Pacesetter Corp. v. Labor & Industrial Relations Commission

884 S.W.2d 295, 1994 Mo. App. LEXIS 1304
CourtMissouri Court of Appeals
DecidedAugust 9, 1994
DocketNo. WD 48877
StatusPublished
Cited by2 cases

This text of 884 S.W.2d 295 (Pacesetter Corp. v. Labor & Industrial Relations Commission) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pacesetter Corp. v. Labor & Industrial Relations Commission, 884 S.W.2d 295, 1994 Mo. App. LEXIS 1304 (Mo. Ct. App. 1994).

Opinion

HANNA, Presiding Judge.

The Pacesetter Corporation (Pacesetter) appeals a decision by the Missouri Labor and Industrial Relations Commission (Commission) which determined that Steven Frie-deck (claimant), formerly employed by Pacesetter, was entitled to wage credits for a prior period of employment. The issue on appeal is whether the services performed by claimant were those of a “direct seller” as defined in § 288.034.12(16), RSMo Supp.1993, and therefore not “employment.”

The facts are undisputed. From April 3, 1989 through May 15, 1989, the claimant performed services for Pacesetter as a sales representative. His job was to sell siding to customers for residential homes. He worked pursuant to a contract with Pacesetter, which stated that he was paid on a commission basis only, and that he was not an employee of Pacesetter for federal and state income tax purposes.

At all relevant times, claimant was headquartered at Pacesetter’s office in Earth City, Missouri. The Earth City office has a staff of three to four individuals to handle administrative duties, six to ten telemarketers, and ten to fifteen sales representatives. The normal procedure at that office is that the telemarketers make phone calls and arrange for visits by the sales representatives to potential customers. The sales representatives then travel to the customers’ homes to sell the product. If a sale is made, the contract is drawn up and signed in the customer’s home. The sales representative then returns the sales contract to the office administrators. Individuals at the Earth City office contact the siding supplier in St. Louis and order the materials needed for each specific job. The siding is delivered to and temporarily stored at the Earth City warehouse. The office administrators next contact one of approximately six installers employed by Pacesetter throughout the state to retrieve the siding from the warehouse and install it at the customer’s home.

[297]*297On December 5, 1990, the Division of Employment Security (Division) entered a determination of wage credits for claimant in the amount of $795 per quarter for the quarters ending March 31, 1989, and June 30, 1989. Pacesetter appealed this determination. On June 12, 1990, a telephonic hearing was held before an appeals referee. The referee found that claimant was a direct seller under § 288.034.12(16), RSMo Supp.1993, and that the services he performed for Pacesetter were not “employment.”

The Division filed an appeal before the Commission and, nearly three years after the appeal was filed, it reversed the referee’s decision, finding that the claimant’s services were not exempt. Pacesetter appealed the Commission’s decision to the Circuit Court of Cole County, Missouri, which affirmed that decision. Pacesetter now appeals to this court.

On appeal, we review the decision of the Commission rather than the judgment of the circuit court. Labor & Indus. Relations Comm’n v. Division of Employment Sec., 856 S.W.2d 376, 378 (Mo.App.1993). When the Commission’s factual findings are supported by competent evidence in the record, we will only determine whether application of the applicable statute to the undisputed facts was erroneous as a matter of law. Id. The Commission’s interpretation of unemployment compensation statutes is entitled to great weight. Garden View Care Ctr., Inc. v. Labor & Indus. Relations Comm’n, 848 S.W.2d 603, 606 (Mo.App.1993).

The statute at issue in this case is § 288.034.12(16), RSMo Supp.1993, which states that the term “employment” shall not include:

(16) Services performed as a direct seller who is engaged in the trade or business of selling, or soliciting the sale of, consumer products in the home or otherwise than in, or affiliated with, a permanent, fixed retail establishment, if eighty percent or more of the remuneration, whether or not paid in cash, for the services performed rather than the number of hours worked is directly related to sales performed pursuant to a written contract between such direct seller and the person for whom the services are performed, and such contract provides that the individual will not be treated as an employee with respect to such services for federal tax purposes;

It is undisputed that the claimant was paid • entirely on a commission basis pursuant to a written contract which contained the requisite language. Pacesetter challenges the Commission’s findings that (1) siding is not a “consumer product”; and (2) the services performed by the claimant were “in, or affiliated with, a permanent, fixed retail establishment”.

First, Pacesetter challenges the Commission’s decision that siding is not a consumer product under § 288.034.12(16). Noting that the Missouri Employment Security Act does not include a definition of “consumer product,” the Commission chose to use the definition contained in the Federal Anti-Tampering Act, 18 U.S.C. § 1365(g)(1)(B) (Supp. 1994), which states that a consumer product is:

(B) any article, product, or commodity which is customarily produced or distributed for consumption by individuals, or use by individuals for purposes of personal care or in the performance of services ordinarily rendered within the household, and which is designed to be consumed or expended in the course of such consumption or use;

The Federal Anti-Tampering Act is a statute designed to prevent tampering with food, drugs and cosmetics. The Commission held that siding is not designed to be consumed or expended in the course of its use, but rather, becomes a part of the real estate and is a fixture.

The question which must be answered is whether siding is appropriately considered a “consumer product,” giving a plain and natural meaning to that phrase. There are no Missouri cases which define “consumer product” as that term is used in the Employment Security Act. Therefore, it is appropriate to look to the construction given the term by foreign jurisdictions that have interpreted their employment security acts. See Agri-Foods, Inc. v. Industrial Comm’n, 511 S.W.2d 898, 903 (Mo.App.1974). In Agri-[298]*298Foods, in order to determine whether certain farming operations fit within the “agricultural labor” exemption of the Employment Security Act, this court held:

In this determination we are without benefit of any Missouri decisions, so we look to the constructions accorded by foreign jurisdictions to their employment security acts. Although not conclusive, these constructions are persuasive because the employment security enactments of the several states form an integral part of the national plan for social security and represent a cooperative effort by the states and the national government to carry out a common purpose for the general welfare.

Id (citing Mid-Continent Aerial Sprayers v. Industrial Comm’n, 420 S.W.2d 354, 358 (Mo.App.1967); Pioneer Potato Co. v. Division of Employment Sec.,

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Bluebook (online)
884 S.W.2d 295, 1994 Mo. App. LEXIS 1304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pacesetter-corp-v-labor-industrial-relations-commission-moctapp-1994.