“Mystery Shopper” Not an Employee

The Third Department determined claimant, a mystery shopper, was not an employee entitled to unemployment benefits because the employer, Confero, exercised minimal control over claimant’s work:

Here, claimant testified that, when a new mystery shopping event became available, he was notified via email by a scheduling company and then was able to view the assignment on Confero’s website. Claimant had the liberty of choosing what assignments, if any, he wanted to perform and, after he accepted an assignment, Confero did not even require that claimant perform the assignment himself. Rather, claimant had the discretion to send a substitute in his place so long as he provided notification to the scheduling company to ensure that the substitute was not overexposed at a given location. Although each assignment came with certain tasks that claimant had to perform, the manner in which he performed those tasks was fully within his discretion. Significantly, Confero did not require that claimant perform any minimum number of assignments, request that he seek permission for time off or set forth a particular work schedule. According to Confero’s president, claimant was free to work as little or as much as he wanted. For each assignment that he completed, claimant was paid a nonnegotiable fixed fee that was set by Confero’s client. Further evidencing a lack of control, Confero did not provide claimant with any training, supply him with any equipment or require him to attend any meetings, and it fully permitted him to work for competing companies, which he did regularly. Matter of Chan (Confero Consulting Assoc., Inc.–Commissioner of Labor), 2015 NY Slip Op 03890, 3rd Dept 5-7-15