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Lesniewski v. W.B. Furze Corp.2/23/1998
k work needed to be done on the roof line.
O'Neill worked at an auto body shop located across the street from the construction site. He would frequently visit the job site, but would never tell Furze how his job should be performed, how many hours he should work, or what types of materials to use. Further, he did not instruct Furze on who to hire or fire. O'Neill testified that he did not possess the technical expertise to supervise the site, as he could not read blueprints. Likewise, Lord would visit the site one to three times a week for short periods of time, but would not provide any directions to Furze or his workers. The only supervision Furze received was from the architect, who would review the blueprints to determine whether the specifications were being followed.
The parties appear to agree that until the end of December 1994, Furze was an independent contractor and that petitioner was an employee of Furze. The dispute arises over whether the nature of the relationship between Furze and EJ's, and consequently petitioner's employment status, changed after December 1994. Even though all of the masonry work was completed, Furze stayed on to supervise the carpentry and steel work. Furze was no longer getting paid by the block. Instead, the pay was $200 a day for supervisory services. Lord consulted with Furze on which subcontractors to hire, however, Furze would supervise the subcontractors and answer any of their questions.
Furze testified that as construction progressed, Lord and O'Neill became more active during their visits to the site, including the reviewing of blueprints. Despite these changes, Furze continued to bill for materials and labor on company invoices of Furze Corp. Also, checks were made payable to the Furze Corp. Eugene Lord, president of EJ's, asserted that Furze Corp. was always a contractor, and that the nature of that relationship never changed. In contrast, Furze felt his company was no longer a contractor but that he was an individual employed as a "foreman."
Similar ambiguities surround Lesniewski's employment status. Lesniewski worked two days in November. He then came back when work began again in December, but only worked four or five days in January 1995. Furze would instruct petitioner on his daily assignments. Petitioner used a few of his own tools and the rest were provided by Furze. Furze kept track of petitioner's hours and would personally hand petitioner his pay in cash in an envelope each week. Petitioner did not report the cash and continued to collect unemployment compensation while working at the site. Petitioner was also used on several jobs other than the EJ's job when he was being paid directly by Furze Corp.
In March 1995, petitioner again worked at the site but was paid by EJ's. Furze made up slips of paper with workers' first names, hours worked, and total amounts of pay due. He forwarded the slips to Lord whose secretar
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