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THE TRANSFER OF CERTAIN ASPECTS OF SELLER’S BUSINESS TO BUYER DID NOT MEET THE CRITERIA IN LABOR LAW 581; THEREFORE THE TRANSFER DID NOT TRIGGER THE TAKEOVER OF THE SELLER’S UNEMPLOYMENT INSURANCE EXPERIENCE ACCOUNT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the HOP’s purchase of certain aspects of a competing business, Playground, did not trigger HOP’s takeover of Playground’s unemployment insurance experience account:

The statute provides that where a business has been transferred from one employer to another, either in whole or in part, the transferee shall take over and continue the unemployment insurance experience account of the transferor (see Labor Law § 581 [4] [a] …). A transfer, however, will not be deemed to have occurred “if the transferee has not assumed any of the transferring employer’s obligations, has not acquired any of the transferring employer’s good[]will, has not continued or resumed the business of the transferring employer either in the same establishment or elsewhere, and has not employed substantially the same employees as those of the transferring employer” … . To negate a transfer, all four of these requirements must be met … . …

… [U]ndisputed evidence was presented that, in connection with its purchase of assets from Playground, HOP did not assume any of Playground’s obligations, did not continue or resume operation of Playground’s screening room … and did not retain any of Playground’s employees. The sole basis upon which the Board concluded that a transfer had occurred was HOP’s alleged acquisition of Playground’s goodwill. The record, however, does not support the Board’s finding in this regard.

The asset purchase agreement did not identify goodwill as an asset encompassed by the agreement, nor was it specifically mentioned on the list of property set forth on schedule 2.1 of the agreement. Matter of HOP N.Y. Entertainment, LLC (Commissioner of Labor), 2021 NY Slip Op 03093, Third Dept 5-13-21

 

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UBER DRIVERS ARE EMPLOYEES ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined that Uber drivers are employees entitled to unemployment insurance benefits:

Uber controls the drivers’ access to their customers, calculates and collects the fares and sets the drivers’ rate of compensation. Drivers may choose the route to take in transporting customers, but Uber provides a navigation system, tracks the drivers’ location on the app throughout the trip and reserves the right to adjust the fare if the drivers take an inefficient route. Uber also controls the vehicle used, precludes certain driver behavior and uses its rating system to encourage and promote drivers to conduct themselves in a way that maintains “a positive environment” and “a fun atmosphere in the car.” Considering the foregoing, we find no reason to disturb the Board’s finding of an employment relationship … . Matter of Lowry (Uber Tech., Inc–Commissioner of Labor), 2020 NY Slip Op 07645, Third Dept 12-17-20

 

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CLAIMANT WAS AN EMPLOYEE OF A LOGISTICS COMPANY WHICH FACILITATES DELIVERIES (THIRD DEPT).

The Third Department determined claimant was an employee of a logistics company (US Pack) which facilitates deliveries and was therefore entitled to unemployment insurance benefits:

The record reflects that claimant was assigned specific workdays and hours by US Pack’s operations manager and was issued an identification badge bearing US Pack’s name. Claimant was required to sit in the client’s parking lot during set hours — for which he was paid a set fee — and wait for US Pack to contact him with assignments. The client would notify US Pack about assignments, which, in turn, would call claimant to retrieve the assignments. Claimant was required to call dispatch at US Pack once the assignments were loaded into his car. Once a delivery was completed, claimant was required to call dispatch again, providing the name of the person who accepted the delivery and the time delivery was complete, before moving onto the next delivery. Although claimant could refuse an assignment, he testified that when he did, he was told he could be fired, and the following day was punished by being passed over for assignments. Some compensation was negotiated, although claimant testified that US Pack set the compensation of some of the deliveries.

Although the record establishes that claimant used his own vehicle and was not reimbursed any expenses, the record nevertheless supports the Board’s conclusion that US Pack exercised sufficient supervision, direction and control over significant aspects of claimant’s work to establish an employer-employee relationship … . Matter of Thomas (US Pack Logistics, LLC–Commissioner of Labor), 2020 NY Slip Op 07642, Third Dept 12-17-20

 

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CLAIMANT TRUCK DRIVER WAS AN EMPLOYEE OF FLS UNDER THE COMMON LAW AND UNDER THE LABOR LAW, DESPITE THE FACT THAT FLS DID NOT MAINTAIN A FLEET OF TRUCKS; CLAIMANT WAS THEREFORE ENTITLED TO UNEMPLOYMENT BENEFITS (THIRD DEPT).

The Third Department determined Fundamental Labor Strategies (FLS) was claimant truck driver’s employer, pursuant to common law and the Labor Law (NYS Commercial Goods Transportation Industry Fair Play Act), despite the fact FLS did not maintain a fleet of trucks:

Labor Law § 862-b (1) provides, in relevant part, that “[a]ny person performing commercial goods transportation services for a commercial goods transportation contractor shall be classified as an employee of the commercial goods transportation contractor unless” such person is either a separate business entity as defined by Labor Law § 862-b (2) or an independent contractor within the meaning of Labor Law § 862-b (1) (a)-(c). The statutory scheme further defines “commercial goods transportation services” as “the transportation of goods for compensation by a driver who possesses a state-issued driver’s license, transports goods in . . . New York, and operates a commercial motor vehicle” (Labor Law § 862-a [3]), and a “commercial goods transportation contractor” includes any legal entity that compensates a driver for performing such services (Labor Law § 862-a [1]). …

FLS falls squarely within the definition of a commercial goods transportation contractor as set forth in Labor Law § 862-a (1). Hence, the statutory presumption of employment applies in the first instance (see Labor Law § 862-b [1]).

To overcome the statutory presumption, FLS needed to establish that claimant was “free from control and direction in performing [his] job,” both under the terms of his letter agreement with FLS and “in fact” (Labor Law § 862-b [1] [a]), that the services rendered by claimant were “performed outside [FLS’s] usual course of business” (Labor Law § 862-b [1] [b]) and that claimant was “customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service” he performed for FLS (Labor Law § 862-b [1] [c]). All three criteria — commonly referred to as the ABC test — had to be met in order for claimant to be classified as an independent contractor (see Labor Law § 862-b [1]).

… [S]ubstantial evidence supports the Board’s finding that FLS failed to establish that claimant was free from direction and control in performing his job. Matter of Doster (Fundamental Labor Strategies–Commissioner of Labor), 2020 NY Slip Op 05262, Third Dept 10-1-20

 

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CLAIMANT, A HAIRCARE PRODUCT SALES REPRESENTATIVE, WAS NOT AN EMPLOYEE OF THE PRODUCER OF THE HAIRCARE PRODUCTS AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT). ​

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant, a haircare product sales representative, was not an employee of Alterna Holding Corporation, the producer of the haircare products:

Alterna Holding Corporation produces haircare products that are sold at various retail stores. To facilitate its business, Alterna places sales and education representatives at the stores. These representatives educate store employees and customers about Alterna’s products. Claimant was a representative for Alterna at Sephora stores in the New York City area from April 2012 to September 2014. * * *

The record reflects that claimant received no initial training or instruction on how to perform her duties. Claimant was not required to submit reports, attend meetings or regularly check in with Alterna. Claimant was not responsible for supplying the product to the Sephora stores, and the sales of the product were carried out by Sephora employees. Although Alterna provided claimant with a list of Sephora stores for her to visit, she was not required to visit all the stores on the list if she did not want to, and claimant testified that there were some stores that she never visited. Claimant was never supervised while at the stores or had her performance reviewed. Claimant was advised to work five days a week, but she set her own schedule and she could take time off, including a week at a time, without notifying Alterna. Matter of Jordan (Alterna Holdings Corp.–Commissioner of Labor), 2020 NY Slip Op 05266, Third Dept 10-1-20

 

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CLAIMANT DELIVERY DRIVER WAS AN EMPLOYEE OF A BUSINESS LOGISTICS COMPANY WHICH ARRANGED DELIVERIES FOR ITS CLIENTS; CLAIMANT WAS THEREFORE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant delivery driver was an employee of TN Couriers (TNC) entitled to unemployment insurance benefits:

TN Couriers LLC (hereinafter TNC) is a business logistics company that acts as a broker between delivery drivers and clients seeking to have products transported from one location to another. Claimant was retained by TNC to deliver auto parts for The Radiator Store, one of TNC’s clients. * * *

Although the daily delivery activities of claimant and other drivers were directed by TNC’s client, TNC retained control over other important aspects of the work. These included screening driver applicants, assigning drivers to clients, setting the rate of pay, partially reimbursing expenses, establishing performance standards, requiring valid licenses and insurance, and handling client complaints. In view of this, we find that substantial evidence supports the Board’s finding that TNC exercised a sufficient indicia of control over claimant to be deemed his employer and liable for additional contributions … . Matter of Murray (TN Couriers LLC–Commissioner of Labor), 2020 NY Slip Op 05269, Third Dept 10-1-20

 

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DESPITE THE ALLEGATION THAT THE DRIVER HAD LOGGED OFF THE UBER APP PRIOR TO THE PEDESTRIAN-VEHICLE ACCIDENT, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON THE VICARIOUS LIABILITY THEORY; THE UNEMPLOYMENT INSURANCE APPEAL BOARD’S FINDING THAT THE DRIVER WAS EMPLOYED BY UBER WAS NOT ENTITLED TO PRECLUSIVE EFFECT; ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this pedestrian-vehicle accident case, determined: (1) a ruling by the Unemployment Insurance Appeal Board finding that defendant driver was an employee of defendant Uber was not entitled collateral-estoppel effect pursuant to Labor Law 623( 2); (2) although the Labor Law 623(2) argument was not raised below, it raised a question of law which could not have been avoided below and therefore was considered on appeal; (3) the claim that defendant driver had logged off the Uber app at the time of the accident did not warrant summary judgment in favor of Uber on the vicarious liability theory:

An action may be considered to be within the scope of employment, thus rendering an employer vicariously liable for the conduct, when “the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment” … . Whether an employee was acting within the scope of his or her employment is generally a question of fact for the jury … .

Here, contrary to Uber’s contention, the averments [that the driver] had logged off of the Uber app 40 minutes before the accident were simply insufficient, without more, to eliminate all questions of fact as to whether Hussein was acting within the scope of his alleged employment with Uber at the time of the incident … . Uy v Hussein, 2020 NY Slip Op 05080, Second Dept 9-23-30

 

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CLAIMANT FINANCIAL ADVISOR HIRED TO SELL INSURANCE PRODUCTS WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant financial advisor who entered a written agreement to sell insurance products for Penn Mutual was an employee entitled to unemployment insurance benefits:

Claimant testified that he filled out an application with Penn Mutual, participated in an interview at which his commission rate and initial stipend were discussed, underwent a background check and thereafter signed a full-time soliciting agent’s contract … . Although claimant had to pay a monthly telephone fee, as well as any postage or photocopying costs that he incurred, he was provided a cubicle at Penn Mutual’s office, the use of the company’s receptionist and the ability to book a conference room, all at no charge to him. Claimant was given an in-house email address as well as letterhead and business cards bearing the agency’s name and address. Additionally, claimant was afforded the opportunity to qualify for health/dental insurance … and to participate in a matching 401(k) program; claimant also initially was covered under Penn Mutual’s errors and omissions policy. Claimant acknowledged that he was able to set his own schedule and to sell insurance products other than those offered by Penn Mutual; however, he also testified that he was required to meet with his managing director almost weekly, and that the managing director, in turn, scheduled training workshops that claimant was strongly encouraged to attend, reviewed and, if necessary, corrected the client applications submitted by claimant, directed claimant to develop a business plan and helped him do so, provided feedback on claimant’s performance, as set forth in the sales quarterly reports generated by Penn Mutual, and warned him that his contract might not be renewed if his performance was not satisfactory … . Matter of Thorndike (Penn Mut. Life Ins. Co.–Commissioner of Labor), 2020 NY Slip Op 03964, Third Dept 7-16-20

 

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ARBITRATOR’S DECISION FINDING CLAIMANT WAS PROPERLY DISCHARGED FOR MISCONDUCT ENTITLED TO COLLATERAL ESTOPPEL EFFECT IN THE UNEMPLOYMENT INSURANCE PROCEEDING (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined the arbitration decision pursuant to the collective bargaining agreement should have been given collateral estoppel effect by the Administrative Law Judge (ALJ) in the unemployment insurance proceeding. The arbitrator found that the claimant engaged in misconduct warranting discharge. The arbitrator’s decision was issued prior to the ALJ’s decision. The ALJ found claimant did not engage in misconduct and was entitled to unemployment insurance benefits:

Although “the Board is not bound by arbitration decisions regarding [a] claimant’s discharge issued subsequent to the time the Board rendered its decision”… , the Board was informed of the arbitration decision prior to its decision. As such, the factual findings of the arbitrator should have been accorded collateral estoppel effect in relation to the final unemployment insurance decision, so long as the parties had a full and fair opportunity to litigate the misconduct issue at the arbitration hearing … . The fact that the arbitration decision was issued after the conclusion of the unemployment insurance hearing does not preclude its consideration for collateral estoppel purposes, as “the final factfinder in the administrative process is the Board, not the ALJ” … . As the Board indicated that the arbitrator’s decision was not part of the record before it — despite that decision being the focus of, and a copy of it annexed to, the employer’s administrative appeal — the matter must be remitted in order for the employer to submit the arbitration decision into the record and to provide an opportunity for claimant and the employer to provide additional evidence and testimony regarding the nature of the arbitration hearing … . Matter of Bruce (Town of N. Hempstead–Commissioner of Labor), 2020 NY Slip Op 03705, Third Dept 7-2-20

 

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CRITERIA FOR DETERMINING WHETHER A CLAIMANT IS A SEPARATE BUSINESS ENTITY PURSUANT TO THE FAIR PLAY ACT CLARIFIED; MATTER REMITTED TO THE UNEMPLOYMENT INSURANCE APPEAL BOARD FOR A DECISION WHETHER CLAIMANT WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR USING THE CORRECT ANALYTICAL CRITERIA (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Devine, reversing the Unemployment Insurance Appeal Board and remitting the matter, clarified the meaning of the first criterion for determining whether claimant is an employee or an independent contractor pursuant to the so-called separate business entity test under the Fair Play Act. Here, the Board found that the claimant was an employee of Adelchi entitled to unemployment benefits, but the Third Department, agreeing with Adelchi’s argument, held the Board had not applied the proper criteria to its analysis:

The issue [is] whether claimant could be viewed as a separate business entity and, in that regard, Adelchi argues that the Board misconstrued the first criterion of the separate business entity test by demanding proof of a total lack of direction or control over a business entity (see Labor Law § 861-c [2] [a]). Adelchi contends that this criterion of the separate business entity test instead codifies the common-law rule that “[a]n employer-employee relationship exists when the evidence demonstrates that the employer exercises control over the results produced by claimant or the means used to achieve the results” … , which involves a fact-specific inquiry where “the relevant indicia of control will necessarily vary depending on the nature of the work” … . * * *

We … conclude that the first criterion in the separate business entity test does not require a contractor to show a total lack of direction or control over a business entity, but instead that their relationship as a whole did not show sufficient “control over the results produced or the means used to achieve the results” by the contractor to reflect an employer-employee relationship … . Although the factual findings already made by the Board would appear to permit the determination that Adelchi did not meet the first criterion under the proper analysis, we are constrained to reverse and remit so that the Board may answer that question in the first instance … . Matter of Tuerk (Adelchi Inc.–Commissioner of Labor), 2020 NY Slip Op 03441, Third Dept 6-18-20

 

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