The real estate act, supra, gives the broker control of the salesmen, and the relationship of broker and salesman was terminable by either party at will, which is hardly the role of the independent contractor. This court in First Nat. Ben. Soc. v. Sisk, 65 Ariz. 1, 173 P.2d 101 (1946), said: "One of the means of ascertaining whether a right to control exists is the determination of whether, if instructions were given they would have to be obeyed (citing cases)."
Ferguson v. Ariz. Dep't of Econ. Sec. , 122 Ariz. 290, 291, 594 P.2d 544, 545 (App. 1979) ; see also A.R.S. § 23-601 (stating the underlying policy of the Act is that "the public good and the general welfare of the citizens of this state require the enactment of this measure, under the police powers of the state, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own"). Because the Act is remedial, we must construe it "to include as many types of employment relationships as possible," Ariz. Dep't of Econ. Sec. v. Little , 24 Ariz. App. 480, 483, 539 P.2d 954 (1975), and an employing unit seeking exemption from payment of unemployment contributions bears the burden of showing that its workers were free from control other than that expressly permitted, First Nat'l Benefit Soc'y v. Sisk , 65 Ariz. 1, 6–7, 173 P.2d 101 (1946). ¶13 Under the Act, certain types of employment are "not considered in determining whether an employing unit constitutes an ‘employer’ " for the purpose of unemployment insurance coverage, including, in relevant part:
See, e.g., Daw's Critical Care Registry, Inc. v. Department of Labor, Employment Sec. Div., 622 A.2d 622, 631 (Conn.Super.Ct. 1992); Larson v. LIRC, 516 N.W.2d 456, 461 (Wis.Ct.App. 1994); Trauma Nurses, Inc. v. Board of Review, New Jersey Dep't of Labor, 576 A.2d 285 (N.J.Super.Ct. App. Div. 1990); Mississippi Employment Sec. Dep't v. PDN, Inc., 586 So.2d 838 (Miss. 1991); First Nat. Benefit Soc. v. Sisk, 173 P.2d 101, 105 (Ariz. 1946); cf. Larry's Post Co., Inc., v. Unemployment Ins. Div. Contributions Bureau, 777 P.2d 325 (Mont. 1989).
One of the means of ascertaining if a right to control exists is to determine whether the employer has the power to supervise the employee's "method of reaching a desired result," Hughes v. Industrial Commission, 113 Ariz. 517, 518, 558 P.2d 11, 12 (1976), or whether, "if instructions were given, they would have to be obeyed." First Nat. Ben. Soc. v. Sisk, 65 Ariz. 1, 8, 173 P.2d 101, 105 (1946). It is not whether the employer actually exercised such power that must be considered, but whether the power exists. Hughes, supra.
This court in the case of Sisk v. Arizona Ice Cold Storage Co., 60 Ariz. 496, 141 P.2d 395, definitely rejected the common law concept of "employment" and aligned Arizona with the jurisdictions enlarging the scope of the term. See also First Nat. Ben. Soc. v. Sisk, 65 Ariz. 1, 173 P.2d 101. Whether real estate salesmen are employees of the real estate broker under whom they are licensed to operate is a question of first impression in this jurisdiction.
"`(c) Such individual is customarily engaged in an independently established trade, occupation, profession, or business.'" Many of the other jurisdictions cited by respondent, having the same statutory provisions, followed the lead of Colorado. Life Casualty Ins. Co. of Tenn. v. Unemployment Compensation Comm., 178 Va. 46, 16 S.E.2d 357; Singer Sewing Mach. Co. v. Unemployment Compensation Comm., 167 Or. 142, 116 P.2d 744, 103 P.2d 708, 138 A.L.R. 1398, note 1413; Creameries of America v. Industrial Comm., 98 Utah 571, 102 P.2d 300; First Nat. Ben. Soc. v. Sisk, 65 Ariz. 1, 173 P.2d 101; Unemployment Compensation Comm., v. Jefferson Standard Life Ins. Co., 215 N.C. 479, 2 S.E.2d 584; McKinley v. R.L. Payne Son, 200 Ark. 1114, 143 S.W.2d 38; Park Implement Co. v. Review Board, 109 Ind. App. 538, 36 N.E.2d 985. North Dakota (with a different statute) expressly refused to follow Colorado, the court saying, "we are not persuaded by their reasoning." Mutual Life Ins. Co. of New York v. State, 71 N.D. 78, 298 N.W. 773, 778, 138 A.L.R. 1115. The Utah court reached a different conclusion in Stover Bedding Co. v. Industrial Comm., Utah, 107 P.2d 1027, 134 A.L.R. 1006. This illustrates the proposition that each case must be decided upon its facts and the applicable law.
In coming to any answer it has been remembered that the statute is remedial; that it enunciates and is addressed to a public policy; that it is ameliatory of the evils resulting from lack of employment; that it is to be liberally construed to effectuate its purpose; that devices of every kind to defeat it are to be frowned upon and stricken down; and that by the several Arizona cases construing and giving it effect this court has adopted an interpretation of it strictly in accord with its intent and objects as announced by the legislature in the preamble to the Act. Sisk v. Arizona Ice Cold Storage Co., 60 Ariz. 496, 141 P.2d 395; Gaskin v. Wayland, 61 Ariz. 291, 148 P.2d 590; First Nat. Benefit Society v. Sisk, Employment Security Comm. of Arizona, 65 Ariz. 1, 173 P.2d 101, cf., also Singer Sewing Machine Co. v. Industrial Comm. of Utah, 104 Utah 175, 134 P.2d 479, and cases cited. It may further be said that as the field opened by this legislation is new, the statutory definition of terms and an interpretation consistent with the objects and purposes for which the Act was adopted should be applied rather than those definitions and interpretations applicable by long usage and association to the common-law relationships of master and servant, employer and employee, and principal and agent.