Tuesday, January 10, 2017


Mailed and Filed: DECEMBER 23, 2016 IN THE MATTER OF: Appeal Board No. 585930:

OPINION: The credible evidence establishes that the company herein exercised sufficient direction, supervision and control over the claimant to demonstrate an employment relationship. In Matter of Concourse Ophthalmology Associates, PC, 60 NY2d 734 (1983), the Court held that whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact; that no one factor was determinative; and that an employment relationship could be found even if other evidence in the record would have supported a contrary conclusion. In the case at hand, the written agreement subjected him and any helpers or drivers he might use to drug and alcohol testing; barred him from disclosing confidential information regarding the company or its customers; and prohibited him competing with the company for 12 months following termination of services. He was provided with company identification and was required to use communications equipment that was compatible with the company's system. His work was subject to deadlines. The company handled customer complaints. Moreover, if customers did not pay the company, the claimant still got paid (See Matter of Voisin, 134 AD3d 1186 [3d Dept 2015]; see also Matter of Garbowski, 136 AD3d 1079 [3d Dept 2016]). The fact that the claimant used his own vehicle and signed a written agreement designating him an independent contractor is not dispositive (See e.g. Matter of Kelly, 28 AD3d 1044 [3d Dept 2006]; Matter of CDK Delivery Service, Inc., 151 AD2d 932 [3d Dept 1989]).

The employer's reliance on Matter of Jennings, 125 AD3d 1152 [3d Dept 2015] is misplaced. In that case, the claimant paid all of his expenses including tolls, whereas in the case at hand, the claimant was reimbursed for some tolls. Moreover, in Jennings, the employer did not impose any conditions on the way that claimant performed his work, whereas in the case at hand, the written agreement provided conditions. Additionally, deadlines were imposed for deliveries. Finally, in the case at hand, the company restricted the claimant from competing with it.

As to the company's contention that its control over the couriers was mandated by government regulations, e.g., the Department of Transportation regulations concerning background checks and drug testing, the employer exercised or reserved the right to exercise sufficient amount of supervision, direction or control above and beyond such regulations (Compare Matter of Choto, 82 AD3d 1369 [3d Dept 2011]; Matter of Leazard, 74 AD3d 1414 [3d Dept 2010]; and Matter of Wannen, 57 AD3d 1029 [3d Dept 2008]). As the company exercised sufficient supervision, direction and control over the claimant's services to establish his status as an employee of the company, we conclude that the company should be held liable for additional contributions.

DECISION: The decision of the Administrative Law Judge is reversed. The employer's objection, that the claimant and all other persons similarly situated were independent contractors, is overruled.

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