Perry v. Delisle7/12/2005
v. Settles, 16 Va. App. 1, 2, 427 S.E.2d 428, 429 (1993), aff'd, 247 Va. 165, 440 S.E.2d 613 (1994) (per curiam); see alsoMark Five Constr. Co. v. Gonzalez, 42 Va. App. 59, 62, 590 S.E.2d 81, 83 (2003).
However, we have held that, "if an employer regularly employs three or more persons to carry out the established mode of performing the work of the business, he should remain subject to the provisions of the Act even if . . . the number of his employees temporarily falls below three." Cotman v. Green, 4 Va. App. 256, 259, 356 S.E.2d 447, 449 (1987). As we noted in Osborne v. Forner, 36 Va. App. 91, 548 S.E.2d 270 (2001), because " he term 'regularly' implies a 'practice' or a 'constant or periodic custom' of employment," the commission should "look for 'regularly-recurring periods' of employing the requisite number of persons over some reasonable period of time." Id. at 96, 548 S.E.2d at 272 (citations omitted). That is, to avoid having "an employer's status . . . fluctuate between being subject to the Act and being exempt from it," an employer will be deemed to have "regularly in service" three or more employees if "the recurring periods of employing the requisite number of employees" is "the rule and not the exception." Id. Accordingly, to determine whether an employer is subject to the provisions of the Act, the commission must also look to " he number of persons used to carry out the established mode of performing the work of the business." Cotman, 4 Va. App. at 259, 356 S.E.2d at 448. Overall, the commission's focus should be on "the character of the business" rather than "the character of the employment relationship." Id.
Thus, when an employer defends a claim on the ground that it is not subject to the provisions of the Act, the commission must make two distinct inquiries. First, the commission must determine whether the employer carried its burden of proving, by a preponderance of the evidence, that, at the time of the alleged incident, it had "regularly in service" fewer than three employees in Virginia. Second, if the employer sustains this burden of proof, the commission must then determine whether, at the time of the alleged incident, the employer's "established mode of performing business" regularly required three or more employees. If so, the employer will be deemed subject to the provisions of the Act even though it had fewer than three employees on the date of the alleged incident. As we noted in Cotman, this two-pronged test prevents an employer from avoiding liability on the basis of an "unusual, temporary condition ," whereby the employer has fewer employees than its business regularly requires. Id. at 259, 356 S.E.2d at 448.
The determination of whether an employer has met its burden of proving that it regularly employs fewer than three employees "is made by the Commission after exercising its role as finder of fact." Bass v. City of Richmond Police Dept., 258 Va. 103, 114, 515 S.E.2d 557, 563 (1999); see Osborne, 36 Va. App. at 95, 548 S.E.2d at 272 (" hether the facts bring a person within the law's designation, is usually a question of fact."); see also Lynch v. Lee, 19 Va. App. 230, 234, 450 S.E.2d 391, 393 (1994) (affirming the commission's determination that the employer did not "regularly employ" three or more employees, noting that " ufficient credible evidence supports the commission's finding that the laborers . . . were part-time and seasonal"); cf. Mark Five Constr. Co., 42 Va. App. at 64-65, 590 S.E.2d at 83 (affirming the commission's determination that the "service" of appellant's employees in Virginia was "regular" rather than "sporadic or irregular," reasoning that " redible evidence in the record supports the commission's ruling"). Similarly, the det
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