Argued November 14, 2013.
On Petition for Review from the Office of Administrative Hearings. (DOES-744-12).
Michael Caison, Pro se.
Laura Golden Liff and Adam W. Smith, for respondent, Project Support Services, Inc. Christopher M. Leins was on the brief.
Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, filed a statement in lieu of brief, for respondent, the District of Columbia Department of Employment Services.
Before GLICKMAN and MCLEESE, Associate Judges, and REID, Senior Judge.
Reid, Senior Judge:
Petitioner, Michael Caison, filed a claim for unemployment compensation after he was terminated from employment by respondent, Project Support Services, Inc. (" PSS" or " PSS, Inc." ). His claim was denied by the District of Columbia Department of Employment Services (" DOES" ) on the ground that he was an independent contractor and not an employee of PSS. He filed an appeal with the District of Columbia Office of Administrative Hearings (" OAH" ). In this court, he challenges the decision of an OAH Administrative Law Judge (" ALJ" ) that affirmed the claims examiner's determination. For the reasons stated below we vacate OAH's decision and remand this case to OAH for further proceedings consistent with instructions that appear at the end of this opinion.
The record establishes that PSS recruits and provides persons to federal agencies who perform a range of services, including engineering, administrative, contract, and realty services. Some of these individuals are designated by PSS as employees and others are designated as independent contractors.
At the outset of the evidentiary hearing conducted on May 23, 2012, the ALJ announced that the only issue was whether Mr. Caison was an independent contractor. The ALJ further stated that " [b]ecause the burden of proof is on you, Mr. Caison, you will put your testimony on first" and PSS " will have an opportunity for cross-examination."
Mr. Caison testified that PSS hired him on February 4, 2002, after he submitted " an application, resume, [and] cover letter." He was placed with the federal General Services Administration (" GSA" ) as a realty specialist " under contract to [PSS]." Mr. Caison started as " a W-2 employee, but became . . . an employee with limited benefits," and he was paid at an hourly rate. In early 2006, Lou Hammond, PSS's President, asked him to " consider becoming an independent contractor." That year, he received a W-2 tax form and a 1099 tax form. Thereafter PSS provided him with a 1099 form for tax purposes. After this modification, Mr. Caison stated that his interactions with PSS and GSA did not change, PSS continued to refer to him as an employee, and some real-estate specialists were designated employees while others were designated independent contractors. Mr. Caison maintained that he had been misclassified, and that under the common law, he should have been classified as a PSS employee, because his supervisor was Tony Sterling, the PSS official who terminated Mr. Caison's employment. In addition, Mr. Caison was required " to work core government ...