. 1(c) (providing that nonprecedential opinions

are “not binding authority” but “may be cited as persuasive authority”). In addition, the

supreme court concluded in Boily that workers were independent contractors despite

receiving regular monthly payments that were not “a fixed salary.” See

544 N.W.2d at 296-97

.

       In this case, BBHH did not use a computerized payroll system to compensate its

PCAs in fixed amounts with direct deposits to their bank accounts. Instead, Burns hand-

wrote checks to PCAs in amounts that depended on the amounts of time they worked during

the relevant pay periods. That mode of payment is not the mode of payment typically used

with employees. Furthermore, BBHH did not withhold payroll and income taxes, which

meant that Adegeye was responsible for her own tax obligations. “Evidence that an

individual is responsible for his or her own tax obligations is indicative of independent-

contractor status.” St. Croix Sensory,

785 N.W.2d at 804

.

       Thus, the third factor indicates that Adegeye was an independent contractor.

D.     Furnishing of Material and Tools

       The ULJ determined that this factor is neutral. BBHH does not challenge that

determination. For purposes of this nonprecedential opinion, we conclude that the fourth

factor does not indicate either an employer-employee relationship or an independent-

contractor relationship.




                                            9
E.     Premises Where Services are Performed

       The ULJ determined that this factor indicates that Adegeye was an employee. The

ULJ reasoned that Adegeye performed her job duties at a nursing home.

       BBHH argues that the ULJ erred because BBHH had no control over the premises

where Adegeye performed her duties. In response, the department argues that (contrary to

the ULJ’s decision) this factor is neutral in light of “the context of the industry involved.”

       BBHH’s argument is supported by caselaw indicating that, if a worker performs

services at a location that is not controlled by the alleged employer, the worker usually is

an independent contractor. See Holzemer v. Minnesota Milk Co.,

259 N.W.2d 592, 593-94


(Minn. 1977) (affirming finding of workers’-compensation court that driver who delivered

goods to customers’ homes was independent contractor); Neve,

552 N.W.2d at 47-49


(reversing ULJ’s decision by concluding that worker who delivered newspapers by vehicle

in rural area was independent contractor); Carey v. Coty Constr.,

392 N.W.2d 746, 749


(Minn. App. 1986) (affirming ULJ’s decision that claimant was independent contractor

based in part on evidence that he worked at job sites belonging to third parties); Ride Auto

Co. v. Department of Emp’t & Econ. Development, No. A13-0134,

2013 WL 6152181

, at

*5 (Minn. App. Nov. 25, 2013) (reversing ULJ’s decision by concluding that workers were

independent contractors, in part because they “work offsite”); Benco Delivery Service Inc.

v. Department of Emp’t & Econ. Development, No. A09-942,

2010 WL 1657294

, at *2

(Minn. App. Apr. 27, 2010) (reversing ULJ’s decision by concluding that workers were

independent contractors, in part because their work “does not occur on Benco premises”);

see also Minn. R. Civ. App. P. 136.01, subd. 1(c). This body of caselaw shows that, if a

10
worker performs services at a third party’s site, the alleged employer does not have control

of the premises, which implies an independent-contractor relationship, not an employer-

employee relationship. In other words, if both the worker and the alleged employer lack

control over the worker’s worksite, the fifth factor is not “neutral” but, rather, is indicative

of an independent-contractor status.

Thus, the fifth factor indicates that Adegeye was an independent contractor.

F. Summary

In sum, three factors (the first, third, and fifth) indicate that Adegeye was an

independent contractor. One factor (the second) indicates that Adegeye was an employee

of BBHH. The parties agree that one factor (the fourth) does not indicate either an

employer-employee relationship or an independent-contractor relationship. The fact that

more factors indicate an independent-contractor relationship supports the conclusion that

Adegeye was an independent contractor.

The conclusion that Adegeye was an independent contractor is consistent with the

nature of the contractual relationship between BBHH and S.C.’s family and the nature of

the working relationship between BBHH and the PCAs who cared for S.C. In essence,

S.C.’s family hired BBHH to find competent and responsible PCAs who could provide

around-the-clock care for S.C. In Burns’s testimony, she described BBHH as “a placement

agency.” The evidence shows that BBHH placed Adegeye with S.C. and that, thereafter,

Adegeye worked independently to provide services to S.C. and her family without

meaningful control by BBHH.

11
Therefore, we conclude that Adegeye was an independent contractor.

Reversed.

Reference

Status: Published
Syllabus: The issue in this appeal concerning unemployment benefits is whether a person who worked as a personal care assistant did so as an employee or as an independent contractor. We conclude that the person was an independent contractor. Therefore, we reverse the decision of the unemployment-law judge.