Real Estate Broker Not an Employee of Commercial Real Estate Firm

The Third Department upheld the Unemployment Insurance Appeal Board’s determination that claimant, a real estate broker, was not an employee of a commercial real estate firm (Optimal):

It is well settled that the existence of an employment relationship is a factual issue for the Board to decide and its determination will be upheld if supported by substantial evidence … . The pertinent inquiry is whether the purported employer exercised control over the results produced or the means used to achieve those results, with control over the latter being more important … .

Evidence was presented that claimant was paid a commission of 60% of the brokerage fee collected by Optimal, which she negotiated with Optimal’s senior managing director. Moreover, claimant did not have an established work schedule or work location, independently maintained her own real estate license, carried her own business cards and was permitted to and did receive commissions on referrals from other parties. Notably, she was not required to report to anyone at Optimal nor was she required to accept leads that Optimal sent to her. In view of the foregoing, while we are unable to conclude, as a matter of law that no employment relationship exists (see Labor Law § 511 [19]), substantial evidence supports the Board’s finding that Optimal did not exercise sufficient control over claimant’s work to be deemed her employer … . Matter of Spielberger…, 2014 Slip Op 07564, 3rd Dept 11-6-14