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Rocha v. Keka Construction3/31/2005
relieve Keka of liability for workmen's compensation.
Moreover, the fact that Mr. Rocha did not sign the subcontract agreement is certainly not proof of an independent contracting relationship. Indeed, the absence of a signed subcontract agreement would instead seem to suggest an employer/ employee relationship. Even if Mr. Rocha had signed it, a contract is not conclusive of the nature of the relationship. In addition, the weight the Board placed on the fact that Mr. Rocha allegedly presented Keka with a certificate of insurance was erroneous. Contrary to the Board's conclusion, there was another reason, of which the Board was well aware, why Mr. Rocha would have presented Keka with a certificate of insurance - to further the ruse that he was an independent contractor so that he could avoid payroll taxes.
Counsel for Keka points out that in Unlimited Constr. v. Almond, the failure of the employer to obtain a certificate of insurance from Almond was seen as evidence in support of the Board's conclusion that he was an employee and not an independent contractor. That Court also stated, " ad Unlimited obtained a certificate from Almond it would have had a bearing on whether Almond was an employee or independent contractor." While, the provision of a certificate of insurance might be a factor to consider in determining the nature of the relationship, I find that, as with a contract, it cannot be said to be conclusive of the issue. This is even more true in cases like this one, in which the parties may have believed that the certificate was being provided in order to falsely create the appearance of an independent contracting relationship. The nature of the relationship is determined by the facts and not by the belief of the parties that they can get around the system simply by setting up the appearance of an independent contracting relationship.
CONCLUSION
I find that, as a matter of law, the Board's analysis was seriously flawed. Although the Board never stated that it was relying on the belief of the parties in its decision, it considered their beliefs extensively and it appears that it may have inappropriately relied too much on those beliefs rather than looking only to the facts and circumstances of the relationship. The undisputed facts show that Mr. Rocha only worked for Keka, that he worked a fixed number of hours per week, that Keka determined his working hours, that Keka paid him a fixed sum on a weekly basis, that he did not submit bids for Keka's work, that he did not provide supplies and materials, that Keka told him what work to do, that Keka told him when to do the work, that Keka told him where to do the work, and that Keka told him how to do the work. When you consider all of the undisputed facts and properly consider the "Silva" ruse for what it is worth, then the Board's finding that Mr. Rocha was an independent contractor is simply not a logical conclusion.
The Board's decision cannot be saved simply by stripping away its errors. To do so would leave insufficient facts to support its decision. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. With all the flaws in the Board's analysis, I cannot find that there were adequate facts to support its conclusion. The Board's decision must be reversed and remanded so that the Board may reconsider the facts consistent with Delaware law.
IT IS SO ORDERED.
Very truly yours,
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