The Third Department determined a mechanic was an employee of Guardi, who bought used cars, repaired and sold them:

… [A]lthough Guardi did not advertise for claimant's services, claimant filled out paperwork that he characterized as an application for employment prior to working for Guardi. Upon being hired, Guardi offered and established claimant's rate of pay at $10 an hour. Claimant testified that after pricing the cost of repairs for a used vehicle and discussing those repairs with Guardi, Guardi would instruct him whether to make the repairs and, at times, would also make repair suggestions to claimant. Guardi provided claimant with a garage to perform the repairs that included certain equipment, such as a vehicle lift, tire-changing machine and a compressor … . Guardi also disposed of old motor oil and used tires and maintained the equipment located in the garage. While claimant owned his own tools, he kept those tools at the garage, and he did not maintain his own auto-repair business or repair vehicles for any other employer. Aside from repairing vehicles, claimant also assisted Guardi with customer service and, on occasion, sold a used vehicle, for which he would receive a commission of $50. In addition to issuing claimant a weekly paycheck, claimant was expected to work the same hours as other employees at Used Auto and report for work on time each day. Claimant was required to contact Guardi if he was sick or unable to report to work on a given day, was required to obtain permission to take time off from work and record the start and end of his shifts and meals on a timeclock … . Matter of DeVaul (Guardi — Commissioner of Labor), 2016 NY Slip Op 03233, 3rd Dept 4-28-16

The Third Department determined a nurse who worked for Summit Health, which screens employees of corporate clients, was an employee entitled to unemployment insurance benefits:

Summit posted openings for medical examiners on its website, interviewed applicants and screened their education, license credentials and experience to ensure their qualifications and ability to perform the required medical services. Summit scheduled the clinics with its clients, who determined what services were needed; Summit then posted the clinic dates, enabling examiners to sign up to work based upon their availability, and they were paid a set hourly rate. Summit provided all of the equipment and supplies for the clinics and reimbursed the examiners for certain travel and other expenses. If examiners could not work as scheduled, they reported to Summit, which looked for a replacement. Summit solicited claimant to work for it after reviewing her credentials posted on a job website. Claimant worked as a health examiner and a registrar as well as a lead examiner responsible for oversight of the clinic, bringing and returning supplies and equipment provided by Summit, submitting patient consent forms to Summit, resolving problems and reporting back to Summit after the clinic was completed. Examiners were required to sign contracts designating them as independent contractors, which obligated them to comply with industry best practices and provided training available for that purpose; they were required to wear a Summit identification badge and to abide by a dress code at clinics, among other provisions.

Given the foregoing, we find that there was substantial evidence to support the Board's determination that Summit retained sufficient overall control over the work performed by claimant to establish that she was an employee of Summit … . Matter of Armbruster (Summit Health, Inc. — Commissioner of Labor), 2016 NY Slip Op 03231, 3rd Dept 4-28-16

The Third Department determined a licensed radiation therapist (RT) was an employee of La Cruz Radiation Consultants and was therefore entitled to unemployment insurance benefits, despite the use of the term “independent contractor” in the relevant agreement:

La Cruz screened the RTs' credentials and assigned them to its clients to provide radiation therapy services, directing them where and when to report. La Cruz paid the RTs a set rate of $50 per hour, did not take payroll deductions from their salary and issued 1099 tax forms; La Cruz required that the RTs submit to it biweekly time sheets signed by the client's supervisor, and La Cruz, in turn, billed the clients an increased price for the RTs' services and collected all payments from the client. Once assigned, the client determined the RTs' schedule to meet their staffing needs and whether to continue to use their services or seek a different referral from La Cruz, and the client's chief radiology therapist or physician oversaw their work. Under the agreement that designated the RTs as independent contractors, claimant was required to call La Cruz and the client if she could not be at work at the scheduled time, questions regarding payment for services were directed to La Cruz and the RTs were prohibited from working directly for the assigned clients or La Cruz competitors. La Cruz would find replacements for the RTs if they could not work the schedule set by the client for any reason. Claimant testified that, on the day that the client informed her that her services no longer were needed, she was under consideration to be hired as an employee of the client and, because the client had not given advance notice of her discharge, La Cruz reimbursed her for expenses for her travel to the client. Notwithstanding proof in the record that might support a contrary conclusion, we find that the foregoing constitutes substantial evidence to support the Board's decisions that La Cruz, while not directly supervising claimant's daily RT activities for the client, retained sufficient overall control over the work performed by claimant and those similarly situated to establish an employer-employee relationship… . Matter of Ryan (La Cruz Radiation Consultants, Inc.–Commissioner of Labor), 2016 NY Slip Op 03038, 3rd Dept 4-21-16

The Third Department determined that co-workers' egregious, lewd and harassing behavior, combined with the employer's inadequate response, provided good cause for claimant's leaving employment:

 

“Whether a claimant has left employment for good cause so as to qualify for unemployment insurance benefits is a factual issue to be resolved by the Board and its determination will be upheld if supported by substantial evidence” … . The Board was free to, and did, credit claimant's testimony that she did not feel safe or comfortable with continuing her employment after the egregious behavior of her coworker. The record evidence also reflects that claimant had previously reported harassment by another male coworker, who was reprimanded by the employer. In view of this pattern of sexual harassment and the employer's inadequate offer to transfer claimant to a nearby building — where she would still be forced to interact with the service center — substantial evidence supports the Board's determination that claimant left her employment for good cause … . Matter of Labbate (Robert Green Auto & Truck, Inc.–Commissioner of Labor), 2016 NY Slip Op 02898, 3rd Dept 4-14-16

The Third Department determined claimant was entitled to unemployment insurance benefits because attempted in good faith to comply with the residency requirement for her position with the city and therefore did not provoke her discharge:

“Provoked discharge . . . is a narrowly drawn legal fiction designed to apply where an employee voluntarily engages in conduct which transgresses a legitimate known obligation and leaves the employer no choice but to discharge him [or her]” … . “Whether [a] claimant's actions constituted a voluntary leaving of employment without good cause by provoking his [or her] discharge is a factual determination for the [B]oard” … . Here, claimant's testimony established that she began living with her cousin in an apartment in New York City in an attempt to comply with the employer's residency requirements, as well as to accommodate her school schedule. Although claimant also spent time with her husband in an apartment outside New York City, the employer acknowledged that an individual could maintain more than one residence, even if one was outside New York City, and still be in compliance with the residency requirement. Claimant pays her cousin money to live in the apartment and to help offset expenses, and she receives mail at that address, including bank account and credit card statements. Claimant also pays New York City income taxes. Moreover, claimant testified that, because she did not fully understand the residency requirement, she inquired to both her supervisor and the employer's personnel department as to whether she was considered to be in compliance with the necessary requirement; however, those inquiries went unanswered. Under these circumstances, substantial evidence supports the Board's finding that claimant did not voluntarily engage in conduct that transgressed the employer's mandate so as to find that she provoked her discharge … . Matter of Rosseychuk (City of New York–Commissioner of Labor), 2016 NY Slip Op 01885, 3rd Dept 3-17-16

UNEMPLOYMENT INSURANCE (CLAIMANT DID NOT PROVOKE HER DISCHARGE)