The "same trade" requirement is a codification of the "normal work" test. See, e.g.,Hays Home Delivery, Inc. v. Employers Ins. Co. of Nev., 31 P.3d 367, 369-70 (Nev.2001) (en banc) (per curiam); Oliver v. Barrick Goldstrike Mines, 111 Nev. 1338, 905 P.2d 168, 174-75 (1995) (per curiam). In order to determine whether Renaissance was Freeman's statutory employer, we must ask whether the " 'indispensable activity [of Freeman] is, in that business, normally carried on through employees rather than independent contractors.' "
The test is fully conjunctive, so if either prong isn't met, the independent contractor is a statutory employee for purposes of Chapters 616A through 616D. SeeHays Home Delivery, Inc. v. Employers Ins. Co. of Nevada, 31 P.3d 367, 370 (Nev. 2001) (emphasizing conjunctive nature of test). The Nevada drivers' work is a regular and integral part of FedEx's business and is essential to FedEx's business.
As the court explained, to prove that an agent is not his employee under the "normal work" test, a principal must demonstrate both that the agent is an "independent enterprise" and that the principal and agent are not involved in the "same trade, business, profession, or occupation." Hays Home Delivery, Inc. v. Employers Ins. Co. of Nevada, 31 P.3d 367, 370 (Nev. 2001); NEV. REV. STAT. Ch. 616B.603(1). The court concluded that "[q]uetions of fact and law common to the class preponderate with respect to claims under the Nevada Industrial Insurance Act; class certification is appropriate as to those claims."
For example, workers who would otherwise be considered "independent contractors may be deemed 'employees'" for the limited purposes of the Nevada Industrial Insurance Act. Hays Home Delivery, Inc. v. Emp'rs Ins. Co. of Nev., 117 Nev. 678, 682, 31 P.3d 367, 369 (2001); see NRS 616A.210(1). Naturally, their status as employees for those limited purposes does not spill over and make them employees for other purposes.
A subcontractor or independent contractor is not a statutory employee if it “is not in the same trade, business, profession or occupation as the [employer of the injured worker].” SeeNRS 616B.603(1)(b); Hays Home Delivery, Inc. v. Emp'rs Ins. Co. of Nev., 117 Nev. 678, 682, 31 P.3d 367, 369–70 (2001) (noting that NRS 616B.603 codifies the Meers test, discussed below, which is used to “determine[ ] whether independent contractors are ‘employees' under the NIIA”). The “normal work” test, first articulated in Meers, guides courts as to whether a subcontractor or independent contractor is considered to be in the same trade, business, profession, or occupation as the employer of an injured worker.
This case is also similar to Hays Home Delivery, Inc. , in which Hays, a logistics management company, "enter[ed] into agreements with owner-operators,’ instead of hiring drivers of its own, to deliver the merchandise." SeeHays Horne Delivery, Inc. v. Emp'rs Ins. Co. of Nev. , 117 Nev. 678, 680, 684, 31 P.3d 367, 368, 371 (2001) (concluding that Hays and an owner-operator driver were "in the same trade of delivering merchandise from retailers to end-customers"). Thus, we conclude that the appeals officer's decision that the cosmetology instructors were in the same trade, business, profession, or occupation was not affected by any error of law.
To prove that an agent is not his employee, a principal must demonstrate both that the agent is an "independent enterprise" and that the principal and agent are not involved in the "same trade, business, profession, or occupation." Hays v. Employers Ins. Co. of Nevada, 31 P.3d 367, 370 (Nev. 2001); NEV. REV. STAT. § 616B.603(1). Nevada's statutory test, then, pays no attention to control, whether contractual or actual; it looks at the nature of the work of the principal and the agent.
When the statute is subject to more than one reasonable interpretation, however, it is ambiguous, and factors peripheral to the statute's language properly may be considered to determine the Legislature's intent.Hays Home Delivery, Inc. v. EICON, 117 Nev. 678, 682, 31 P.3d 367, 369 (2001); County of Clark v. Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757 (1998).McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986).