The Third Department determined claimant, who operated a janitorial cleaning business, based upon a franchise agreement with Jan-Pro, was an employee of Jan-Pro and was therefore entitled to unemployment insurance benefits:
The record evidence demonstrates that Jan-Pro assigned claimant a specific geographic territory and required new franchisees to undergo initial mandatory training, which was paid for by Jan-Pro. Franchisees were also required to operate the business in accordance with the procedures established at the training and the standards set forth by Jan-Pro … . To that end, franchisees had to use Jan-Pro-sanctioned equipment, supplies, products and business forms … . Jan-Pro helped resolve any complaints between a customer and a franchisee and retained the right to discontinue a franchisee’s services to any client any time … . Jan-Pro provided franchisees with a starter set of business cards, which contained Jan-Pro’s logo, and claimant’s business card listed Jan-Pro’s name, logo and address … . Although claimant had the option of designing his own business card, any such designs required Jan-Pro’s approval. Furthermore, according to the franchise agreement, if claimant developed any new concepts or techniques that improved Jan-Pro’s business, they became Jan-Pro’s property … .
The franchise agreement also contained a non-compete provision barring claimant from operating for one year in any area of Jan-Pro’s affiliates or franchises … . Moreover, the franchise agreement gave Jan-Pro the sole right to invoice and collect from claimant’s customer accounts, maintain revenue records with respect to such accounts and accept payment from claimant’s customers. While the franchise agreement designated claimant as an independent contractor, such terms are not dispositive of claimant’s status … . Matter of Baez (PD 10276, Inc.–Commissioner of Labor), 2016 NY Slip Op 07061, 3rd Dept 10-27-16
NEMPLOYMENT INSURANCE (OPERATOR OF A JANITORIAL CLEANING BUSINESS PURSUANT TO A FRANCHISE AGREEMENT WAS AN EMPLOYEE OF THE FRANCHISOR)