| IN RE: JAMES D. SHANLEY & WIFE, dba, NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY | ) | DOCKET NO. 870485 |
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| FIRM NO. 329975 | ) | DECISION AND ORDER |
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- APPEARANCES
- Firm, James D. Shanley & Wife, dba,
- Northwestern Mutual Life Insurance Company, by
- Carney, Stephenson, Badley, Smith,
- Mueller & Spellman, P.S., per
- Janet L. Stauffer
- Department of Labor and Industries, by
- The Attorney General, per
- Dennis J. Beemer, Assistant
This is an appeal filed by the firm with the Board of Industrial Insurance Appeals on February 9, 1987 from a Notice and Order of Assessment of Industrial Insurance Taxes of the Department of Labor and Industries dated January 12, 1987 which assessed the firm, James D. Shanley and Wife, for taxes due and owing to the State Fund in the amount of $ 8,457.95, which accrued between July 1, 1984 through June 30, 1986. Reversed and remanded.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the employer to a Proposed Decision and Order issued on February 19, [2] 1988 in which the order of the Department dated January 12, 1987 was reversed and remanded to the Department with instructions to assess $8,305.98 against James D. Shanley and Wife for taxes which have accrued between July 1, 1984 through June 30, 1986.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed.
The three issues presented by this appeal are accurately set forth in the Proposed Decision and Order. We agree with the Proposed Decision and Order that the Department was correct in assessing additional premiums for the employer's salaried clerical personnel under the provisions of WAC 296-17-350(5) in the amount of $ 446.29. We agree with the Proposed Decision and Order that the Department was incorrect regarding the additional premiums assessed with respect to Mr. Howard Stetson, in the sum of $ 151.97. The third issue raised by this appeal cannot be disposed of quite so succinctly, as it concerns the characterization of the relationship between certain insurance agents and the appealing firm. The Department determined, and the Proposed Decision and Order affirmed, that these agents are workers within the meaning of RCW 51.08.180. We have granted review on this issue due to the recent decision of the Court of Appeals, Division I, in Massachusetts Mutual Life Insurance Company v. Department of Labor and Industries, 51 Wn. App. 159 (1988) which alters the legal basis upon which the Proposed Decision and Order relied.
The chief area of dispute between the Department and the firm in [3] this case is the interpretation of RCW 51.08.180. That statute extends the definition of a worker to a person who is ". . . working under an independent contract, the essence of which is his or her personal labor ...." The Department of Labor and Industries determined that the individual insurance agents were workers because the essence of their contract with the firm was their own personal labor in the promotion and selling of insurance.
The firm has emphasized in its presentation of evidence the independent and highly individualized nature of the tasks performed by insurance sales agents in promoting their insurance products. In a previous decision by this Board involving not only insurance agents but also facts that are very close to the present case, the Board majority agreed with the Department in determining that the essence of the contractual relationship between the insurance company and its insurance agents was the personal labor of the agents. In re Family Life Insurance Company, BIIA Dec. 63,147 (1984). In the Massachusetts Life Insurance case referred to above, the court of appeals, working with facts also very close to the present case, determined that insurance agents are true independent contractors and that their personal labor is not the essence of their employment agreement with the insurance company.
James Shanley is a general agent for Northwestern Life Insurance Company who has eighteen sales agents working under contract with him. There is no dispute by the Department as to Mr. Shanley's description of the relationship between Mr. Shanley and these eighteen insurance [4] sales agents. Each agent is required to provide his or her own fidelity bond and is allowed to sell other forms of noncompeting insurance based upon the needs of prospective purchasers. The insurance agents are required to pay their own office expenses and office staff except for a brief two-year period in which the firm shares in the start-up costs for new agents. The agents also set their own hours and methods of soliciting clients. In some cases the individual insurance agents employ office staff for the purpose of soliciting clients and customers by telephone and other means. In summary, the consistent factual theme running through this case as well as our earlier decision in Family Life and the court of appeals decision in Massachusetts Life Insurance is the highly unstructured relationship between a sales agent and the general agent, in order to allow the greatest latitude to the sales agent in conducting his or her own sales endeavors.
The court of appeals in Massachusetts Life Insurance relied heavily on the leading Washington State Supreme Court decision in this area, White v. the Department of Labor and Industries, 48 Wn. 2d 470 (1957). In discussing which kinds of independent contracts would be considered covered under the Industrial Insurance Act (RCW 51.08.180) the court of appeals in Massachusetts Life Insurance stated that there were:
three independent contracting situations which the Legislature intended to exclude from the expanded definition of workman. Excluded from the Act's coverage was the independent contractor (1) who of necessity owned or supplied machinery or equipment (as distinguished from the usual hand tools) to perform the contract, or (2) who obviously could [5] not perform the contract without assistance, or (3) who of necessity or choice employed others to do all or part of the work he has contracted to perform.
Massachusetts Life Insurance, at 163-164; See also White, at 474.
This three pronged test is often quoted and applied to determine whether an independent contractor is a worker within the meaning of RCW 51.08.180. However, for a clear understanding of the White decision, it is essential to look behind this test at the rationale for the court's opinion.
The White court concluded that, in expanding the definition of "worker" in 1937 to include independent contractors, the Legislature
intended to protect workmen (and to make contracting parties for whom the work is done responsible for industrial insurance premiums) in those situations where the work could be done on a regular employer-employee basis but where, because of the time, place, manner of performance, and basis of payment, it could be urged that the workman was an independent contractor rather than an employee.... It was felt to be desirable, and rightly so, to eliminate the technical issue of whether the workman was an employee or an independent contractor by giving him protection in either situation.
White, at 474. This very same language was relied on by the court of appeals in Massachusetts Life Insurance, at 163.
Thus, while the court of appeals in Massachusetts Life Insurance focused especially on the third criterion of White, the inquiry involved more than a simple application of the White "test" to the [6] facts of that particular case. As the court stated in Lloyd's of Yakima v. Department of Labor and Industries, 33 Wash. App. 745, 749 (1982), in order to determine whether an independent contractor is a worker within the meaning of RCW 51.08.180, one must look to "the contract, the work to be done, the situation of the parties, and other attendant circumstances." See also Massachusetts Life Insurance, at 163.
In reviewing the facts of this case, it is apparent that the eighteen sales agents are employers in their own right. They can and do hire others to perform certain of their functions. Indeed, there are many aspects of the insurance business which the individual insurance agent does not perform him or herself. While the solicitation of new business contacts by telephone or other means may be the most obvious example of delegation of the contractual duties by the sales agent, there are, no doubt, others. It seems clear that the purpose of any office staff hired by the individual agent is to allow the agent the greatest latitude and flexibility in rendering advice to prospective clients and freedom from tasks not requiring his or her specific authority or supervision. The full extent to which an agent's office staff assists in the selling of insurance was not fully developed in the record. We will not speculate here as to what other tasks the secretaries and other persons employed by an individual agent may perform in the promotion of an agent's individual sales practice. Suffice it to say that it appears that individual agents can and do employ others to perform at least part of the contract to sell insurance. [7]
Thus, in light of the third criterion of White as well as the rationale of that decision, it is apparent that the sales agents here, like the sales agents in Massachusetts Life Insurance, are not workers within the meaning of RCW 51.08.180. The Department's assessment of premiums for these agents must therefore be reversed.
At the time of the Board majority's decision in Family Life there were no Washington cases interpreting the "personal labor" provision of RCW 51.08.180 as it applied to insurance agents. We expressly overrule our decision in Family Life to the extent it expresses an analysis of the independent contractor relationship different from that set forth herein.
FINDINGS OF FACT
The Board adopts proposed Findings of Fact 1, 2, and 4 and Proposed Conclusions of Law 1, 2 and 3 as the Board's final Findings of Fact and Conclusions of Law and incorporates the same herein by reference. The Board also makes the following Findings of Fact and Conclusions of Law.
3. James D. Shanley and Wife employed a clerical staff of fourteen during the inclusive period from July 1, 1984 through June 30, 1986. Some of these persons were hourly employees and some were salaried. Shanley correctly reported his hourly employees to the Department of Labor and Industries. Shanley reported his salaried employees' hours as 140 hours per month. The Shanley firm did not maintain complete and accurate records, supported by original time cards or timebook entries for these salaried employees and therefore was required to report assumed hours based upon 160 worker hours for each month in which the employee was on salary pursuant to WAC 296-17- 350(5). The firm therefore owes the Department $ 446.29 as additional premiums for industrial insurance coverage for salaried clerical workers [8] during the inclusive period from July 1, 1984 through June 30, 1986.
5. During the period from July 1, 1984 through June 30, 1986 James D. Shanley and Wife, as general insurance agent for Northwestern Mutual Life Insurance Company, contracted with eighteen insurance agents under a full-time special or soliciting agent's contract to solicit and secure applicants for Northwestern Mutual Life Insurance Company insurance policies and annuity contracts.
6. During the period from July 1, 1984 through June 30, 1986, each of the eighteen insurance sales agents was required to provide his or her own fidelity bond and was allowed to sell other forms of noncompeting insurance based upon the needs of prospective purchasers. The insurance agents were required to pay their own office expenses and office staff except for a brief two-year period in which the firm shared in the start-up costs for new agents. The agents also set their own hours and methods of soliciting clients. In some cases the individual insurance agents employed office staff for the purpose of soliciting clients and customers by telephone and other means.
7. During the period from July 1, 1984 through June 30, 1986 the contract between James D. Shanley and his wife, as general agent for Northwestern Mutual Life Insurance Company and, the eighteen insurance sales agents was an independent contract, the essence of which was not the personal labor of the eighteen insurance sales agents.
CONCLUSIONS OF LAW
4. During the period July 1, 1984 through June 30, 1986, the eighteen insurance sales agents on contract with James D. Shanley and Wife, as general insurance agent for Northwestern Mutual Life Insurance Company, were not workers within the meaning of RCW 51.08.180.
5. The Notice and Order of Assessment of Industrial Insurance Taxes issued by the Department of Labor and Industries on January 12, 1987 which assessed $ 8,457.95 against James D. Shanley and Wife for taxes which accrued between July 1, 1984 through June 30, 1986, is incorrect and is hereby reversed and remanded to the Department with instructions to issue a new Notice and Order of Assessment of [9] Industrial Insurance Taxes assessing $ 446.29 against James D. Shanley and his wife, as general agents for Northwestern Mutual Life Insurance Company for incorrectly reporting hours of salaried clerical workers pursuant to WAC 296-17-350(5).
It is so ORDERED.
Dated this 8th day of September, 1988.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMONChairperson
/s/
FRANK E. FENNERTY, JR.Member
/s/
PHILLIP T. BORKMember