Claimant, Who Worked Pursuant to a Consulting Agreement, Was Not an Employee

The Third Department determined claimant, who worked pursuant to a consulting agreement with two companies, was not an employee:

Tomen America Inc. was eliminated when Toyota negotiated to purchase assets of Tomen and acquire many of its employees. Claimant negotiated and drafted an agreement with both Tomen and Toyota whereby he served as a consultant for both companies, during set periods, to provide post-integration support in human resource matters with regard to the Tomen employees being assimilated by Toyota. As a consultant with Toyota, claimant worked three to five days a month and set his own schedule. He was not required to report to any supervisor, was not given any direction by anyone, did not submit his work for review, did not participate in regular human resource meetings and was issued an identification badge indicating that he was a contractor. Claimant submitted a monthly invoice for an agreed-upon payment, which, pursuant to the agreement drafted by claimant, withheld no taxes. Matter of Farley (Commissioner of Labor), 2015 NY Slip Op 06747, 2nd Dept. 9-3-15