COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Giancarlo Zambrano, Individually, and
A.R.H. Roofing & Construction,
(Citation No. WH080076)

Petitioner

v. Docket No. LB-08-281

Office of Attorney General -
Fair Labor Division,

Respondent.

Appearance for Petitioner:

Giancarlo Zambrano

11B Cold Spring Drive
Sutton, MA 01590

Appearance for Respondent:

Kate J. Fitzpatrick, Esq.

Office of the Attorney General -
Fair Labor Division
One Exchange Place
Worcester, MA 01602

Administrative Magistrate:

Sarah H. Luick, Esq.


SUMMARY OF DECISION

A small construction company and two individuals were issued a Citation for non-payment of wages (G.L. c. 149, § 148) to a worker who had been normally paid an hourly wage in cash at the end of each work week, and for misclassifying him as an independent contractor. Holding that one of the individuals, Mr. Zambrano, was only an employee not responsible for non-payment of wages.

DECISION

Pursuant to the provisions of G.L. c. 149, § 27C(b)(4), the Petitioner, Giancarlo Zambrano, is appealing Citation No. WH080076 issued by the Respondent, Office of the Attorney General-Fair Labor Division (OAG-FLD), ordering restitution for nonpayment of wages to complainant, Jose Ruiz. The citation includes an allegation that Mr. Ruiz was misclassified as an independent contractor and assesses civil penalties for unintentional violations. (Exs. 1 & 2.) A pre-hearing conference was held September 4, 2008, and a hearing was held November 5, 2008, at the offices of the Division of Administrative Law Appeals (DALA), 133 Portland Street, 3rd Floor, Boston, MA 02114.

Various documents are in evidence. (Exs. A & 1 - 11.) Two tapes were used. The Respondent presented the testimony of its Inspector, Leah Turney. The Petitioner testified in his own behalf. Both parties made arguments on the record, and the Respondent filed a brief by December 3, 2008 when the record closed. (Ex. A)

FINDINGS OF FACT

1. ARH Roofing and Construction is a sole proprietorship owned, operated and controlled by Alan R. Henry. (Exs. 6, 7 & 9. Testimony.)

2. In and around June, 2007, Giancarlo Zambrano was working for D.P. Construction on a home renovation project in Westborough. Daniel Paris of D.P. Construction signed the contract as general contractor. Mr. Zambrano had done sales work for D.P. Construction at and around that time and found this project for D.P. Construction. The project cost was about $100,000. Mr. Zambrano expected a 10% commission for securing the job but did not receive it. Mr. Zambrano also worked for D.P. Construction doing laborer, carpentry, some roofing and other work as an hourly paid employee on this project. During the time he worked for D.P. Construction on this job, Mr. Zambrano secured A.R.H. Roofing and Construction to perform some of the carpentry work as a subcontractor. Alan Henry performed the carpentry work. (Testimony)

3. Mr. Zambrano had been working prior to June 2007 for Lifestyle
Builders. Jose Ruiz was also an employee of Lifestyle Builders at the same time. They worked together on some projects. (Testimony)

4. Before the Westborough job was completed, Mr. Zambrano quit working for D.P. Contractors in and around August 2007. He quit because he did not receive the 10% commission, and because at and around that time the homeowners, the Rowans, were not making the scheduled payments as work was completed. (Ex. 10. Testimony.)

5. By November 2007, Mr. Zambrano was an employee of A.R.H. Roofing and Construction. He performed for Mr. Henry the same kind of construction work on projects as he had for D.P. Contractors, including sales work. He had a business card listing himself as the Vice President of A.R.H. Roofing and Construction, and listing the company as holding a general contractor's license and carrying required insurance. Mr. Henry's name was not listed on his business card. Mr. Zambrano did not have a general contractor's license or carry insurance to do home improvement construction work on his own. He and Mr. Henry had A.R.H. Roofing and Construction shirts that they would wear to meetings involving A.R.H. Roofing and Construction projects. (Exs. 5, 6, 7 & 8. Testimony.)

6. In and around November 2007, Mr. Zambrano was contacted by the Rowan's project manager, Patrick Smitt. They had become friendly when Mr. Zambrano worked on the job for D.P. Contractors. Mr. Smitt told him D.P. Contractors had left the job, and the Rowans wanted to finish the project. He asked Mr. Zambrano to locate a contractor for the job. Mr. Zambrano approached Mr. Henry for A.R.H. Roofing and Construction to complete the job. Mr. Henry reviewed the work left to be done and came up with an estimate of $30,000 that was agreeable to Mr. Smitt and the Rowans. Mr. Henry and A.R.H. Roofing and Construction agreed to do the work for the Rowans. (Exs. 5 & 10. Testimony.)

7. Rather than Mr. Henry signing the contract with the Rowans to be the general contractor for the small project, Mr. Zambrano entered into the contract with the Rowans. He did this because he had an agreement with Mr. Henry that his sales work in securing this work for A.R.H. Roofing and Construction would earn him a 10% commission, and he wanted to be sure he would receive his $3,000 commission. The plan was for Mr. Zambrano to enter into the contract with the Rowans and then to subcontract all the work to A.R.H. Roofing and Construction. This is what happened and what Mr. Henry, Mr. Smitt, and the Rowans expected. At all pertinent times, Mr. Zambrano was A.R.H. Roofing and Construction's employee, and held himself out as such to the Rowans and Mr. Smitt. Once he received the $3,000 commission, Mr. Zambrano turned over the remaining funds to Mr. Henry who paid his construction workers. Mr. Henry only paid his workers in cash. (Exs. 5, 9 & 10. Testimony.)

8. The work on the Westborough project with A.R.H. Roofing and Construction commenced sometime toward the end of November 2007. The project was over by Christmas 2007. Mr. Zambrano worked for A.R.H. Roofing and Construction on the project doing general laborer, carpentry, and other general construction tasks. Mr. Henry also worked on the project, and the work would start each day at 9:00 AM when he arrived at the job site. By the end of November 2007, Jose Ruiz had been hired by Mr. Henry to work on the Westborough project doing the same kind of laborer work Mr. Zambrano was doing. Mr. Henry would also bring more skilled workers at times to the job site. The work was performed Monday through Friday. The contract with the Rowans was set up so that as work was done each week, the Rowans would pay for the work done and the A.R.H. Roofing and Construction crew would be paid their wages each Friday afternoon. Mr. Henry paid Mr. Ruiz and Mr. Zambrano between $15-$18 per hour for 25-35 hours of work a week. (Exs. 4 & 10. Testimony.)

9. The first few checks from the Rowans were made out to Mr. Zambrano, but once he secured his $3,000 commission, Mr. Henry began receiving the payments directly from the Rowans because the general contractor's license and required insurance was only held by Mr. Henry. (Exs. 5, 9 & 10. Testimony.)

10. At some point in early December, 2007, Mr. Henry and Mr. Ruiz began to have arguments while on the job. Also at this time, Mr. Zambrano felt Mr. Ruiz owed him $900. Mr. Henry was aware of that debt. In the afternoon on Friday, December 7, 2007, Mr. Ruiz quit and never returned to the job site. He and Mr. Henry had been arguing over who owned a tape measure device being used at the job site. Also at this time, the Rowans had held back on the full amount of the scheduled payments so that Mr. Henry was not able to cover all the wages due all his employees on December 7, 2007 using the Rowans' payments. When Mr. Ruiz quit the job, Mr. Henry decided Mr. Ruiz would not be paid at that time. Mr. Henry also mentioned to Mr. Zambrano that he would turn over Mr. Ruiz's wages to Mr. Zambrano when he got the money from the Rowans. Mr. Henry told Mr. Zambrano he could apply those funds toward the $900 Mr. Ruiz owed him. Mr. Ruiz understood that Mr. Zambrano would give him the wages he was owed from Mr. Henry. (Exs. 4 & 10. Testimony.)

11. Mr. Zambrano never received from Mr. Henry the wages owed Mr. Ruiz.
Mr. Ruiz began to call Mr. Zambrano asking for the wages owed him for his work on the Westborough project. (Ex. 4. Testimony.)

12. Mr. Zambrano never paid Mr. Ruiz the amount of back wages from his own funds. (Testimony)

13. Mr. Ruiz filed a complaint with the OAG-FLD over the failure to receive back wages for his work on the Westborough project from December 4 through 7, 2007. He was assisted in filing the complaint by the City of Worcester Human Rights Office. He noted on the complaint form that he speaks English, but prefers to converse in Spanish. The writing on the complaint form is not in his handwriting. He signed the complaint on January 9, 2008. (Ex. 4)

14. Mr. Ruiz's complaint form listed his employer as A.R.H. Roofing and Construction at 16 Lincoln Street in Millville, MA. He did not name Mr. Henry or anyone else as the owner/employer. He listed Mr. Zambrano as the A.R.H. Roofing and Construction local manager and supervisor. He listed the amount of his back wages as 25 hours of work at $18 per hour for a total of $450. He described the work he did as "very limited construction, siding, roofing [and] framing." He listed his start date as July 16, 2007, and noted he quit on December 7, 2007. (Ex. 4)

15. In response to a question on the complaint form, Mr. Ruiz set forth various assertions, all involving Mr. Zambrano as responsible for paying him for his work on the Westborough project. He reported Mr. Zambrano picked him up each work day morning to bring him to the job site. He noted Mr. Zambrano paid him in cash each Friday when the work week ended. Mr. Ruiz reported he had "purchased tools with his own money," and that Mr. Zambrano gave those "tools to another worker," refusing to return them to Mr. Ruiz. He reported falling from the second floor of the Westborough project house breaking a "skill saw," and that Mr. Zambrano told him "he would take $100 out of his pay for the damaged saw." After quitting without getting his wages for his last week of work, Mr. Ruiz reported he "called Mr. Zambrano to be paid," and that Mr. Zambrano told him he would pay him once he got the check. He reported he called Mr. Zambrano each Friday after that, and on December 28, 2007, told Mr. Zambrano he needed the money to pay his rent. He reported that Mr. Zambrano responded that he also needed to pay his rent. Mr. Ruiz noted that Mr. Zambrano never said he would not pay him. Mr. Ruiz reported he called Mr. Zambrano on January 4, 2008, got no answer, and "went to his home in Millbury." At that time, he noted Mr. Zambrano said he was still waiting for the check. Mr. Ruiz reported Mr. Zambrano told him he would pay him on January 5, 2008, but he never did. (Ex. 4)

16. Once this complaint reached the OAG-FLD on January 14, 2008, it was assigned to Inspector Leah Turney. On January 18, 2008, Inspector Turney mailed by regular mail a "first letter" to Mr. Zambrano at 16 Lincoln Street in Millville, MA. He was instructed to respond by January 28, 2008. On February 15, 2008, this letter was resent by regular mail to Mr. Zambrano at 149 Main Street, P.O. Box 119 in Blackstone, MA. The new response deadline was February 25, 2008. On February 26, 2008, Inspector Turney sent a letter to Mr. Zambrano at the Millville address via regular and certified mail, seeking records on Mr. Ruiz's employment pursuant to OAG-FLD authority under G.L. c. 151, § 15. The deadline for responding was March 7, 2008. The letter sent by regular mail was returned to the OAG-FLD by March 3, 2008. The certified mailing was returned on March 6, 2008 with the information of "Moved - left no address." (Ex. 7. Testimony.)

17. On March 3, 2008, Mr. Zambrano came to the OAG-FLD office unannounced. He came to file his own complaint for back wages against A.R.H. Roofing and Construction and Alan Henry. He spoke with Inspector Turney. He stated he was not the owner of A.R.H. Roofing and Construction, but Alan Henry was. At this meeting, he turned over a business card listing himself as Vice President of A.R.H. Roofing and Construction. He did not dispute he had held that title. Mr. Zambrano provided an address for Mr. Henry as the P.O. Box address in Blackstone, MA. He provided telephone numbers for Mr. Henry. He explained that the 16 Lincoln Street, Millville address was the home of Mr. Henry's mother. (Exs. 6, 7 & 11. Testimony.)

18. Mr. Zambrano's complaint form sought $4,500 - $5,000 for commissions owed to him for securing work for A.R.H. Roofing and Construction. He listed the pertinent time period as February 18 to 29, 2008. He listed his employer as A.R.H. Roofing and Construction and Mr. Henry. He noted that A.R.H. Roofing and Construction had only two employees, and that he reported to Mr. Henry. This complaint was not connected to the Rowans' project. Mr. Zambrano listed his own address as 11B Coldspring Drive, Sutton, MA. He listed his start date of employment with A.R.H. Roofing and Construction as June 2007, and his end date as February 29, 2008. He noted he never entered into a written employment contract with A.R.H. Roofing and Construction. He noted he had been discharged. He listed the work he performed as "sales/management." He explained that he felt he was owed "50%" of the profit on a Sudbury job, which would mean the funds remaining once all the employees were paid. When he asked Mr. Henry for the owed funds, which he listed on the form as non-payment of wages, he reported that Mr. Henry retaliated against him by telling him he could come to retrieve his tools, but would not be paid anything else. He listed on the complaint form that Mr. Henry told him he was "sick of supporting you & you are not getting paid." Mr. Zambrano signed the complaint form on March 3, 2008. (Ex. 11. Testimony.)

19. Regarding Mr. Ruiz's complaint, on March 4, 2008, Inspector Turney mailed to Mr. Henry at 16 Lincoln Street in Millville, by regular and certified mail, a G.L. c. 151, § 15 letter seeking employee records. The letter sent by certified mail was returned to the OAG-FLD on March 20, 2008 with an unable to forward message, but the letter sent by regular mail was not returned to the OAG-FLD. (Ex. 7. Testimony.)

20. On March 5, 2008, Inspector Turney received an email from Mr. Zambrano explaining how he had received two telephone calls with threatening messages from Mr. Henry and his wife. (Ex. 7. Testimony.)

21. Inspector Turney and the Assistant Attorney General assigned to Mr. Ruiz's case, Kate Fitzpatrick, spoke by telephone to Mr. Henry on March 10, 2008. Mr. Henry admitted he owned A.R.H. Roofing and Construction, and he acknowledged the company is not incorporated. He acknowledged receiving letters addressed to Mr. Zambrano, but had no recall he had received a letter from the OAG-FLD addressed to him. He gave his address as P.O. Box 119, Blackstone, MA 01504. He was asked over the telephone to produce the G.L. c. 151, §15 documents. After that, the telephone connection was lost. (Ex. 7. Testimony.)

22. Mr. Henry called back the OAG-FLD on March 11, 2008 and spoke to Inspector Turney. He added to the information he had already provided that Mr. Zambrano was his business partner. He said he did not have any employees so he had no employee records he could produce. (Exs. 7 & 9. Testimony.)

23. That same day Inspector Turney received a telephone call from Mr. Zambrano. Mr. Zambrano described the Westborough project, gave the names of the homeowners, and noted the project manager was Patrick Smitt. He explained that he had signed the contract for the project but had sub-contracted all the work to A.R.H. Roofing and Construction and Mr. Henry. He noted that he worked on an hourly basis for Mr. Henry doing project construction work. He acknowledged that he and Mr. Henry would attend project meetings wearing A.R.H. Roofing and Construction shirts. He noted that project work began each day at 9:00 a.m. when Mr. Henry came to the job site with the tools and with another worker. Upon receiving this information, Inspector Turney spoke to Mr. Smitt who confirmed that Mr. Zambrano had signed the contract and that checks for payment for the work had been made out to Mr. Zambrano. Mr. Smitt could not locate any payroll or insurance records about the project. (Exs. 5, 7 & 10. Testimony.)

24. On March 11, 2008, Inspector Turney resent the G.L. c. 151, §15 letter to Mr. Henry using the address of 4 Williams Street, Blackstone, MA 01504 and P.O. Box 119, Blackstone, MA 01504. The letter gave a deadline for responding of March 14, 2008. The letter addressed to 4 Williams Street was returned to the OAG-FLD office on March 17, 2008 as undeliverable. (Ex. 7. Testimony.)

25. No filings were made by Mr. Henry in response to the March 11, 2008 letter. (Testimony)

26. On April 16, 2008, the OAG-FLD issued and mailed by both certified mail and regular mail, Citation # WH080076. It was mailed to Alan R. Henry individually at 4 Williams Street, Blackstone, MA 01504, and to Giancarlo Zambrano individually at 11B Cold Spring Drive, Sutton, MA 01590. It was also mailed to P.O Box 119, Blackstone, MA 01504, with both Mr. Henry's and Mr. Zambrano's names, care of A.R.H. Roofing and Construction. The Citation was for violating G.L. c. 149, § 148 for failing to make timely payment of wages earned by Jose Ruiz between December 4 - 7, 2007. The restitution amount was $450.00. A penalty of $380.00 was imposed for an unintentional violation, increasing the total Citation amount to $830.00. The citation included a notice of violation of G.L. c. 149, § 148B for misclassifying Mr. Ruiz as an independent contractor from December 4 - 7, 2007. A penalty of $350.00 for an unintentional violation was imposed. The back side of the Citation provided instruction on how to request a hearing to contest the Citation, restitution amounts, and penalties imposed. (Ex. 1. Testimony.)

27. Mr. Zambrano received the Citation mailed to him at 11B Cold Spring Drive, Sutton, MA 01590 a few days after it was mailed. He appealed. Mr. Zambrano's letters of appeal to both DALA and the OAG-FLD were dated April 20, 2008, and were both postmarked April 28, 2008. The appeal letters were stamped as received by DALA on April 29, 2008 and by the OAG-FLD on April 30, 2008. (Ex. 2. Testimony.)

28. The envelope with the Citation sent on April 16, 2008 by certified mail to Mr. Henry and to Mr. Zambrano at the P.O. Box 119, Blackstone, MA 01504, was returned to the OAG-FLD on May 12, 2008 as unclaimed and unable to forward. The envelope with the Citation sent by regular mail on April 16, 2008 to Mr. Henry at 4 Williams Street, Blackstone, MA 01504, was returned to the OAG-FLD on April 22, 2008 as undeliverable with no forwarding address. (Ex. 3)

CONCLUSION AND ORDER

TIMELINESS OF APPEALS

The appeal time period in G.L. c. 149, § 27C(4) is ten days. The pertinent
language states:

Any person aggrieved by any citation … may appeal said citation … by filing a notice of appeal with the attorney general and the division of administrative law appeals within ten days of the receipt of the citation ….

I conclude Mr. Zambrano's appeals were timely filed despite being received by the OAG-FLD and by DALA more than ten days after the date the Citation was issued on April 16, 2008. Presuming delivery of agency mail takes a few days is consistent with the tandard Adjudicatory Rules of Practice and Procedure. 801 CMR 1.01(4)(c) states that notices or other communications from "the adjudicating agency, or its designee, shall be presumed to be received … if mailed, three days after deposit in the U.S. mail. The postmark shall be evidence of the date of mailing." The envelope Mr. Zambrano received the Citation in is not in evidence, but I rely on the evidence provided by Inspector Turney that a Citation in the normal course is mailed by OAG-FLD on the date of issue. This means Mr. Zambrano received the Citation on or about April 19, 2008.

801 CMR 1.01(4)(b) of the Standard Adjudicatory Rules of Practice and Procedure requires that upon receipt of papers from a party in a case, the agency "shall stamp papers with the date received … [and that] papers filed by U.S. mail shall be deemed filed on the date contained in the U.S. postal cancellation stamp or U.S. postmark." This is use of the postmark rule to determine if a filing deadline has been met. This means April 28, 2008, the date on the postal cancellation stamp on the two envelopes the appeals were mailed in, is the date of receipt by DALA and by OAG-FLD for purposes of determining whether Mr. Zambrano's appeals were timely filed and not the date stamp by DALA of April 29, 2008 or the date stamp by OAG-FLD of April 30, 2008 on each of the two letters of appeal.

In upholding the use of the postmark rule for Civil Service Commission appeals, the Supreme Judicial Court in Falmouth v. Civil Service Commission & Deutschmann, 447 Mass. 814, 816-817 (2006) at footnote 3, observed: "Both the General Court and executive agencies have employed presumptions that mail delivery takes between two and five days." I also conclude that there is nothing in the language of G.L. c. 149,§ 27C(4) that prohibits use of the postmark rule or calls for some other rule to determine whether an appeal has been timely filed within the required ten day time period. Mr. Zambrano's appeals were timely filed.

MERITS

I conclude the evidence does not support finding Mr. Zambrano held a position with A.R.H. Roofing and Construction that makes him responsible for the violations that led to issuance of the Citation. I conclude he was not a statutory, G.L. c. 149, § 148 employer of Mr. Ruiz by being an officer or agent "having management" responsibilities in A.R.H. Roofing and Construction as argued by the OAG-FLD. (Ex. A) Doing sales work as an employee did not confer that status on him.

I find the evidence is insufficient to show Mr. Zambrano was a business partner of Mr. Henry in A.R.H. Roofing and Construction. I conclude Mr. Zambrano was also not Mr. Ruiz's employer so that he cannot be found to have misclassified Mr. Ruiz as set forth in G.L. c. 149, § 148B. I conclude Mr. Zambrano was at all times relevant to Mr. Ruiz's complaint, a non-management employee of A.R.H. Roofing and Construction performing sales and construction laborer work with no responsibilities for its operations.

The record shows Mr. Zambrano entered into the contract with the Rowans for the sole purpose of ensuring he could receive his 10% commission for securing work for A.R.H. Roofing and Construction. He did this by having the checks made out to him until he received his full $3,000 commission. Mr. Henry estimated the project and not Mr. Zambrano. At all times Mr. Henry, the Rowans, and their Project Manager, Patrick Smitt, knew that only A.R.H. Roofing and Construction would be performing all the project work and hiring all the workers on it. Mr. Zambrano's testimony was credible and understandable when he explained that, after the initial checks and his receipt of the $3,000 commission, subsequent checks the Rowans issued to pay for work as it was done were made out to Mr. Henry and/or A.R.H. Roofing and Construction. This is because Mr. Henry and not Mr. Zambrano held the necessary general contractor's license and required insurance.

The amount of the employees' wages and when and in what form they were paid were matters at all times under the control of Mr. Henry. The work each day on the project would start only when Mr. Henry arrived at the job site. I do not find Mr. Henry hired either Mr. Ruiz or Mr. Zambrano as independent contractors despite his claim in his telephone interview with the OAG-FLD that he had no employees so that he had no employee records to be kept and to turn over pursuant to G.L. c. 151, § 15.

It is not completely clear from the record if Mr. Zambrano helped Mr. Henry cash checks Mr. Zambrano received from the Rowans by endorsing them over to Mr. Henry and thereby permitting Mr. Henry to cash them at his own bank in order to pay his workforce in cash each Friday afternoon. In any case, Mr. Henry always paid wages to his workers in cash, and he was in control of the cash paid to his workers on this project, even if Mr. Zambrano physically handed out the pay to Mr. Ruiz during the brief time period he worked on the project as Mr. Ruiz's complaint form suggests.

Mr. Ruiz never testified. His complaint form is not all that clear and contains inconsistencies. For instance, he states he worked for A.R.H. Roofing and Construction, yet nowhere does the name of Mr. Henry appear. With regard to Mr. Zambrano, Mr. Ruiz stated on the complaint form that he was a local manager or supervisor, but that phrase was a choice listed on the form, not one he listed on his own. Although he never called Mr. Zambrano a business partner in A.R.H. Roofing and Construction, Mr. Ruiz's narrative discussed Mr. Zambrano as though he was able to decide whether or not Mr. Ruiz would be paid, and that is simply not believable. Also, Mr. Ruiz discusses going to the Millville address to ask Mr. Zambrano for his back wages, yet the record shows that address was associated with Mr. Henry's mother and not with Mr. Zambrano. On his complaint form Mr. Ruiz indicated that he prefers to converse in Spanish, and because the narrative information in the complaint form is not in his handwriting, it would have been important to have Mr. Ruiz's testimony to understand just what the narrative was asserting about Mr. Zambrano's position with A.R.H. Roofing and Construction. Therefore, I find the information contained in Mr. Ruiz's complaint form to be insufficient proof that Mr. Zambrano was a business partner and principle of A.R.H. Roofing and Construction.

Mr. Henry's interview information with the OAG-FLD during his telephone calls supports a determination that Mr. Zambrano is not responsible for Mr. Ruiz's back wages. He said he was the sole owner of the unincorporated A.R.H. Roofing and Construction. That makes his statement to Inspector Turney during a later telephone call that Mr. Zambrano was his business partner not credible. No elaboration is offered by Inspector Turney's testimony or in any notes or report about the telephone call information received from Mr. Henry to explain what he meant by business partner.

The fact that on March 3, 2008 Mr. Zambrano filed his own complaint against Mr. Henry for non-payment of wages for his work on an unrelated project in his capacity as an employee of A.R.H. Roofing and Construction, does not show that Mr. Zambrano was Mr. Henry's business partner. He claimed in that complaint and he explained in his testimony that he was owed commissions for sales work he performed for A.R.H. Roofing and Construction that he never received from Mr. Henry. His complaint is consistent with his testimony and with his interview with OAG-FLD that at times he was an employee of A.R.H. Roofing and Construction doing sales work. I also conclude that the business card listing him as a Vice President of the company was not a title with any management authority whatsoever in A.R.H. Roofing and Construction, but was a method he used with Mr. Henry's approval to persuade potential clients he could represent to them that A.R.H. Roofing and Construction had an interest in working on a particular project. I do not find possessing this business card is sufficient evidence to hold Mr. Zambrano responsible as a statutory employer of Mr. Ruiz.
Mr. Zambrano gave a reasonable and credible explanation as to why Mr. Ruiz was not paid as he expected on December 7, 2007 and why, at least in part, Mr. Ruiz decided to quit employment with A.R.H. Roofing and Construction. Mr. Henry and Mr. Ruiz had been arguing on the job for some time, and by December 7, 2007, Mr. Henry was angry at Mr. Ruiz. On that day Mr. Henry lacked sufficient funds from the Rowans to pay all his owed wages to his workforce from that source. I find persuasive Mr. Zambrano's testimony that, once Mr. Ruiz told him he was quitting, Mr. Henry decided not to pay Mr. Ruiz and told him he would give his wages to Mr. Zambrano who could then hold onto the amount in partial payment of the $900 Mr. Ruiz owed Mr. Zambrano. Whether or not Mr. Zambrano might have decided to take that path, Mr. Henry never paid Mr. Ruiz's back wages to Mr. Zambrano. This arrangement may be why Mr. Ruiz listed only Mr. Zambrano in his complaint form as the person who owed him the back wages. Mr. Zambrano was credible in his testimony that he told Mr. Ruiz he never received the money from Mr. Henry. Nothing in Mr. Zambrano's testimony on this point was refuted by Mr. Henry in the information he provided during telephone talks with Inspector Turney.

If there is compelling evidence to the contrary concerning my conclusions about Mr. Zambrano's role with A.R.H. Roofing and Construction, no such evidence was presented at the hearing. If Mr. Ruiz had testimony that would have contradicted Mr. Zambrano's account of his relationship with Mr. Ruiz and with A.R.H. Roofing and Construction, then more than his complaint form and the testimony of Inspector Turney was needed to demonstrate a contrary account. The same can be concluded concerning the failure to have Mr. Henry testify. The reports he gave in telephone calls with the OAG-FLD and Inspector Turney's account are not sufficient to establish that Mr. Zambrano was other than a regular employee of A.R.H. Roofing and Construction. Mr. Zambrano has met his burden of proof to prevail in his appeal.


Therefore, I vacate the Citation issued against Mr. Zambrano on April 16, 2008 as to the non-payment of wages to Mr. Ruiz and as to the misclassification of Mr. Ruiz. SO ORDERED.


DIVISION OF ADMINISTRATIVE
LAW APPEALS


"\s\,"
Sarah H. Luick, Esq.

Administrative Magistrate

DATED: May 19, 2009