In order to establish the exemption set forth in section 11-10-210(e), an employer must prove each of the three requirements in subsections (1)-(3). Steinert v. Director, supra; Network Design Eng'g Inc. v. Director, supra; Morris v. Everett, Director, 7 Ark. App. 243, 647 S.W.2d 476 (1983). If there is sufficient evidence to support the Board's finding that any one of the three requirements is not met, the case must be affirmed. Steinert v. Director, supra; Network Design Eng'g Inc. v. Director, supra.
The people who sell Better Business Bureau memberships may very well meet the criteria of (a) and (b) but are unlikely to be able to meet the criterion of (c), except in extremely limited instances. Further, the Court stated in Morris v. Everett, 7 Ark. App. 243, 647 S.W.2d 476 (1983) in interpreting Ark. Stat. Ann. 81-1103(i)(5)(a)(b)(c) that, "By its passage of act 35, the 1971 General Assembly obviously intended to make it more difficult to claim an exemption under our Employment Security Act". 7 Ark. App. at 245. Therefore, given the statutory mandates and difficult standards which must be met for an exemption from unemployment insurance liability for independent contractors, it appears that individuals who sell Better Business Bureau memberships are NOT independent contractors for purposes of the Arkansas Employment Security Act. It then follows that there will be no unemployment insurance exemption for these individuals.
(3) The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed. There is a presumption of employee status, and to overcome that presumption, the party seeking the exemption must establish that all three subsections are satisfied. Morris v. Everett, 7 Ark.App. 243, 647 S.W.2d 476 (1983). Thus, to establish that Polston and other workers were independent contractors, O'Dell was required to prove the existence of all three factors.
Three precedent conditions must exist for these subsections to apply and they are: (1) that services were performed; (2) by an individual; (3) for wages. If there is sufficient evidence to support the Board's finding that any one of the three requirements in subsections (1)-(3) is not met, the case must be affirmed.Barb's 3โD Demo Serv. v. Dir., Ark. Emp't Sec. Dep't, 69 Ark.App. 350, 354, 13 S.W.3d 206, 208 (2000) (citing Steinert v. Dir., 64 Ark.App. 122, 979 S.W.2d 908 (1998); Network Design Eng'g, Inc. v. Dir., 52 Ark.App. 193, 917 S.W.2d 168 (1996); Morris v. Everett, 7 Ark.App. 243, 647 S.W.2d 476 (1983)).Home Care Prof'ls of Ark., Inc. v. Williams, 95 Ark.App. 194, 197โ98, 235 S.W.3d 536, 540 (2006) (citing Palmer's Boutique v. Ark. Emp't Sec. Div., 265 Ark. 571, 580 S.W.2d 683 (1979); and McCain v. Crossett Lumber Co., 206 Ark. 51, 174 S.W.2d 114 (1943)).
(3) The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.In order to obtain the exemption contained in section 11โ10โ210(e), the employer must prove each of subsections (e)(1) through (3). Stepherson v. Dir., 49 Ark.App. 52, 895 S.W.2d 950 (1995) ; Am. Transp. Corp. v. Dir., 39 Ark.App. 104, 840 S.W.2d 198 (1992) ; Morris v. Everett, 7 Ark.App. 243, 245, 647 S.W.2d 476, 477 (1983) (noting the 1971 amendment to the statute that made the provisions conjunctive and commenting that, by the amendment, the General Assembly โobviously intended to make it more difficult to claim an exemption under our Employment Security Actโ). If there is substantial evidence to support the fact-finder's finding that any one of the three requirements is not met, the case must be affirmed. W. Land Servs., supra.
(3) The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed. There is a presumption of employee status, and to overcome that presumption, the party seeking the exemption must establish that all three subsections are satisfied. Morris v. Everett, 7 Ark. App. 243, 647 S.W.2d 476 (1983). Thus, to establish that Polston and other workers were independent contractors, O'Dell was required to prove the existence of all three factors.
Three precedent conditions must exist for these subsections to apply and they are: (1) that services were performed; (2) by an individual; (3) for wages. If there is sufficient evidence to support the Board's finding that any one of the three requirements in subsections (1)-(3) is not met, the case must be affirmed.Barb's 3-D Demo Serv. v. Dir., Ark. Emp't Sec. Dep't, 69 Ark. App. 350, 354, 13 S.W.3d 206, 208 (2000) (citing Steinert v. Dir., 64 Ark. App. 122, 979 S.W.2d 908 (1998); Network Design Eng'g, Inc. v. Dir., 52 Ark. App. 193, 917 S.W.2d 168 (1996); Morris v. Everett, 7 Ark. App. 243, 647 S.W.2d 476 (1983)). Home Care Prof'ls of Ark., Inc. v. Williams, 95 Ark. App. 194, 197-98, 235 S.W.3d 536, 540 (2006) (citing Palmer's Boutique v. Ark. Emp't Sec. Div., 265 Ark. 571, 580 S.W.2d 683 (1979); and McCain v. Crossett Lumber Co., 206 Ark. 51, 174 S.W.2d 114 (1943)).
Ark. Code Ann. ยง 11-10-210(e)(3) (emphasis added). See Morris v. Everett, Director, 7 Ark. App. 243, 647 S.W.2d 476 (1983). Appellant testified that a majority of the drivers worked 40 hours a week driving one of her trucks for Fikes. One of the drivers, Craig Weasenforth, testified that he never drove another truck for any other company during the time that he drove one of appellant's trucks.
We affirm. [1, 2] In order to obtain the exemption contained in the Act, it is necessary that the employer show to the satisfaction of the Director that the requirements of all three subsections have been met. Morris v. Everett, 7 Ark. App. 243, 647 S.W.2d 476 (1983). Therefore, if there is sufficient evidence to support a finding that any one of the three requirements were not met, the case must be affirmed.