The Third Department determined a counselor (called a “specialist”) who worked for Crisis Care Network (CCN), a provider of crisis intervention services to employers which have experienced tragedies, was an employee entitled to unemployment insurance benefits. CCN contracts with an employer's designated employee assistance program (EAP):

… [A]fter contracting with an EAP, CCN recruits specialists from its self-created database and screens them to ensure that they have the qualifications required by the EAP. If a specialist has the proper qualifications, CCN offers that individual the assignment at a set hourly rate of pay. If accepted, as in claimant's case, the parties enter into a written agreement governing that particular assignment and CCN informs the specialist, based upon instructions from the EAP, of the date, time and location that the specialist is to report. While on assignment, the specialist must represent that he or she is from the EAP and is not permitted to solicit clients, although there is no prohibition against a specialist otherwise engaging in private practice or working for CCN's competitors. Except in very limited circumstances, CCN pays specialists within 45 days after services are rendered upon the submission of the proper paper work by the specialist regardless of whether it has yet been paid by the EAP, and CCN also provides reimbursement for travel expenses. CCN also provides voluntary training. If a specialist is unable to report to an assignment, he or she must notify CCN and cannot select a replacement. Furthermore, CCN provides specialists with informational handouts to be used on assignments, as well as professional guidelines that are based upon the expectations of the EAP, and the specialists must provide reports summarizing the counseling sessions per the requirements of the EAP. Matter of Torres (Crisis Care Network, Inc.–Commissioner of Labor), 2016 NY Slip Op 01710, 3rd Dept 3-10-16

UNEMPLOYMENT INSURANCE (CRISIS COUNSELOR WAS AN EMPLOYEE)

The Third Department determined claimant, a fitness instructor at a senior living facility (Classic Riverdale), was not an employee, and was not, therefore, entitled to unemployment insurance benefits:

 

After learning from a client that Classic Riverdale was seeking an exercise instructor, claimant contacted the facility’s executive director and offered his services. Claimant and the director negotiated a flat fee for each class and set a schedule for the classes. Classic Riverdale did not provide any training or require claimant to wear a uniform. He was not required to punch in or out on the employee time clock, did not use the employee facilities, such as the locker room or cafeteria, and was not invited to attend employee meetings. Claimant alone determined the content of the classes and method of instruction … . There was no limitation placed on the amount of time that claimant could miss from work and his attendance was not monitored. He was never given a performance evaluation and was not subject to any form of discipline … . Claimant also maintained his own liability insurance … . Notably, in addition to providing classes at the facility, claimant also provided services to other clients and solicited the facility’s residents for private, one-on-one classes without any objection from Classic Riverdale … . Matter of Cohen (Classic Riverdale, Inc.–Commissioner of Labor), 2016 NY Slip Op 01222, 3rd Dept 2-18-16

 

UNEMPLOYMENT INSURANCE (FITNESS INSTRUCTOR NOT AN EMPLOYEE)

The Third Department determined a business, Eray Inc., which matched students with music teachers, was required to pay unemployment insurance contributions. The court affirmed the Unemployment Insurance Appeal Board’s finding that the musicians were employees, not independent contractors:

 

… [W]here the provision of professional services is involved, the relevant inquiry becomes “whether the purported employer retains overall control of important aspects of the services performed” … . The “overall control” test “has been applied to musicians who ‘do not easily lend themselves to direct supervision or control'” … .

During the period in question, Eray matched students with music instructors based upon its assessment of the students’ needs and the instructors’ qualifications, scheduled the lessons and followed up with both the instructors and the students to ensure that they were matched appropriately. While Eray did not dictate the curriculum or the method of instruction, it rented and provided the space in which the teachers almost exclusively conducted their lessons, equipped the space with chairs, music stands, a piano, a drum set and a collection of music books that could be used during those lessons, billed the students, paid the teachers an agreed-upon portion of the fee collected from each student and fielded student complaints. In addition, Eray required the teachers to submit any scheduling changes to it for its approval and notify it if they were going to be late to a lesson or send a substitute in their stead and, when requested, Eray would arrange for substitute instructors. Furthermore, although Eray maintained that the agreements were not enforced, several of the instructors signed agreements that, among other things, prohibited them from contacting students directly or providing private lessons to their students in the two years following their resignation. Matter of Eray Inc. (Commissioner of Labor), 2016 NY Slip Op 01024, 3rd Dept 2-11-16

 

UNEMPLOYMENT INSURANCE (MUSICIAN/MUSIC TEACHERS ARE EMPLOYEES)

The Third Department determined claimant was an employee of RMC, an educational research firm which contracted with the NYC Department of Education. Pursuant to a “consultancy agreement,” claimant was hired to evaluate teachers who had been given unsatisfactory ratings:

 

… [C]laimant was required as part of RMC’s hiring process to submit an application, undergo an interview and provide references. Once hired and after signing the consultant agreement, he received six hours of training, was paid a hourly rate set by RMC, was expected to work three to four hours per week for a total of 36 weeks during the 10-week assignment and submitted a voucher provided by RMC on the 15th of each month to receive payment for hours worked. Notably, claimant was paid for services rendered regardless of whether RMC received payment from the client. Moreover, RMC’s name appeared at the top of the documents that claimant was required to prepare and it determined their format. Furthermore, during the course of his assignment, claimant interacted with RMC’s project director who reviewed his observation reports for comprehensiveness, clarity, spelling and grammar. Any complaints about claimant’s performance or that of the other peer observers were directed to RMC, and it arranged for a replacement if an assignment could not be completed. Matter of Strauss (Commissioner of Labor), 2016 NY Slip Op 00561, 3rd Dept 1-28-16

 

UNEMPLOYMENT INSURANCE (CONSULTED HIRED TO EVALUATE TEACHERS WAS AN EMPLOYEE)

The Third Department determined claimant, a Cantonese and Mandarin interpreter, was an employee of Language Services Associates, Inc. (LSA), not an independent contractor:

 

The record establishes that LSA advertises for interpreters, like claimant, to provide translation services to its clients. Interpreters are screened for their experience and, if approved by LSA following an interview, they are placed on a roster for future assignments. Clients contact LSA directly to request the services of an interpreter, at which point LSA decides who to call from its pool of interpreters. Although interpreters are free to decline assignments, there was testimony that they are not permitted to substitute someone else in their place once an assignment is accepted. LSA provides interpreters with the requisite information for accepted assignments, and interpreters are advised by LSA, not the client, of any changes in assignments. Moreover, interpreters are prohibited from accepting future assignments from a client without obtaining LSA’s permission and are subject to penalties for arriving late or failing to appear for an assignment without providing LSA with notice and a reasonable explanation. LSA requires interpreters to submit invoices detailing the hours worked for each in-person interpretation assignment, pays interpreters directly and reimburses them for transportation expenses associated with assignments.

The record further reflects that LSA records and monitors telephone interpretation services to ensure that interpreters are adequately performing their services. To that end, LSA assigned interpreters, including claimant, to evaluate other interpreters’ telephone services. Claimant herself received feedback and instructions from LSA on how to improve her services, and she conducted, at LSA’s request, numerous evaluations of other interpreters’ services. Based upon these evaluations, interpreters are given a rating that could affect whether an interpreter receives future assignments from LSA. Matter of Soo Tsui (Commissioner of Labor), 2016 NY Slip Op 00229, 3rd Dept 1-14-16

 

UNEMPLOYMENT INSURANCE (INTERPRETER WAS AN EMPLOYEE)/INTERPRETERS (UNEMPLOYEMENT INSURANCE, INTERPRETERS WERE EMPLOYEES)