Connecticut General Statutes § 31-222(a)(1)(B)(ii) is "commonly referred to as the ‘ABC test,’ with parts A, B and C corresponding to clauses I, II and III respectively." Sw. Appraisal Grp. LLC v. Adm'r Unemployment Compensation Act , 324 Conn. 822, 832, 155 A.3d 738 (2017) (internal citations omitted). To Plaintiffs, Connecticut's ABC test for independent contractor misclassification "creates a presumption that ‘any service provided by an individual is considered employment, unless and until the recipient of the services’ can prove all three prongs of the test."

Because the administrator has neither expressly claimed nor demonstrated that the board's interpretation of § 31–222 (a) (1) (B) (ii) (III), as applied to the facts of these cases, is time tested or that its interpretation previously has been subject to judicial scrutiny, our review is plenary. See, e.g., Southwest Appraisal Group, LLC v. Administrator, Unemployment Compensation Act , 324 Conn. 822, 838 n.10, 155 A.3d 738 (2017) (rejecting claim of administrator that board's interpretation of part C of ABC test was time tested in light of "fact sensitivity" of board's decisions). The administrator is the sole defendant participating in these appeals.

(Internal quotation marks omitted.) Southwest Appraisal Group, LLC v. Administrator, Unemployment Compensation Act , 324 Conn. 822, 832, 155 A.3d 738 (2017).

Generally, remedial statutes like the Independent Contractor Statutes are entitled to liberal construction. Monell v. Boston Pads, LLC, 471 Mass. 566, 575, 31 N.E.3d 60 (2015) (independent contractor statute is a remedial statute); see Terra Nova Ins. Co. v. Fray-Witzer, 449 Mass. 406, 420, 869 N.E.2d 565 (2007) (statutes are remedial where they address " misdeeds suffered by individuals," rather than punish public wrongs); accord, Sw. Appraisal Grp., LLC v. Adm'r, Unemployment Comp. Act, 324 Conn. 822, 833, 155 A.3d 738 (2017). The Independent Contractor Statutes presume that individuals performing services are employees.

[¶26.] Other courts applying nearly identical statutory language to SDCL 61-1-11 also consider a list of non-exhaustive factors to determine whether an individual is customarily engaged in an independently established trade, and recognize that such a determination "necessitates a fact-intensive inquiry." A Special Touch v. Dep't of Lab. & Indus., 228 A.3d 489, 505 (Pa. 2020); see also Sw. Appraisal Grp., LLC v. Adm'r, Unemployment Comp. Act, 155 A.3d 738, 749 (Conn. 2017); Indus. Claim Appeals Off. v. Softrock Geological Servs., Inc., 325 P.3d 560, 562 (Colo. 2014); Bloomington Area Arts Council v. Dep't of Workforce Dev., 821 N.E.2d 843, 853 (Ind.Ct.App. 2005).

It is important to appreciate that “[t]his statutory provision is in the conjunctive,” which means that unless XPO “shows that all three prongs of the test have been met, an employment relationship will be found.” Sw. Appraisal Grp., LLC v. Adm'r, Unemployment Comp. Act, 324 Conn. 822, 832 (2017) (emphasis added). Put differently, class certification may be granted if the commonality requirement is established as to any one of the three “prongs” of the ABC test.

As noted in the body of this memorandum of decision, however, the court deems the record insufficient to determine these various issues, as the Board, through its constrained approach, left the record in an insufficient state for the court to make its own determination. The board must be the party to apply the proper standard in the first instance; Southwest Appraisal Group, LLC v. Administrator, Unemployment Compensation Act, 324 Conn. 822, 844, 155 A.3d 738 (2017); and this court cannot reweigh evidence in the record, Pajor v. Administrator, Unemployment Compensation Act, 174 Conn.App. 157, 170, 162 A.2d 265, cert. denied, 327 Conn. 977, 174 A.3d 801 (2017). Even so, the court will address these issues with greater specificity.

Thus in Cennamo v. Administrator, 22 Conn.Supp. 302, 306, 170 A.2d 739 (1961) Judge Bordon said: " While the court cannot make a finding as a substitute for the commissioners, it may when the evidence calls for it, remand the case to the commissioners for a rehearing and finding of facts in accordance with the evidence." See also Slimada v. Administrator, 137 Conn. 380, 391-92, 77 A.2d 765 (1951); see also Southwest Appraisal Group, LLC v. Administrator, 324 Conn. 822, 844 fn.15, 155 A.3d 738 (2017); Higgins v. Landers Frary & Clark, 12 Conn.Supp. 391, 393 (King, J. 1943). Judge Nadeau in McCulley v. Administrator, Unemployment Compensation Act, CV 96 0154447, (1997), discussed a remand which underlines the broad scope for remand under § 31-249b.

This provision is commonly called the "ABC test," and "unless the party claiming the exception to the rule that service is employment shows that all three prongs of the [ABC] test have been met, an employment relationship will be found." Sw. Appraisal Grp., LLC v. Adm'r, Unemployment Comp. Act , 324 Conn. 822, 155 A.3d 738, 745 (2017) (citation omitted). When an economic relationship qualifies as employment under the ABC test, Connecticut law subjects an employer to a number of regulations.

er (1) conduct its own complete review of the record; see, e.g., Frazer v. McGowan , 198 Conn. 243, 250, 502 A.2d 905 (1986) (when trial court has applied incorrect legal standard, appellate court reviews undisputed facts disclosed on record to determine whether personal jurisdiction exists); or (2) remand the case to give the trial court an opportunity to apply the correct legal standard in the first instance. See, e.g., Frederiksson v. HR Textron, Inc ., 484 Fed. Appx. 610, 613 (2d Cir. 2012) (concluding that District Court improperly dismissed action for forum nonconveniens under incorrect legal standard and remanding case for consideration under correct standard); State v. Swebilius , 325 Conn. 793, 815, 159 A.3d 1099 (2017) (directing Appellate Court to reverse judgment of trial court denying motion to dismiss and to remand case to give parties opportunity to argue case under correct legal standard); Southwest Appraisal Group, LLC v. Administrator, Unemployment Compensation Act, 324 Conn. 822, 844–45, 155 A.3d 738 (2017) (remanding case to give board opportunity to apply correct legal standard); Raser Technologies, Inc. v. Morgan Stanley & Co., LLC , supra, 449 P.3d at 164–65 (concluding that trial court applied incorrect legal standard in dismissing action for lack of personal jurisdiction and remanding case to allow that court to perform proper analysis of record in first instance). In either event, North Sails, as the plaintiff, is entitled to have the record evaluated under the correct legal standard.