Bloomington Area Arts Council v. Department of Workforce Development, Unemployment Insurance Appeals

821 N.E.2d 843, 2005 Ind. App. LEXIS 157, 2005 WL 236521
CourtIndiana Court of Appeals
DecidedJanuary 31, 2005
Docket93A02-0401-EX-8
StatusPublished
Cited by12 cases

This text of 821 N.E.2d 843 (Bloomington Area Arts Council v. Department of Workforce Development, Unemployment Insurance Appeals) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bloomington Area Arts Council v. Department of Workforce Development, Unemployment Insurance Appeals, 821 N.E.2d 843, 2005 Ind. App. LEXIS 157, 2005 WL 236521 (Ind. Ct. App. 2005).

Opinions

OPINION

SHARPNACK, Judge.

The Bloomington Area Arts Council ("BAAC") appeals the decision of a Liability Administrative Law Judge ("ALJ") for the Department of Workforee Development, Unemployment Insurance Appeals ("Department") in which the ALJ found that the BAAC owed unemployment insurance tax contributions for instructors of various art classes offered to the public by the BAAC. The BAAC raises one issue, which we restate as whether the ALJ erred by determining that the instructors are employees of the BAAC within the meaning of Ind.Code $ 22-4-8-l(a). We affirm.1

The relevant facts follow. The BAAC is a not-for-profit organization that provides access to the arts in Brown, Green, Monroe, Lawrence, and Owen Counties and supports public participation in the arts by providing "a broad range of programs and services." Transeript at 32. To fulfill its mission, the BAAC operates the John Wal-dron Arts Center in Bloomington where the BAAC exhibits local artists' work, provides performances to the community at no or little cost, operates a gift shop, and offers art education classes to adults and children.

In 2003, the Department initiated an audit of the BAAC and determined that the BAAC had misclassified the instructors of its art classes as independent contractors rather than employees. As a result of the misclassification, the Department found that the BAAC was liable for additional unemployment insurance tax contributions. The BAAC requested a review of the audit, and after a hearing, the ALJ entered the following decision:

FINDINGS OF FACT:
1. The [BAAC] is a not-for-profit organization supporting public participation in the arts in Brown, Green, Lawrence, Monroe, and Owen Counties of Indiana.
As part of its operation, the [BAAC] operates the John Waldron Arts Center in Bloomington, Indiana.
At the arts center, the [BAAC] arranges for various performances, has a gallery for exhibitions, has a gift shop, is involved in a grants program for the arts, provides services to artists, and also conducts an arts Education Program with courses including various classes for both youth, and adults.
[846]*8464. The Department's witness was assigned an audit of the [BAAC] for audit years 2001 and 2002.
5. The Department's witness determined that in audit year 2001, forty-one (41) individuals who performed services for the [BAAC] as teacher/instructors were employees of the [BAAC], and not independent contractors.
6. The Department's witness determined that during audit year 2002, seventy-five (75) individuals who performed services for the [BAAC] as teacher/instructors were employees of the [BAAC], and not independent contractors.
7. The Department's witness contacted an employer representative and discussed these individuals with the representative, reviewed the instructor's agreement between the [BAAC] and these individuals, and reviewed the [BAAC]'s course catalog, in making his decision as to the status of the individuals in question.
8. Education Program course offerings are established as follows: Local area artists contact the [BAAC] and present a potential subject matter for a course to the [BAAC]. The artists inform the [BAAC] of their schedules, and the [BAAC] then attempts to fit all the various artists and their courses into a curriculum fitting everyone's schedule. At that point, the [BAAC's] catalog is published. Approximately seventy (70%) to eighty (80%) percent of the courses published in the [BAAC's] catalog are actually held. If enough potential students (and the courses are offered to the public) register for a course, then the course is held. If an insufficient number of students register for a course, it is cancelled. If a course is cancelled, the teacher/instructor receives no remuneration. When individuals register for courses, they pay the course fee. If the course is cancelled, the fee is refunded. Instructors are paid on two occasions during a particular session, with half of the remuneration being paid during the second week of the session, and the other half being paid at the end of the session.
9. With regard to adult courses, the students in the courses buy their own materials for the courses.
10. With regard to youth courses, the instructor purchases the materials for the course. The cost of the materials is built into the cost of the course by the [BAAC].
11. The [BAAC] has an agreement which it utilizes as the contract between the [BAAC] and teacher/instructors. The [BAAC] attempts to get all of the individuals to execute such an agreement; however, only about seventy (70%) to seventy-five (75%) percent of the teach-erfinstructors return executed contracts to the [BAAC].
12. Under the terms of the contract, the instructor agrees to teach the particular class at the scheduled times. The instructor agrees to be compensated at a particular hourly rate per contract hour (the hours during the sessions). The contract also give the [BAAC] the authority to monitor classes; however, the [BAAC] testified that it does not normally monitor instructors, but does monitor the general operation of the facility during instruction periods to insure that the students [847]*847are treated properly. If an instructor cancels a class due to illness or other cireamstances, the instructor is required to either find a qualified substitute, or cancel the class, and then inform the [BAAC]. The instructor is responsible for paying any substitutes which they use. Pursuant to the terms of the contract, the instructor agrees to adhere to the policies of the [BAAC] contained in the instruetor's manual; however, the [BAAC] testified that it really does not use the manual.
18. The [BAAC] provides teachers/instructors who earn over six hundred dollars ($600) per year an IRS Form 1099, pursuant to IRS laws.
14. The [BAAC] has no restrictions on the teacher/instructors teaching elsewhere, or having their own studios or other businesses. Approximately fifty percent (50%) of the teacher/instructors are professional artists, and most of the other teacher/instructors are graduate students at Indiana University. The qualifications of the position are set forth in the course catalog, and include a four-year degree or its equivalence in the visual or performing arts or an education degree with art certification. No pri- or teaching experience is required, but it is preferred. No accreditation is required.
15. Without the [BAAC's] operation, the teacher/instructors would not have the opportunity to offer their classes.
16. The [BAAC] does an evaluation at the end of the session to essentially find out how the session went, as opposed to utilizing it for any type of discipline of the teacher/instructors.
17. The [BAAC] does not impose a penalty if the teacher/instructors are late for classes, although the contract does provide that the instructor will arrive in the class and will be ready to teach by the scheduled time, or make alternative arrangements in advance of the scheduled class.
18. The [BAAC] holds no faculty meetings.
19.

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821 N.E.2d 843, 2005 Ind. App. LEXIS 157, 2005 WL 236521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bloomington-area-arts-council-v-department-of-workforce-development-indctapp-2005.