The issue was whether Part C of the test, being customarily engaged in an independent trade or business, required the claimants to actually have other appraisal customers or clients at the same time that they were performing appraisals for Southwest. The Employment Security Board of Review, which had been upheld in several trial court decisions, was of the opinion that the claimants had to have performed services for third parties, and not just have the potential to do so, in order to be deemed independent contractors. In a decision dated March 31, 2017, the Supreme Court reversed this position and held that other factors could be considered in the absence of actual customers. [The decision is reported at 324 Conn. 822.]
The Supreme Court applied a “totality of circumstances” analysis, in which many other factors could support the existence of an independent trade or business, even in the absence of actual customers. Among the many factors to be considered were possessing a state license or special skills, advertising an independent business, having a separate place of business, having vehicles or equipment for the independent business, carrying insurance, having a clientele, working for other entities, and having a personal business reputation. No single factor – including whether services were provided to customers other than the putative employer – is dispositive by itself.