The Third Department determined a business, Eray Inc., which matched students with music teachers, was required to pay unemployment insurance contributions. The court affirmed the Unemployment Insurance Appeal Board’s finding that the musicians were employees, not independent contractors:
… [W]here the provision of professional services is involved, the relevant inquiry becomes “whether the purported employer retains overall control of important aspects of the services performed” … . The “overall control” test “has been applied to musicians who ‘do not easily lend themselves to direct supervision or control'” … .
During the period in question, Eray matched students with music instructors based upon its assessment of the students’ needs and the instructors’ qualifications, scheduled the lessons and followed up with both the instructors and the students to ensure that they were matched appropriately. While Eray did not dictate the curriculum or the method of instruction, it rented and provided the space in which the teachers almost exclusively conducted their lessons, equipped the space with chairs, music stands, a piano, a drum set and a collection of music books that could be used during those lessons, billed the students, paid the teachers an agreed-upon portion of the fee collected from each student and fielded student complaints. In addition, Eray required the teachers to submit any scheduling changes to it for its approval and notify it if they were going to be late to a lesson or send a substitute in their stead and, when requested, Eray would arrange for substitute instructors. Furthermore, although Eray maintained that the agreements were not enforced, several of the instructors signed agreements that, among other things, prohibited them from contacting students directly or providing private lessons to their students in the two years following their resignation. Matter of Eray Inc. (Commissioner of Labor), 2016 NY Slip Op 01024, 3rd Dept 2-11-16
UNEMPLOYMENT INSURANCE (MUSICIAN/MUSIC TEACHERS ARE EMPLOYEES)