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THE BOARD’S RULING THAT CLAIMANT WAS AN EMPLOYEE OF THE DELIVERY SERVICE WAS UPHELD; THE DISSENT ARGUED THE FACTS WERE MOST SIMILAR TO ANOTHER DECISION INVOLVING THE SAME EMPLOYER WHERE THE COURT FOUND NO EMPLOYER-EMPLOYEE RELATIONSHIP (THIRD DEPT).

The Third Department, over a dissent, upheld the Unemployment Insurance Board’s ruling that claimant was an employee of the delivery service (NEL) entitled to unemployment insurance benefits:

… [A]fter claimant applied to be a delivery driver, NEL conducted a screening process that included a verification of claimant’s driver’s license, a Department of Motor Vehicles background check and proof by claimant of relevant insurance coverage. Thereafter, NEL and claimant executed a written “Owner Operator Agreement,” wherein claimant was required, among other things, to provide a safe vehicle, maintain relevant licenses and insurance and to provide NEL with invoices for completed client engagements in order to be paid. Claimant and NEL negotiated a set rate of pay and claimant was responsible for all expenses, including the cost of fuel and equipment, but NEL provided that claimant’s pay could be increased during times of high fuel prices by way of a fuel surcharge. Claimant was required to pay an administrative fee to NEL for each day of provided services. Claimant could refuse any assignment and could subcontract out an accepted assignment. If an accepted assignment could not be completed, claimant was required to notify NEL, and it was then NEL that provided another delivery driver. NEL also provided claimant with the client’s address and the time that claimant was to report there. Any complaints made to NEL’s client regarding claimant were forwarded to NEL, which NEL handled.

It is true that claimant bears some similarities to the claimant in Matter of Pasini (Northeast Logistics, Inc.—Commissioner of Labor) (204 AD3d 1187 [3d Dept 2022]). The facts here, however, are more in line with Matter of Legros (Northeast Logistics, Inc.—Commissioner of Labor) (205 AD3d 1245 [3d Dept 2022]) and Matter of Rivera (Northeast Logistics, Inc.—Commissioner of Labor) (204 AD3d 1185 [3d Dept 2022]), where the finding of an employment relationship was upheld. That said, although there is evidence in the record that could support a contrary determination, in view of the evidence credited by the Board, substantial evidence supports the finding that an employment relationship exists … .

From the dissent:

Given the distinct similarity between the circumstances here and in Pasini, it is my view that the record lacks substantial evidence of the requisite control to establish an employer-employee relationship. Matter of McIntyre (Northeast Logistics, Inc.), 2023 NY Slip Op 00465.Third Dept 1-2-23

Practice Point: This case illustrates the importance of precedent based on similar facts in unemployment-insurance cases. Here the majority held the facts were similar to another case involving the same employer where an employment relationship was found. The dissent argued the facts were most similar to another case involving the same employer where no employment relationship was not found.

 

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