You are here: / / CLAIMANT TRUCK DRIVER WAS AN EMPLOYEE OF FLS UNDER THE COMMON LAW AND UNDER...
,

CLAIMANT TRUCK DRIVER WAS AN EMPLOYEE OF FLS UNDER THE COMMON LAW AND UNDER THE LABOR LAW, DESPITE THE FACT THAT FLS DID NOT MAINTAIN A FLEET OF TRUCKS; CLAIMANT WAS THEREFORE ENTITLED TO UNEMPLOYMENT BENEFITS (THIRD DEPT).

The Third Department determined Fundamental Labor Strategies (FLS) was claimant truck driver’s employer, pursuant to common law and the Labor Law (NYS Commercial Goods Transportation Industry Fair Play Act), despite the fact FLS did not maintain a fleet of trucks:

Labor Law § 862-b (1) provides, in relevant part, that “[a]ny person performing commercial goods transportation services for a commercial goods transportation contractor shall be classified as an employee of the commercial goods transportation contractor unless” such person is either a separate business entity as defined by Labor Law § 862-b (2) or an independent contractor within the meaning of Labor Law § 862-b (1) (a)-(c). The statutory scheme further defines “commercial goods transportation services” as “the transportation of goods for compensation by a driver who possesses a state-issued driver’s license, transports goods in . . . New York, and operates a commercial motor vehicle” (Labor Law § 862-a [3]), and a “commercial goods transportation contractor” includes any legal entity that compensates a driver for performing such services (Labor Law § 862-a [1]). …

FLS falls squarely within the definition of a commercial goods transportation contractor as set forth in Labor Law § 862-a (1). Hence, the statutory presumption of employment applies in the first instance (see Labor Law § 862-b [1]).

To overcome the statutory presumption, FLS needed to establish that claimant was “free from control and direction in performing [his] job,” both under the terms of his letter agreement with FLS and “in fact” (Labor Law § 862-b [1] [a]), that the services rendered by claimant were “performed outside [FLS’s] usual course of business” (Labor Law § 862-b [1] [b]) and that claimant was “customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service” he performed for FLS (Labor Law § 862-b [1] [c]). All three criteria — commonly referred to as the ABC test — had to be met in order for claimant to be classified as an independent contractor (see Labor Law § 862-b [1]).

… [S]ubstantial evidence supports the Board’s finding that FLS failed to establish that claimant was free from direction and control in performing his job. Matter of Doster (Fundamental Labor Strategies–Commissioner of Labor), 2020 NY Slip Op 05262, Third Dept 10-1-20

 

You might also like
SEX OFFENDER CAN NOT BE KEPT IN PRISON AFTER SERVING HIS MAXIMUM SENTENCE ON THE GROUND SUITABLE HOUSING HAD NOT YET BEEN FOUND.
Question of Fact About Whether Solar Panels Violate a Restrictive Covenant Precluded Dismissal of Complaint 
FITNESS INSTRUCTOR NOT AN EMPLOYEE.
Claimant Who Sold Educational Materials Was an Employee
CLAIMANT IS ENTITLED TO SIMULTANEOUSLY RECEIVE AN AWARD FOR A SCHEDULE LOSS OF USE AND A PERMANENT PARTIAL DISABILITY CLASSIFICATION (THIRD DEPT).
Criteria for Sexual Harassment Lawsuit Against Employer Explained
Violation of a Local Law Did Not Demonstrate a Horse Pen Constituted a Private Per Se Nuisance
BIOMETRIC SCREENER WAS AN EMPLOYEE OF HEALTH AND WELLNESS COMPANY.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CLAIMANT, A HAIRCARE PRODUCT SALES REPRESENTATIVE, WAS NOT AN EMPLOYEE OF THE... AN UNPAID PENALTY ASSESSED FOR DEFENDANT’S FAILURE TO MAINTAIN WORKERS’...