As we have noted many times in our articles and presentations, the term “employee” has different meanings in different contexts. This case highlights how the term is defined in the unemployment compensation statute. The statute, RSA 282-A, exists to prevent the spread of unemployment and to lighten the burden on workers who are involuntarily unemployed through no fault of their own.
This worker appeared as a musical entertainer at this resort location from approximately 1980 until his last booking on June 2, 2012, after which the relationship was terminated, and he filed for unemployment benefits. He performed nearly 300 times in the last two years that he worked there. He was paid weekly for his performances. He provided his own instruments and selected his own songs to perform. The resort provided the stage and advertised his appearances. The parties contested his entitlement to benefits to the highest level of the Department of Employment Security. The Appellate Board awarded benefits to the worker, and the employer appealed to the New Hampshire Supreme Court.
The statute in question is RSA 282-A;9, III(b) which sets forth the two tests to be used to determine if a service provided to a business will not be considered “employment”. When a service is “outside the usual course of the business for which such service is performed”, or when a service is “performed outside of all the places of business of the enterprise for which such service is performed”, the service will not be considered “employment”.
Finding this language to be an “elusive concept”, the court adopted this approach, “if an enterprise undertakes an activity not as an isolated instance but as a regular or continuous practice, the activity will constitute part of the enterprise’s usual course of business irrespective of its substantiality in relation to the other activities engaged in by the enterprise.” In this case, because live musical entertainment was regularly and continuously made part of the resort’s usual course of business, the services of this entertainer constituted “employment”. The court found that determinations under this statute turn upon the “unique facts” of each case, and would thus not impose significant burdens on other resorts or other providers of musical entertainment who were free to alter the terms and conditions for the services provided.
The case highlights how difficult it is to determine whether or not a person who performs work or provides a service will be treated as an “employee” for one or more of the many statutes that protect employees and regulate employers. The terms and conditions contained in a written agreement are not the sole evidence of the status of a provider, instead the overall facts of the relationship will control.