Dennis B. Johnson, Jeffrey D. Bores, Chestnut & Brooks, P.A., 3700 Piper Jaffray Tower, 222 South Ninth Street, Minneapolis, MN 55402 (for relator)

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

Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.[*]

Relator Modern Age Representative, Inc. challenges the decision of respondent Commissioner of Economic Security that an employment relationship existed between it and respondent James Watts for the purpose of reemployment insurance benefits. Because we conclude that Watts was an independent contractor rather than an employee, we reverse.

Watts began performing services as a salesperson for Modern Age in October 1991. The parties did not have a written contract of employment. Watts represented three major companies selling household goods, furniture, and lawn and patio items to department stores and retail outlets. Although Modern Age was not heavily involved in directing Watts's sales, they did have the right to require a minimum volume of production from Watts. His sales tactics, however, were his own responsibility. Further, Watts arranged his own schedule and travel time. He was required to attend sales meetings and certain trade shows each year. Watts was reimbursed for some of the expenses incurred in attending trade shows. Although Modern Age did not require Watts to file any formal sales reports, he was required to submit copies of all orders he generated each month.

While working with Modern Age, Watts averaged approximately 40 hours per week and considered the work to be full-time. Watts also occasionally sold products for other companies to "pad" his income. Modern Age did not prohibit this additional representation so long as it did not "impact negatively on his volume" of sales for Modern Age. Watts testified that 90-95 percent of his income came from Modern Age sales.

Watts was paid twice monthly, around the first and fifteenth of each month. Watts was paid approximately the same amount in each check, with some upward deviation to account for extra sales. Watts testified that, although it was a "judgment call," these payments were "more like a salary than a commission." Modern Age representatives testified that Watts's compensation was a draw against commission. The amount of these checks increased every year as Watts increased his sales for Modern Age. A Modern Age representative testified that the increase was like a bonus coming from the extra money he had earned the previous year. Watts reported his income on a 1099 form. Modern Age did not provide Watts with any benefits, such as health or life insurance.

Watts's sales began to decrease in 1997. At that time, Modern Age could no longer cover the draw and was forced to pay Watts a straight commission. Modern Age met with Watts on July 30, 1997 and informed him of the change in his payment. They also told him that he needed to increase his business or he would be discharged. Watts was terminated on October 14, 1997.

The facts in this matter are not in dispute. Rather, Modern Age disputes the legal conclusion of the commissioner's representative that based on the facts, an employment relationship existed between it and Watts. The label given by the parties to their relationship is not determinative of whether an employer-employee relationship exists. Speaks, Inc., v. Jensen, 309 Minn. 48, 51, 243 N.W.2d 142, 145 (1976). Instead, in establishing whether a party is an employee or independent contractor, importance is placed on the legal consequences that attach to the parties' arrangements and conduct. Hunter v. Crawford Door Sales, 501 N.W.2d 623, 624 (Minn. 1993).

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); see also Minn. R. 3315.0555, subpt. 1 (1997) (supplying the codification of the five traditional factors and indicating that the right to control and right to discharge without liability are the two most important considerations).

Here, Modern Age did not directly supervise Watts's work or control the manner in which he performed his sales presentation to clients. Rather, Watts exercised discretion and judgment over how to accomplish each sale in his assigned territory. Although, in making its determination, the commissioner's representative indicated that it was relying heavily on its finding that Modern Age had the right to control the means and manner of Watts's performance, the evidence in the record does not support this finding of the commissioner's representative. Even when Watts's sales were decreasing in 1997, the most Modern Age did was to inform Watts that he needed to increase his sales but it did not tell him the manner in which to accomplish the increase in his sales. The record, on a whole, shows that at all relevant times, Watts was quite independent in accomplishing his sales objectives for Modern Age.

Additionally, the fact that Watts was free to perform sales services for other companies also supports the conclusion that he was an independent contractor and indicates that Modern Age did not have exclusive control over how Watts performed his services. See Wise v. Denesen Insulation Co., 387 N.W.2d 477, 481 (Minn. App. 1986) (stating that the fact that salespeople were free to work for other employers was evidence of independent contractor relationship).

Finally, although Watts had to submit copies of all the orders he had generated each month, Modern Age did not require Watts to file any written reports. See generally Minn. R. 3315.0555, subpt. 3 (C) (stating the right to control is indicated when the worker must provide regular reports to the employing entity to show the manner in which services are preformed). "Completion of receipts, invoices and other forms customarily used in the particular type of business activity * * * does not constitute written reports." Id. This fact also weighs in favor of a determination that Watts was an independent contractor.

Further, the fact that income and social security taxes were not withheld from Watts's checks is a factor to be considered, although it is not necessarily determinative of independent contractor status. See Duetsch v. E. L. Murphy Trucking Co., 307 Minn. 271, 275, 239 N.W.2d 462, 465 (1976) (stating that income withholding and social security taxes are relevant, but not determinative on the issue of independent contractor status). All things considered, the "mode of payment" factor weighs heavily in favor of independent contractor status as opposed to employee status.

When work is done off the premises it does indicate some freedom from control; however, in some occupations, the services are necessarily performed away from the premises of the employing unit and are still considered to be in employment.

This is also a factor demonstrating that an employer-employee relationship did not exist between Watts and Modern Age.

Reversed.

[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.