Images in Motion of El Paso, Inc. - Page 27

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          that the instructors were employees, or failed to give such facts           
          the appropriate amount of weight.  First, with respect to                   
          behavior control, three of the four instructors interviewed                 
          stated they received a “manual” when they became instructors at             
          the studio.  However, the instructor interviews do not support              
          the conclusion that the “manual” was mandatory.  The interviewed            
          instructors neither recalled the dance class instructions in the            
          manual ever being enforced nor did they sign anything stating               
          they had received it.  Having reviewed the portion of the manual            
          included in the record, we find it provided helpful tips for                
          instructors and information regarding emergency situations.  We             
          find it was unreasonable for respondent to rely on the “manual”             
          as evidence of control given the instructors’ statements and the            
          overall factual record developed during the audit.  As the                  
          Appeals officer found, the “manual” was no more than a guideline.           
          Moreover, the instructors selected the classes they wanted to               
          teach, and these classes represented their individual talents and           
          experience.  Petitioner never provided the instructors with any             
          training.  The instructors brought their expertise to the                   
          relationship with petitioner.  The amalgamation of these findings           
          indicates that it was unreasonable for the examining agent to               
          conclude petitioner had a sufficient level of control over the              
          instructors to classify them as employees.                                  
               We also believe that respondent’s litigating position with             
          respect to financial control was unreasonable.  Petitioner had a            




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Last modified: May 25, 2011