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TUTORS WERE EMPLOYEES OF TUTORING CENTER.

The Third Department determined claimant tutors were employees of Island Tutoring Center which provided tutors to school districts, private schools and private parties, despite the “independent contractor” contract designation:

… [T]he record establishes that ITC advertises for tutors to provide tutoring services to its clients. Potential tutors, including [claimant] Ritch, were interviewed and screened by ITC's owner, Steven Thode, who would review a prospective tutor's résumé and list of references. If a prospective tutor was offered employment, he or she would typically sign a contract, as Bianco did, identifying that tutor as an independent contractor. That contract provided that employment was contingent upon a favorable reference and fingerprint check and verification of employment eligibility. Although the tutors were permitted to work for other tutoring companies, the contract also included a provision prohibiting the tutors from soliciting ITC's clients or students.

When clients contacted ITC to request tutoring services, ITC would select a tutor from its database and inform that tutor of the area of study or subject to be instructed and the number of tutoring hours required. Although tutors were free to decline assignments, ITC did not permit tutors to provide their own substitutes after accepting an assignment. Following provision of the services, ITC required tutors to fill out time sheets and its session report forms in order to receive payment. As to payment, ITC paid its tutors prior to receiving payment from its clients, reimbursed tutors for certain expenses and loaned tutors teaching materials from its library when necessary. ITC also fielded its clients' complaints and feedback concerning the performance of its tutors and could remove tutors from assignments if there was a negative complaint. Matter of Ritch (Island Tutoring Ctr., Inc.–Commissioner of Labor), 2016 NY Slip Op 03569, 3rd Dept 5-5-16

UNEMPLOYMENT INSURANCE (TUTORS WERE EMPLOYEES OF TUTORING CENTER)/TUTORS (UNEMPLOYMENT INSURANCE, TUTORS WERE EMPLOYEES OF TUTORING CENTER)

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