This is the decision of the Railroad Retirement Board regarding whether the
services performed by MKD for Kelly-Hill Company (KHC) for the period February
2007 through the present constitute employee service under the Railroad
Retirement and Railroad Unemployment Insurance Acts. The question of MKD’s
service was first raised in an undated letter received by the agency on February
4, 2008. MKD signed the letter along with LPM and MLS
which stated “Kelly Hill also has KMD & MS who would like to pay into their
railroad retirement”.
No further information or inquiry was received from MKD until a letter dated
September 10, 2008, was sent to MKD asking him to complete the “Employee
Questionnaire” regarding the services he provided through KHC.
According to the information provided by MKD, he provided services to “KCS,
Iowa Interstate, BNSF, Union Pacific, CN, Watco, and DM&E”. When asked to
“describe fully the nature and extent of all the services you performed for each
company”, MKD stated he installed switches for all the companies; installed
track for KCS and Watco; installed crossings for KLS and BNSF; installed derails
for CN, DM&E, Union Pacific, and Watco; installed switches for Iowa Interstate;
and constructed track for Watco. MKD stated he was not under a written contract
for the work he performed; his hours vary from job to job, and he is paid “lump
sum per job; mostly time and material”. MKD stated his title is foreman, and in
response to the question requesting “the date you began providing services to
each company and KHC”, he provided various dates for each company, with the
earliest date being February 2007. MKD stated he performed the services on the
premises of the various railroads, and received instructions and/or training
from KHC.
As KHC has been found not to be an employer under the Acts administered by
the Board (Board Coverage Decision 08-39), service provided to that company is
not creditable under the Acts.
The question remains whether the services MKD performed for those railroad
clients of KHC which are employers covered by the Acts may be considered
creditable service under the Acts.
To be an employee of a covered railroad employer for purposes of benefit
entitlement under the Acts administered by the Board, MKD must fall within the
definition of that term provided by the Acts. Section 1(b) of the RRA and
section 1(d)(i) of the RUIA both define a covered employee as an individual in
the service of an employer for compensation. Section 1(d) of the RRA further
defines an individual as "in the service of an employer" when:
(i)(A) he is subject to the continuing authority of the employer to supervise
and direct the manner of rendition of his service, or (B) he is rendering
professional or technical services and is integrated into the staff of the
employer, or (C) he is rendering, on the property used in the employer's
operations, personal services the rendition of which is integrated into the
employer's operations; and
(ii) he renders such service for compensation * * *.
Section 1(e) of the RUIA contains a definition of service substantially
identical to the above, as do sections 3231(b) and 3231(d) of the Railroad
Retirement Tax Act (RRTA) (26 U.S.C. § 3231(b) and (d)).
A determination of whether or not an individual performs service as an
employee of a covered employer is a fact-based decision that can only be made
after full consideration of all relevant facts. In considering whether the
control test in paragraph (A) is met, the Board will consider criteria that are
derived from the commonly recognized tests of employee-independent contractor
status developed in the common law. In addition to those factors, in considering
whether paragraphs (B) and/or (C) apply to an individual, we consider whether
the individual is integrated into the employer’s operations. The criteria
utilized in an employee service determination are applied on a case-by-case
basis, giving due consideration to the presence or absence of each element in
reaching an appropriate conclusion with no single element being controlling.
Because the holding in this type of determination is completely dependent upon
the particular facts involved, each holding is limited to that set of facts and
will not be automatically applied to any other case.
The focus of the test under paragraph (A) is whether the individual
performing the service is subject to the control of the service-recipient not
only with respect to the outcome of his work but also with respect to the way he
performs such work. The tests set forth under paragraphs (B) and (C) go beyond
the test contained in paragraph (A) and could hold an individual to be a covered
employee if he is integrated into the railroad's operations even though the
control test in paragraph (A) is not met. The Board has in recent years not
applied paragraphs (B) and (C) to employees of independent contractors
performing services for a railroad where such contractors are engaged in an
independent trade or business, relying on the decision of the United States
Court of Appeals for the 8th Circuit in Kelm v. Chicago, St. Paul, Minneapolis
and Omaha Railway Company, 206 F. 2d 831 (8th Cir. 1953). The Kelm decision
distinguished between services performed for the railroad by employees of a firm
with a clearly independent existence, and services performed by an individual
who primarily contracts to furnish only his own labor. 206 F. 2d at 835.
Employees of a contracting firm must meet the direction and control requirements
of paragraph (A), while single individuals contracting directly with the
railroad may fall within the broader definitions of (B) or (C). In making a
determination under these sections, the Board is not to be bound by the
characterization of the relationship stated by the parties in a contract.
Gatewood v. Railroad Retirement Board, 88 F. 3d 886, (10th Cir., 1996), at
891(holding with respect to an attorney’s agreement to perform professional
services for the railroad as an independent contractor that “ * * *merely to
state that such a relationship exists does not necessarily make it so * * * .”)
According to the “Contract for Work or Services”, supplied by KHC in
connection with its coverage determination, work is performed at times and
locations authorized by the railroad client, and work is done in accordance with
the conditions, requirements, and stipulations contained in the particular
proposal and bid form/schedule of billable service items. KHC furnishes all
superintendence, labor, tools, equipment, materials, and supplies, and all other
things requisite and necessary to perform the work under the agreement. KHC and
the employees of KHC are not considered employees of the railroad; KHC pays the
wages and salaries of KHC employees performing the services; KHC provides safety
training for its employees; KHC requires its employees to wear personal
protective equipment as required by regulations (hardhats are affixed with KHC’s
logo); and KHC will maintain payroll records for its employees. These records
will include time and day of week when employee’s work week begins, hours worked
each day, total hours worked each workweek, basis of compensation (hourly,
weekly, piecework), regular hourly pay rate, total overtime; total wages paid;
client for whom work is performed; job location; and Forms W4, W-2, 1099. The
agreement also states that KHC is required to maintain daily employee timesheets
for both hourly and salaried employees. The agreement further states that the
railroad client has “no control over the employment, discharge, compensation of
and service rendered by” KHC’s employees.
A majority of the Board, Labor Member dissenting, finds that the evidence of
record indicates that MKD has been performing services as an employee of KHC,
rather than as an employee of KHC’s railroad clients. While the nature of the
work (installing crossings, derails, switches, and building track) may require
that MKD work on the premises of a particular railroad, information from KHC is
that he did not use that railroad’s supplies or equipment, but the supplies and
equipment of KHC. He was trained by KHC, and paid by KHC. The railroad client,
according to the written agreement, had no control over the services rendered by
MKD.
MKD has provided no information to rebut the information provided by KHC.
Accordingly, it is the decision of a majority of the Board that the services
performed by MKD for various railroad employers were performed as an employee of
Kelly-Hill Company. As Kelly-Hill Company has been found not to be an employer
under the Acts, a majority of the Board therefore finds that these services are
not creditable under the Railroad Retirement and Railroad Unemployment Insurance
Acts. The Labor Member dissents for the reasons stated in his dissent in B.C.D.
08-39.
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Original signed by: |
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Michael S. Schwartz |
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V.M. Speakman, Jr. (Dissenting) |
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Jerome F. Kever |
The Board has found LPM to be
an employee of Kelly Hill Company, and not an employee of the railroads for whom
he provided services through Kelly Hill. The question of MLS’s service is
addressed in a separate decision.
The Board’s regulations
provide that an employee of a company is not a party to any coverage
determination with respect to that company. See section 259.2(a) of the Board’s
regulations.
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