Alan L. Mitchell, St. Louis County Attorney, and Vernon D. Swanum, Assistant St. Louis County Attorney, 100 North Fifth Avenue West, #501, Duluth, MN 55802 (for relator)

Clayton D. Halunen, Talarico & Halunen, 313 North Central Avenue, Duluth, MN 55807 (for respondent Linda Seguin)

Kent E. Todd, Lee Nelson, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent commissioner)

Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.

Relator County of St. Louis challenges the commissioner's representative's decision granting respondent Linda M. Seguin's claim for reemployment insurance benefits. The commissioner's representative concluded that an employer/employee relationship, within the meaning of Minnesota law, existed between the county and Seguin. Because, based on the record, an employer/employee relationship exists between the parties, we affirm.

Sharon Musolf, Nopeming's activity director, originally contacted Seguin and asked her if she was interested in doing the residents' hair. Musolf told Seguin that a manager's beautician license, which Seguin had, was required. Musolf gave Seguin a list of prices that she indicated would be acceptable to charge for certain hair services. Seguin agreed to the prices and agreed to provide the services. The parties did not have a written agreement.

Musolf asked Seguin what days she wanted to work and Seguin stated that she preferred to work on Wednesdays and Thursdays. The Nopeming staff found residents who wanted their hair done and made lists of their names for Seguin.

Seguin regularly worked at Nopeming on Wednesdays and Thursdays and she would do all the residents who were on the list. Soon Seguin had a list of regular residents who almost always came weekly for a wash and set. Eventually, Seguin knew who the regular customers were and she made her own list. Seguin also was given a list, or was told by Musolf, of residents who needed permanents. Musolf frequently told Seguin about other residents who needed services in their rooms and Seguin also did their hair.

Seguin filled out resident activity sheets in order to get paid. Nopeming provided the activity sheets and instructed Seguin on how to fill them out. Seguin listed each resident, the services provided, and the predetermined charge for the service. During the time Seguin provided services, the price list was changed twice to raise prices, after Musolf discussed it with Seguin. The resident signed the activity sheet, authorizing withdrawal from the resident's personal trust fund account to pay for the service listed. Seguin then signed the activity sheet and submitted it for payment. The nursing home kept a separate trust account for each resident to pay for his or her personal needs. The nursing home's account clerk did the bookkeeping and debited each resident's trust account for the amount of Seguin's services and then paid Seguin. Seguin was paid on a per-job basis. The money used to pay Seguin was not the County's funds and always came from the resident's personal trust account funds. Nopeming paid Seguin in cash for her services. The county never gave Seguin a 1099 or W-2 tax form because it did not feel that Seguin provided services for it, but rather for the individual residents. During the years 1993, 1994, and 1995, Seguin filed income tax returns with the Internal Revenue Service including "Schedule C - Profit or Loss from Business" indicating that she was self-employed.

Seguin did not pay the county to use the premises. Nopeming provided a beauty shop area, a hair washing sink, a beauty chair, towels, rollers, cotton, shampoo, hair spray, curling irons, scissors, hair dryers, brushes, combs, clips, and some hair wave products. Nopeming also reimbursed Seguin for expenses, such as buying replacement products and certain rollers and scissors that she preferred to use.

Seguin wore a badge with her name and area on it and it was the same kind of badge that other employees had to wear. Nopeming also required Seguin to comply with its dress code. Musolf expected Seguin to start at 8:30 a.m. on the days she worked and to continue working until the job was done. While working at Nopeming, Musolf sometimes called Seguin while she was on break for lunch and told Seguin that she should be busy doing a resident's hair. Seguin sometimes provided services to the residents that she wasn't paid for, such as nails and eyebrow trimming.

Seguin always found a replacement, at Musolf's request, when she had to be gone on a Wednesday or Thursday. Musolf later told Seguin whether the residents liked the person that Seguin got as a replacement. Musolf, on several occasions, told Seguin not to use certain people as replacements.

Nopeming required Seguin to have certain vaccinations and to attend certain health meetings and Seguin complied with those requirements. Nopeming did not allow Seguin to do any services on its premises for customers other than residents. Nopeming kept track of time spent with residents and it documented as one-on-one Seguin's time with the residents. Seguin sometimes had to toilet a resident because the nursing staff did not come to help.

In October 1996, Seguin stopped providing services at Nopeming for medical reasons. While Seguin was ready to return to work, Nopeming advised her in December 1996 that she would no longer be performing services there. Nopeming told Seguin that it was opening the position for bids and gave her the opportunity to bid on the position. The county later selected another person to provide beauty services. Seguin filed a claim for reemployment insurance benefits. The department of economic security issued a determination holding that an employer/employee relationship existed between the county and Seguin. The county appealed. The department reemployment insurance judge conducted a hearing on Seguin's employment status. The reemployment insurance judge affirmed the department's determination. The county appealed to the commissioner. The commissioner's representative affirmed the reemployment insurance judge's decision, concluding that an employer/employee relationship, within the meaning of Minnesota law, existed between county and Seguin. This certiorari appeal followed.

Minnesota statute defines employment as any service performed by

any individual who is a servant under the law of master and servant or who performs services for any employing unit, unless such services are performed by an independent contractor.

Minn. Stat. § 268.04, subd. 12 (1) (d) (1996).

The traditional factors used in determining whether an individual is an employee or an independent contractor are: 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 done; and 5) the right of the employer to discharge. Guhlke v. Roberts Truck Lines, 268 Minn. 141, 143, 128 N.W.2d 324, 326 (1964).

Right to Control

In determining whether the status is one of employee or independent contractor, the most important factor considered in light of the nature of the work involved is the right of the employer to control the means and manner of performance.

Id. It is not the actual control, but the right of control that is determinative. Moore Assocs., 545 N.W.2d at 393. The record clearly shows that Nopeming had the right to exercise control over Seguin. Musolf expected Seguin to report for work each day at 8:30 a.m. and to finish all the residents who were scheduled to receive Seguin's services. Musolf also required Seguin to find a replacement to provide beautician services when Seguin intended to be absent and Musolf, at least twice, told Seguin not to use certain persons as replacements.

B. Mode of Payment

The fees charged by Seguin were originally set by Musolf and, when they were later raised, Seguin had to discuss it with Musolf. While this factor alone is not determinative of the relationship, Seguin could not have suffered a loss in performing services for Nopeming. The fact that income and social security taxes were not withheld from Seguin's paychecks is a factor to be considered, but it is not determinative. See Duetsch v. E. L. Murphy Trucking Co., 307 Minn. 271, 275, 239 N.W.2d 462, 465 (1976).

C. Furnishing Materials or Tools

Nopeming provided essentially all the tools and materials for Seguin to perform services. Nopeming also reimbursed Seguin for expenses that she incurred in performing services. These are substantial factors indicating an employer/employee relationship.

D. Premises Where Work Is Done

Seguin performed services exclusively on the county's premises. Nopeming furnished the space for Seguin to perform services and Seguin did not pay rent to Nopeming. Nopeming did not allow Seguin to perform services on its premises for customers other than residents.

Minn. Rule 3315.0555, subp. 3 (D) (1995) provides in part:

Doing the work on the employing unit's premises is not control in itself; however, it does imply that the employer has control, especially when the work could be done elsewhere.

This is a significant factor showing that an employer/employee relationship existed between the county and Seguin.

E. Right Of Employer To Discharge

Both the county and Seguin agree that the county retained the right to discharge Seguin at any time, with little or no notice, without cause and without incurring liability for damages. The county agrees that Seguin could have ended the relationship at any time without incurring liability for failure to complete the job. Seguin did not have a substantial investment in the facilities used to perform the services.

This case is distinguishable from Boily v. Commissioner of Econ. Sec., 532 N.W.2d 607 (Minn. App. 1995), affirmed as modified, 544 N.W.2d 295 (Minn. 1996), in the most important factor (the right to control the means and manner of performance). In Boily, which involved a dental clinic, the evidence revealed:

The individual dentists control the means and manner of performance of services. Each dentist exercises his or her own professional judgment in treating patients. Each may independently determine to refer a patient to a dentist who is not a member of the clinic - a strong and clear indicator of independent contractor status. Each dentist decides the number of hours he or she will work and may perform dental services at a separate location at least 10 miles distant from Boily clinic.

Id. at 609.

Here, the evidence is directly contrary to that of Boily. Seguin did not control the means and manner of performance of services. She did not exercise her own professional judgment in treating her clients. She was not permitted to perform services for clients other than the residents while at Nopeming. Lastly, the number of hours she worked depended upon the number of appointments that were scheduled for her on a given day.

Based on the five traditional factors, we conclude that Seguin was an employee rather than an independent contractor. Additionally, the reemployment insurance benefits law is remedial in nature and should be liberally construed to achieve those ends. Rochester Dairy Co. v. Christgau, 217 Minn. 460, 462, 14 N.W.2d 780, 781 (1944).

Based on the record, the county was not denied procedural due process of law.

The commissioner's representative, therefore, did not rely on extra-record evidence.

Affirmed.