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“Contract Attorney” Properly Determined to Be an Employe

The Third Department determined an attorney who was hired by a firm as a “contract attorney” was entitled to unemployment benefits:

“[I]t is well settled that the existence of an employer-employee relationship is a factual issue for the Board to decide and its determination will not be disturbed if supported by substantial evidence” … . Inasmuch as the work at issue here involved professional services that generally do not lend themselves to close supervision or control of the details of the work, the pertinent inquiry is whether the employer has retained “overall control,” and “substantial evidence of control over important aspects of the services performed other than results or means is sufficient to establish an employer-employee relationship” … . In that regard, West hired claimant after an interview and based upon his analytical expertise acquired during a federal clerkship. West set his rate of pay at $100 an hour or on a per project basis, and provided him with a parking pass, office, desk, computer, receptionist, a firm email address and information technology support. Two attorneys supervised him, gave him instructions on how to perform his tasks, told him to ask permission before pursuing new legal issues, reviewed his work and made revisions. He was also covered under West’s malpractice insurance. In our view, the foregoing constitutes substantial evidence to support the Board’s decision that claimant was an employee of West, even if evidence exists to support a contrary conclusion… . Matter of Lavalley, 2014 NY Slip Op 06232, 3rd Dept 9-18-14

 

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