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Substantial Evidence Supported Finding Claimant Was an Employee, Not an Independent Contractor

The Third Department determined the board’s finding that claimant was an employee of ASISS was supported by substantial evidence, despite evidence suggesting an independent contractor relationship:

Whether there exists an employment relationship is a factual issue for resolution by the Board and its decision will not be disturbed when supported by substantial evidence … . In making such a determination, the Board considers whether the putative employer exercised control over the results produced or the means used to achieve those results, with the means being the more important consideration … . Here, the testimony of both claimant and Anthony Stone, the principal of ASISS, established that claimant completed an application for employment and was hired at a rate of pay established exclusively by Stone. ASISS assigned claimant to a specific location, established his hours of work and covered him under its workers’ compensation insurance. Furthermore, it provided him with an employee code of conduct and required him to call in to an automated system at the beginning and end of each shift, to sign a time sheet and to submit incident reports. The client was not informed that claimant was an independent contractor, claimant was required to request time off two weeks in advance and ASISS would find a replacement if claimant was unavailable for his shift. Claimant was required to adhere to the company dress code by wearing a dark suit and tie, as well as a company lapel pin, while on duty. Furthermore, any complaints about claimant’s performance would be handled by ASISS and claimant would receive his pay even if the client did not pay ASISS. Accordingly, while there was other evidence in the record suggestive of an independent contractor relationship, we find that substantial evidence supports the Board’s determination that claimant was an employee … . Matter of Thomas J Dunno…, 2014 NY Slip Op 06348, 3rd Dept 9-25-14

 

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