Briefs filed in Cary Nelson, Respondent, vs. Robert Levy, Relator, Department of Employment and Economic Development, Respondent.

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Minnesota Appellate Court Issues in Briefs

Shown here are the statements of the issues presented for review by the appellate courts in the briefs filed for this case. The entire brief set can be found at the State Law Library and other libraries around the state. See Minnesota Appellate Court Briefs Collection for more information.

CASE NAME:  Cary Nelson, Respondent, vs. Robert Levy, Relator, Department of Employment and Economic Development, Respondent.
        Read the opinion in this case at A10-996
        CITATION: 796 N.W.2d 336 (Minn. Ct. App. 2011)

Legal Issues in RELATOR'S BRIEF AND ADDENDUM:
  • 1. Employers must pay unemployment insurance taxes only on the taxable wages paid to employees. Payments to independent contractors are not wages subject to assessment. An Unemployment Law Judge found that Nelson was Majestic's employee and therefore required Majestic to contribute to the unemployment trust fund. Did the ULJ erroneously conclude that Nelson was Majestic's employee? Yes, Nelson was an independent contractor. He maintained a business office, held federal employment identification numbers, controlled his means and methods for performing subcontract work, incurred all of the expenses for the contracts that he bid and performed, was responsible for the satisfactory completion of each job, was paid on a per job basis, and had recurring business liabilities. The ULJ erred by concluding that Nelson was Majestic's employee. Apposite Authorities: Minn. Stat. § 268.035, subd. 9 (2008); Minn. Stat. § 268.105 (l)(c); Carey v. Coty Const., 392 N.W.2d 746, 748 (Minn. Ct. App. 1986).
  • 2. Nelson began performing services for Majestic in June of 2008. The ULJ issued an order requiring Majestic to contribute to the unemployment trust fund from December of 2007-present day. Is there any basis to sustain the ULJ's Order? No, there is no evidence that Nelson, or any other person performed any services for Majestic from December 2007-June of 2008.
  • 3. The statute governing independent contractor classification-Minn. Stat. § 268.035 subd. 9-was repealed on January 1, 2009 and Minn. Stat. § 181.723 was enacted to take its place. Did the ULJ err by applying a repealed statute and by finding that the statute that was enacted to take its place is not applicable? Yes, the ULJ erred by applying a repealed statute and by concluding that Minn. Stat. § 181.723 (2009) has no application to this case. Apposite Authorities: Minn. Stat. § 268.035, subd. 9(a) (2009); Minn. Stat. § 181.723 (2009).
  • Legal Issues in Respondent Department's Brief and Appendix:
  • Minnesota law lays out the test for determining whether, for purposes of unemployment insurance, an individual performed building construction or improvement services in employment or as an independent contractor. To be considered an independent contractor rather than an employee, he must meet each of nine criteria, including that he, and not the entity for whom the work is being done, pays the main expenses of the job. Cary Nelson laid tile for Majestic Tile & Stone, LLC ("Majestic") for several years, and Majestic paid for the cost of the tile and setting materials. Was Nelson an employee of Majestic? Unemployment Law Judge ("ULJ") Richard Croft found that Nelson performed services for Majestic in employment under the Minnesota Unemployment Insurance Law.
  • Also Filed: RELATOR'S REPLY BRIEF AND SUPPLEMENTAL APPENDIX


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