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Claimant Who Sold Educational Materials Was an Employee

The College Network (TCN) sells educational materials for personal study from home to obtain college credits through testing. Claimant was retained by TCN to promote and selling the materials. After claimant stopped working for TCN he filed a claim for unemployment insurance. The Unemployment Insurance Appeal Board upheld the decision that claimant was an employee entitled to unemployment insurance.  The Third Department affirmed:

It is well settled that “the existence of an employment relationship is a factual issue for the Board to decide and its determination will be upheld if supported by substantial evidence” … .  “The predominant consideration in making this inquiry is evidence of the alleged employer’s control over the results produced or the means used to achieve those results, with the latter being more important” … .  Here, there is ample evidence that TCN exercised control over many aspects of the program advisors’ work.

Notably, TCN established the program advisors’ sales territory and provided them with sales leads as well as product knowledge training.  Although the program advisors could pursue these leads or develop their own, they were paid commissions based upon percentages set by TCN depending on the manner in which the sale was generated.  The program advisors were required to report to TCN the results of company-generated leads and were only allowed to use advertisements and promotional materials approved by TCN.  TCN provided program advisors with company email addresses and business cards, and reimbursed them for the expenses of attending some training.  Notably, at times, regional sales managers accompanied the program advisors on sales calls to ensure they were providing customers with accurate information. In addition, TCN maintained a corporate calendar by which it would schedule appointments for the program advisors depending upon their availability.  Significantly, the program advisors were expected to contact nine customers within a 90-day period, and TCN retained the right to terminate them if they were underperforming.  TCN also prohibited the program advisors from working for competitors for a two-year period.  Matter of Smith…, 515773, 3rd Dept 9-26-13

 

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