Edward F. Klinger, Gunhus, Grinnel, Klinger, Swenson & Guy, Ltd., 215 30th Street North, P.O. Box 1077, Moorhead, MN 56561-1077 (for respondent Olson)

Charles A. Krekelberg, Jeffrey D. Skonseng, Krekelberg Law Firm, 10 North Broadway, P.O. Box 353, Pelican Rapids, MN 56572 (for relator)

Kent E. Todd, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)

Considered and decided by Huspeni, Presiding Judge, Schumacher, Judge, and Mulally, Judge.^**

Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

This certiorari appeal is from a decision of the Department of Economic Security. Relator E. A. Paulson Trucking contends the commissioner's representative's decision that an employment relationship existed between Paulson and respondent Michael W. Olson was arbitrary and capricious. We affirm.

Olson filled out a W-9 IRS form when he began working. He was paid approximately every two weeks. He received 25% of Paulson's earnings for each truck load Olson hauled. Paulson also paid Olson's liability insurance, truck repair costs, fuel, and other expenses. Olson did not lease Paulson's truck. He picked up the truck at Paulson's residence. When the truck needed servicing, Paulson told Olson where to go for the servicing.

One of the companies for which Paulson hauled gravel was Kost Brothers, an aggregate and ready-mix business that paid Paulson 9.5 cents per ton per mile. According to the contract between Paulson and Kost Brothers, Paulson provided the drivers, but delegated to Kost Brothers the day-to-day responsibility of setting hauling routes.

After Olson quit, he applied for reemployment insurance benefits. The Department of Economic Security determined that Olson was entitled to benefits because an employer-employee relationship existed between them. Paulson appealed and a reemployment insurance judge affirmed the grant of benefits. Paulson appealed again and the commissioner's representative affirmed.

Paulson contends the commissioner's representative erred in determining an employer-employee relationship existed between Paulson and Olson was arbitrary and capricious. "The determination of an employment relationship is a mixed question of fact and law." Blue & White Taxi v. Carlson, 496 N.W.2d 826, 828 (Minn. App. 1993). Once the controlling facts are determined, the question whether an employment relationship exists is one of law. Lakeland Tool & Eng'g v. Engle, 450 N.W.2d 349, 352 (Minn. App. 1990). Minnesota courts distinguish independent contractors from employees in a master-servant relationship. Minn. Stat. § 268.04, subd. 12(1)(d) (1994); Speaks, Inc. v. Jensen, 309 Minn. 48, 50, 243 N.W.2d 142, 144 (1976).

Paulson argues that Olson was an independent contractor, not an employee. Factors in determining whether the individual is an employee or an independent contractor include:

(1) The right to control the means and manner of performance;

(2) The mode of payment;

(3) The furnishing of material or tools;

(4) The control of the premises where the work is to be done; and

(5) The right of the employer to discharge.

Minn. R. 3315.0555, subpt. 1 (1995). The most important factors are the right to control the means and manner of performance and the right to discharge the worker without incurring liability. Id.

Paulson controlled the means and manner of Olson's performance. "The right to control rather than the exercise of the right is decisive." Mount v. City of Redwood Falls, 260 Minn. 16, 19, 108 N.W.2d 443, 446 (1961). Paulson controlled Olson's hauling schedule. Paulson trained Olson and then allowed Olson to train some of Paulson's newer drivers. Paulson expected Olson to work every day and to report when he was unable to work.

Paulson paid Olson 25% of his earnings on each load hauled. The load sheets that Olson submitted from every haul were the basis for Paulson's payment from the customer and, ultimately, Olson's wage. Paulson furnished Olson with a vehicle and paid all operating costs, such as fuel, maintenance, and also a CB radio. Olson did not lease Paulson's truck; Olson neither paid Paulson to use the truck nor agreed to give up a greater percentage of the Kost Brothers' payment to lease the truck. Finally, no written contract existed between Olson and Paulson specifying their working relationship. Paulson had the right to terminate Olson at will. Cf. Minn. R. 3315.0525 (1995) (excluding from definition of "employee" a trucker who owns or leases vehicles, pays operating costs, and enters contract stating that driver is independent contractor, not employee).

Based on this record, the determination of the commissioner's representative that an employer-employee relationship existed between Paulson and Olson was proper.

Paulson also argues it was prejudiced because it was denied the right to have counsel present at the hearing before the reemployment insurance judge. We disagree. Paulson received two notices of hearing from the Department of Economic Security that informed the company of the right to counsel at the hearing. Everett Paulson admitted before the hearing that he did not "look at that." Furthermore, even though the reemployment insurance judge offered to reschedule the hearing to give Paulson time to hire an attorney, Paulson refused to reschedule and agreed to proceed without an attorney. On this record, Paulson was not denied the right to counsel at the hearing. See Schultz v. Machovec Food Mkt., 358 N.W.2d 155, 156 (Minn. App. 1984) (reversal not warranted solely because party lacked representation of counsel).

Affirmed.