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Claimant Was an Employee Notwithstanding a Written Agreement Describing Her as an Independent Contractor

The Third Department determined claimant was an employee of Prometric Inc.  Claimant was hired as a nurse aide evaluator (NAE) to evaluate nursing assistant candidates.  The fact that the written agreement labeled claimant as an independent contractor was not determinative:

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 …. Significantly, where, as here, the work of medical professionals is involved, the pertinent inquiry is whether the purported employer retained overall control over the work performed … .

Here, Prometric developed an assessment tool to be used to evaluate the skills that a test candidate needed to perform and conducted annual training sessions with claimant and other NAEs to ensure consistency in testing. Prometric interviewed individuals that it wished to retain as NAEs and reimbursed them for mileage and travel expenses. It established an hourly rate of pay for specific work activities, but other rates were sometimes negotiated depending upon the circumstances. The work of the NAEs was performed off site either at nursing homes or training facilities and the NAEs chose their work assignments from a computer-generated list. Although the NAEs had flexibility in scheduling their assignments and did not have set hours, if an NAE was unable to show, Prometric was responsible for finding a replacement or canceling the test. Notably, Prometric provided claimant with all testing materials and other equipment needed to evaluate the candidates, had him wear an identification badge and required him to maintain strict confidentiality. Furthermore, Prometric had a senior nurse evaluator conduct an annual review of claimant’s work who assisted him in correcting any deficiencies. The foregoing indicates that Prometric retained sufficient overall control over the work of claimant and other similarly situated NAEs to be considered their employer … . Accordingly, notwithstanding the written agreement labeling claimant an independent contractor …, substantial evidence supports the Board’s decisions. Matter of Makey, 2014 NY Slip Op 06226, 2nd Dept 9-18-14

 

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