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SECURITY CONSULTANT WAS EMPLOYEE OF OFF-TRACK BETTING FACILITY DESPITE INDEPENDENT CONTRACTOR DESIGNATION IN AGREEMENT.

The Third Department determined a security consultant who worked undercover at an Off-Track Betting (OTB) facility (Race Palace) was an employee despite the “independent contractor” designation in the written agreement:

… Claimant and the other security consultants provided services exclusively at the location of the Race Palace and claimant's work schedule was established through consultation with another security consultant. He was compensated at a negotiated hourly rate of pay that was set forth in an independent contractor agreement and was required to submit claim forms and activity reports detailing his services within established time frames in order to receive payment from OTB. In addition, he was reimbursed by OTB for certain preapproved expenses and was required to keep all information regarding his services strictly confidential. In view of the foregoing, substantial evidence supports the Board's finding that OTB retained the requisite control necessary to establish the existence of an employment relationship … . Although the written agreement designated claimant as an independent contractor, it is not dispositive of claimant's employment status … . Matter of Dwyer (Nassau Regional Off-Track Corp. — Commissioner of Labor), 2016 NY Slip Op 03232, 3rd Dept 4-28-16


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