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Sales Rep Was an Employee Entitled to Unemployment Insurance Benefits

The Third Department determined a cellular phone sales representative was an employee entitled to unemployment insurance benefits:

Whether an employer-employee relationship exists within the meaning of the unemployment insurance law “is a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence” … . “While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important” …. .

… The record establishes that Cellular Sales precluded sales representatives from selling competing products and its products outside of the “territory” absent its prior written consent, suggested, and in certain instances required, that products be sold at a minimum price, set sales goals for the sales representatives to attain and provided a script that sales representatives were to “[s]tick to . . . on every customer opportunity” regarding a certain cellular phone. In addition, Cellular Sales specified a certain dress code and provided that any sales representative not meeting such dress code in its store would be “address[ed]” by a leader. Cellular Sales also required sales representatives to, among other things, complete certain mandatory training that it paid for, to “strictly comply” with its directives regarding use, disclosure and application of marketing information and to know and follow certain “procedures for the market.” …[T]he record establishes that Cellular Sales dictated the number of sales representatives that would work in the store on a given day, provided each sales representative with a Cellular Sales email address and business cards, required, for a certain period of time, that sales representatives send customers thank you cards that it provided and supplied the sales representatives with products for demonstrations. The record also indicates that Cellular Sales reprimanded sales representatives regarding tardiness, held mandatory meetings, required sale representatives who chose to work in the store to submit their availability and requests for days off and, once a shift was assigned, required a sales representative to secure coverage if he or she could not work on the assigned shift. Matter of Pratt (Cellular Sales of N.Y., LLC–Commissioner of Labor), 2015 NY Slip Op 04549, 3rd Dept 5-28-15

 

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