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Deseret Book Co. v. Department of Workforce Services

Court of Appeals of Utah

March 29, 2018

Deseret Book Company, Petitioner,
v.
Department of Workforce Services, Workforce Appeals Board; and Katherine Thompson, Respondents.

         Original Proceeding in this Court

          Mary Anne Q. Wood and Jared M. Asbury, Attorneys for Petitioner.

          Nathan R. White, Attorney for Respondent Department of Workforce Services, Workforce Appeals Board.

          Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen and David N. Mortensen concurred.

          HARRIS, Judge.

         ¶1 Deseret Book Company (Deseret Book) hired an actress to perform in a holiday-themed theatrical production. The question presented in this case is whether that actress was Deseret Book's employee, or was instead an independent contractor. A hearing officer from the Utah Department of Workforce Services (DWS), an administrative law judge (ALJ), and the DWS Board of Appeals (the Board) all determined that the actress was Deseret Book's employee, and that Deseret Book was therefore responsible for making unemployment insurance contributions related to its payment of the actress. Deseret Book seeks judicial review of the Board's determination. We decline to disturb the Board's determination.

          BACKGROUND

         ¶2 For the past couple of decades, Deseret Book has been involved in the production of an annual Christmas program called "The Forgotten Carols." The production involves live performances by actors and singers, and tours for several weeks during the holiday season. For the 2014 version of the program, Deseret Book hired Katherine Thompson (Thompson) to play "Connie Lou, " one of the production's two main characters. Thompson is an experienced stage actress, singer, and songwriter who has appeared in many different theatrical productions. She advertises through her own website, uses social media to keep others apprised of her performances, and has an agent to represent her in contract negotiations. Thompson had been a cast member in The Forgotten Carols on at least one other occasion.

         ¶3 Prior to hiring Thompson, Deseret Book and Thompson's agent negotiated a written "Work for Hire Agreement" that was eventually executed by both Deseret Book and Thompson. Under the terms of this contract, it was agreed that Thompson "is an independent contractor with respect to" Deseret Book. However, the contract also stipulated that Thompson "agrees to the role of [Connie Lou] under the direction of [Deseret Book's] authorized representative." (Emphasis added.) Specifically, Thompson "agree[d] to participate in and be on time for call times, performances, rehearsals, signings (pending artist's availability), media appearances, and sound checks according to [the] tour itinerary, " and "agree[d] to abide by the schedule" set by Deseret Book. Thompson reserved the right to approve her costume. Deseret Book "reserve[d] the right to postpone, reschedule, or cancel any planned show for any reason in its sole discretion."

         ¶4 During the 2014 holiday season, Thompson played the role of Connie Lou, as scheduled, during The Forgotten Carols' seasonal tour. The performances did not take place on Deseret Book's property but, rather, in public theaters and auditoriums. Deseret Book provided a script-containing both music and the spoken word-that Thompson was expected to follow, and Deseret Book's representative scheduled rehearsals and oversaw the performances. While Deseret Book did not formally pay a director, one of the actors helped set "staging positions" and determine "who should come in when" during performances. Deseret Book's "tour producer" had the right to have "the final say" should a dispute ever come up regarding the details of the performance. After the conclusion of the 2014 holiday tour, Thompson's work for Deseret Book ended.

         ¶5 In October 2015, a DWS hearing officer determined that Thompson was an "employee" of Deseret Book, and that payments made by Deseret Book to Thompson were subject to unemployment insurance contributions. Deseret Book appealed the hearing officer's decision to an ALJ, who agreed with the hearing officer's conclusion. The ALJ determined that, although Thompson was independently established in the entertainment industry, Thompson was nevertheless under Deseret Book's control and direction during the Forgotten Carols tour, and therefore was an employee of Deseret Book.

         ¶6 Deseret Book appealed the ALJ's determination to the Board. The Board agreed with the ALJ that Thompson had been under Deseret Book's control and direction during the tour. The Board also concluded, however, that Thompson was not independently established in her own business. Accordingly, the Board determined that Thompson had been an employee of Deseret Book during her work on the Forgotten Carols tour.

         ¶7 Deseret Book now seeks ...


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