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CLAIMANT WAS LAID OFF AFTER 15 YEARS BUT CONTINUED TO DO SIMILAR WORK FOR THE EMPLOYER; AFTER HE WAS LAID OFF HE WAS NO LONGER AN EMPLOYEE AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined a photograph researcher who continued to work for a a publisher, Rosen Publishing, after he was laid off after 15 years, was not an employee and therefore was not entitled to unemployment insurance benefits:

… [W]e conclude that … the Board’s finding of an employer-employee relationship is not supported by substantial evidence. After [claimant was laid off], when a photograph research project became available, Rosen Publishing would email claimant the project’s title, the number of specs needed and the deadline for the project, which project he could accept or reject. If claimant accepted the project, an additional email with further information regarding the book’s manuscript and further detail about the project was provided. Other than the deadline for the project, claimant was not required to work any specific hours, was not required to report to Rosen Publishing at any time during the course of the project, received no fringe benefits and could have others perform the research. Claimant was not prohibited from working for competitors, there was no written contract and he was not reimbursed for any expenses, nor was he provided with any equipment to perform his research. Matter of Levick (Rosen Publ. Group Inc.–Commissioner of Labor), 2021 NY Slip Op 06890, Third Dept 12-9-21

 

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CLAIMANT ACTOR WAS NOT AN EMPLOYEE OF THE SCHOOL OF VISUAL ARTS AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant actor was not an employee of the School of Visual Arts (SVA). Claimant was paid $10 an hour for a couple of acting jobs at SVA:

Claimant, a professional actor who maintained his own website and IMDb listing to showcase his acting experience and credentials, was referred for the two assignments at issue by an SVA faculty member. Claimant readily acknowledged that he only provided services for SVA once or twice a year, that he was free to provide similar services for other entities, that he could decline to participate in SVA projects for any reason, that he signed a written invoice proclaiming his status as an independent contractor and that no deductions were taken from his pay. Although claimant insisted, contrary to the testimony offered by SVA’s representative, that the scripts provided to him were not authored — and the scenes in which he appeared were not directed — by students, a closer reading of claimant’s testimony nonetheless reveals that the “direction” that he purportedly received from SVA faculty members was minimal and for the purpose of teaching students how to direct. In short, despite other possible indicia of an employment relationship, the record as a whole does not demonstrate that SVA exercised overall control over important aspects of the professional services offered by claimant … . Matter of Ewens (School of Visual Arts, LLC–Commissioner of Labor), 2021 NY Slip Op 06894, Third Dept 12-9-21

 

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CLAIMANT’S UNEMPLOYMENT INSURANCE BENEFITS PROPERLY REDUCED TO ZERO BECAUSE CLAIMANT’S PENSION EXCEEDED THE AMOUNT OF THE BENEFITS (THIRD DEPT).

The Third Department determined the amount of unemployment insurance benefits for claimant, a professional violinist, was properly reduced to zero based upon claimant’s pension:

Consistent with the provisions of Labor Law § 600 (1) (a), the benefit rate of a claimant who is receiving a governmental or other pension “shall be reduced . . . if such [pension] payment is made under a plan maintained or contributed to by [the] base period employer and . . . the claimant’s employment with, or remuneration from, such employer after the beginning of the base period . . . increased the amount of . . . such pension” … . “Under the plain language of the statute, the specified reduction shall be made where a claimant’s base period employer made a pension fund contribution during the base period which increased the claimant’s pension” … .

… [T]he record establishes that, during the relevant base period, claimant received a pension benefit that, in turn, was fully funded by the contributing employers. The record further makes clear — and claimant does not dispute — that the work performed by her during the base period and the corresponding contributions made by her employers increased the monetary value of her pension. Under these circumstances, and given that the prorated weekly amount of claimant’s pension benefit exceeded her weekly unemployment insurance benefit (see Labor Law § 600 [1] [b]), the statutory reduction was triggered, and claimant’s unemployment insurance benefit rate was properly reduced to zero … . Matter of Morganstern (Commissioner of Labor), 2021 NY Slip Op 06416, Third Dept 11-18-21

 

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CLAIMANT, A MEMBER OF THE CITY BOARD OF ASSESSMENT AND REVIEW (BAR) HIRED TO REVIEW THE FAIRNESS OF PROPERTY TAX ASSESSMENTS, WAS NOT AN EMPLOYEE OF THE CITY AND THEREFORE WAS NOT ELIBIBLE FOR UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant, a City Board of Assessment and Review (BAR) member, was not an employee of the city and therefore was not entitled to unemployment insurance benefits. BAR members determine the fairness of property tax assessments:

… [C]laimant acknowledged … that neither the City Assessor nor any other City entity has control over BAR’s review and determination of grievances or the means by which such determinations are reached (see RPTL 523, 525, 526). Rather, the City Assessor merely provides BAR with the necessary property information, and once BAR reaches its determination, the role of the City Assessor is limited to adjusting the tentative assessment roll — as necessary — before the assessment roll is finalized (see RPTL 526 [5]). Notably, although the City Assessor could return a determination to BAR to correct “technical” errors, the City Assessor could not alter or modify the determination reached by BAR (see RPTL 526 [5]). Finally, the record reflects that the City Assessor could neither sanction nor terminate a member of BAR.

Based upon the foregoing, the Board’s finding of an employment relationship is not supported by substantial evidence. Matter of McLaughlin (City of Albany–Commissioner of Labor), 2021 NY Slip Op 06119, Third Dept 11-10-21

 

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CLAIMANT WAS NOT AN EMPLOYEE OF A COMPANY RUNNING A WEBSITE AND APP TO CONNECT PET OWNERS WITH PET SITTERS, WALKERS AND BOARDERS, ETC. (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board (“Board”), determined claimant was not an employee of Rover, a website which connects pet owners to pet sitters, walkers, boarders, etc.:

Rover only exercises control over the platform that a provider uses to find client pet owners and not any part of the job itself … , and this type of incidental control over the provider’s services is insufficient to establish an employer-employee relationship … . More analogous to fitness instructors and odd-job taskers, and, in contrast to Uber drivers or Postmates couriers, providers are individually selected by their client pet owners and “have the ability to create a following or generate their own [repeat] customer base” … . As Rover does not exercise any control over the manner in which the providers perform their services, the means used or results produced, substantial evidence does not support the Board’s determination that Rover exercised sufficient direction, supervision and control over the providers to demonstrate an employment relationship … . Matter of Hawkins (A Place for Rover Inc.–Commissioner of Labor), 2021 NY Slip Op 05748, Third Dept 10-21-21​

 

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THE PURCHASE OF A CHECK CASHING BUSINESS DID NOT TRANSFER THE UNEMPLOYMENT INSURANCE OBLIGATIONS OF THE SELLER TO THE PURCHASER; THE LABOR LAW 581 CRITERIA FOR THE TRANSFER OF UNEMPLOYMENT INSURANCE OBLIGATIONS WERE NOT MET (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined the unemployment insurance obligations of PTL Check Cashing Corp. were not transferred to PLS Check Cashiers of New York Inc. when PLS entered an asset purchase agreement with PTL in order to acquire PTL’s license to operate at PTL’s former location in the Bronx:

“Labor Law § 581 establishes an experience-rating system that allows for variations in the unemployment insurance contribution rates from the standard rate of qualified employers in certain situations” … . Under the statute, when a business is transferred either whole or in part from one employer to another, the transferee shall take over and continue the unemployment insurance experience account of the transferor … . A transfer, however, will not be deemed to have occurred if (1) the transferee has not assumed any of the transferor’s obligations, (2) the transferee has not acquired any of the transferor’s goodwill, (3) the transferee has not continued or resumed the transferor’s business either in the same establishment or elsewhere, and (4) the transferee has not employed substantially the same employees as those of the transferor … . …

It is undisputed that PLS did not assume any of PTL’s financial obligations and did not hire any of its employees. Moreover, while PLS operated from the same Bronx location, its business included a variety of financial services and was not limited to check cashing, which was PTL’s sole business. Significantly, the ability to operate from the Bronx location was necessary in order for PLS to obtain a license from the Department of Financial Services given the geographic limitations applicable to businesses that offer check cashing services. Although the asset purchase agreement listed other property included in the sale, PLS’s president testified that the tangible assets were disposed of and the only asset that was of value was the opportunity to acquire the license to operate from the Bronx location. Notwithstanding the fact that goodwill was generally referenced as property included in the sale, PLS did not use PTL’s brand, logo or phone number and had its own customer base, negating any expectation that it would be patronized by PTL’s customers. In view of the foregoing, substantial evidence does not support the Board’s finding that a transfer of business occurred under Labor Law § 581 (4) such that PLS acquired the unemployment insurance experience rating of PTL … . Matter of PLS Check Cashiers of N.Y. Inc. (Commissioner of Labor), 2021 NY Slip Op 05142, Third Dept 9-30-29

 

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CLAIMANT, WHO WAS NOT EMPLOYED AT THE TIME COVID-PANDEMIC-RELATED UNEMPLOYMENT BENEFITS BECAME AVAILABLE, WAS NOT ELIGIBLE TO RECEIVE THE COVID-PANDEMIC BENEFITS (THIRD DEPT).

The Third Department determined claimant was not entitled to COVID-pandemic-related unemployment insurance benefits because she was not employed at the time the benefits became available:

Claimant was ineligible for regular unemployment insurance benefits given her failure to work during the relevant period and contended that she was unable and unavailable to work due to one of the qualifying factors for pandemic unemployment assistance, namely, that she was “unable to reach [her] place of employment because [she was] advised by a health care provider to self-quarantine due to concerns related to COVID-19” (15 USC § 9021 [a] [3] [A] [ii] [I] [ff]). … The statutory directive that an applicant be “unable to reach the place of employment” presupposes that he or she has a place of employment to reach, however, removing from its scope individuals such as claimant who were not working or scheduled to start working at the time they were directed to self-quarantine (15 USC § 9021 [a] [3] [A] [ii] [I] [ff]). The Board read the statutory language in that manner and in accord with guidance from the United States Department of Labor — the federal agency tasked with providing operating instructions for the joint federal-state pandemic unemployment insurance program (see 15 USC § 9032 [b]) and from which we take judicial notice — that an individual “must have an attachment to the labor market and must have experienced a loss of wages and hours or [be] unable to start employment following a bona fide job offer” in order to obtain pandemic unemployment assistance … . Thus, as “‘the federal agency expressly concurs in the state’s interpretation of the statute, and the interpretation is a permissible construction of the statute,’ the interpretation is entitled to deference,” and it follows that substantial evidence supports the Board’s finding that claimant was not entitled to pandemic unemployment assistance … . Matter of Mangiero (Commissioner of Labor), 2021 NY Slip Op 05062, Third Dept 9-23-21

 

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CLAIMANT, AN AGENT LICENSED TO SELL LIFE INSURANCE, ANNUITIES AND OTHER INVESTMENT PRODUCTS, WAS NOT AN EMPLOYEE OF THE BROKER-DEALER AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT). ​

The Third Department determined claimant agent was not an employee of broker-dealer AXA and therefore was not entitled to Unemployment Insurance benefits:

AXA Advisors LLC is a broker-dealer registered to sell life insurance policies and annuities, stocks, mutual funds and other investment products. Claimant began working for AXA under a three-year “training allowance” agreement in 1993. After that agreement terminated in 1996, claimant entered into a new agreement as a licensed agent, and he continued working in that capacity until AXA terminated the agreement in 2015. * * *

The record reflects that, under the 1996 agreement, claimant did not have a set work schedule or work location, he was not assigned a sales territory and did not have to turn in any reports. Claimant was not supervised, could work from home and could use his own computer. Claimant had to pay for the cost of his liability insurance and was not paid for any expenses. AXA required reimbursement from claimant for the cost of business cards and stationery and claimant had to pay for the use of AXA’s clerical staff and office space. Claimant was responsible for developing his own client base and, although AXA would sometimes provide a sales lead, claimant testified that he did not have to pursue it. Claimant determined what products best suited his clients’ needs and he could sell the products of AXA’s competitors. AXA did provide claimant with promotional materials, and claimant was paid by commission, with the commission rate set by AXA or whichever company offered the product that he sold to the client. Matter of Lee (AXA Advisors LLC–Commissioner of Labor), 2021 NY Slip Op 04518, Third Dept 7-22-21

 

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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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