The Third Department reversed the appeal board and determined waiters and bartenders placed with clients for catered functions by John Lack Associates, LLC, were not John Lack employees:
Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence … . “[S]uch a relationship will be found to exist where the employer exercises control over the results produced or the means used to achieve those results, with the latter being more important”… .
John Lack provides its clients with individuals fitting the client’s requirements for each particular event. The agency neither interviews nor screens the workers, other than to ensure that they have the necessary uniform and equipment. However, the workers generally provide their own uniform and equipment. Although the client may provide a uniform on occasion, John Lack does not. After being retained by a client, John Lack contacts individuals from its lists and explains the details and requirements of the available job. The individual is free to refuse a job and may do so, for example, if the pay rate offered is unacceptable. Notably, most of the waiters and bartenders accept work from other placement agencies. If the worker accepts the job offered by John Lack, the agency directs him or her to report to a representative of the client at the event. However, it is the client that instructs, controls and supervises the worker at the event. In this regard, the client explains the rules of conduct to the worker and, if a worker’s performance is not satisfactory, the client will instruct the individual to leave or fire him or her from the job. There is no indication in the record that John Lack provides workers with any training. Matter of John Lack Associates, LLC …, 516638, 3rd Dept 12-5-13