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INTERPRETERS ARE EMPLOYEES.

The Third Department determined interpreters were employees of CP Language Institute, Inc (CPLI):

The record establishes that CPLI advertises for language service interpreters, like claimant, to provide translation services for its clients. An interpreter is required to submit a resume and, after being interviewed by CPLI and receiving a sufficient score on a written language proficiency test, CPLI adds the interpreter to its roster. CPLI maintains a file of each interpreter’s qualifications that includes a resume, reference letters, proficiency exam and availability. CPLI notifies an interpreter of assignments, which can be accepted or declined by the interpreter. Once an assignment is accepted, however, the interpreter is required to notify CPLI if he or she becomes unavailable and CPLI, not the interpreter, provides a substitute if needed.

Furthermore, claimant signed an agreement with CPLI that included guidelines regarding punctuality, attire, performance and conduct when providing services to CPLI clients. Although claimant could work for other agencies that provided translation services, she was subject to a 12-month noncompete clause following termination of her relationship with CPLI. In addition, claimant was provided with a picture identification badge with CPLI’s name. Claimant was paid by CPLI following the submission of time sheets, regardless of whether CPLI was paid by the client. Any complaints from a client were handled by CPLI. Matter of Karapetyan (Commissioner of Labor), 2015 NY Slip Op 09324, 3rd Dept 12-17-15

MONTHLY COMPILATION INDEX ENTRIES:

UNEMPLOYMENT INSURANCE (INTERPRETERS ARE EMPLLOYEES)/INTERPRETERS (UNEMPLOYMENT INSURANCE, EMPLOYEES NOT INDEPENDENT CONTRACTORS)

IT CONSULTANT WAS EMPLOYEE.

The Third Department determined claimant, who had her own IT consultant business, was an employee of Geneva, despite the contractual “independent contractor” designation. The court, however, sent the matter back for a determination whether claimant was totally unemployed. With respect to the employee status, the court wrote:

The evidence at the hearing demonstrated that claimant, who runs her own consulting business, Jessica Consultant LLC, responded to an advertisement placed by Geneva that listed the job requirements and necessary IT background for a position with its client; Geneva screened her and forwarded her credentials to its client, which interviewed and approved of claimant. Geneva required that claimant sign a contract that designated her as the consultant assigned to perform the IT services for the client, and labeled her as an independent contractor. Geneva employed approximately 35 people as consultants who received benefits and designated another 15 consultants as independent contractors who were required to be in business for themselves and to obtain, among other things, their own liability insurance, but Geneva’s chief financial officer conceded that both groups provided the “same services” and had the “same skills.” Geneva contracted with its client to provide claimant’s services and charged the client for those services, and Geneva paid claimant a negotiated daily rate. Claimant worked a full-time schedule set by the client and performed services in the client’s office where she was provided a desk, computer, supplies and support staff. Claimant reported regularly to the client’s manager, who instructed her on the client’s needs and expectations, trained her on the client’s systems, gave her assignments, set her deadlines and approved her time sheets, which were submitted to Geneva for payment. Claimant could not provide substitutes or refuse assigned work and needed the client’s approval to take time off from work. Matter of Thomas (Geneva Consulting Group–Commissioner of Labor), 2015 NY Slip Op 08889, 3rd Dept 12-3-15

UNEMPLOYMENT INSURANCE (IT CONSULTANT)

MEDICAL COURIERS WERE EMPLOYEES.

The Third Department determined couriers were employees of Dynamex entitled to unemployment insurance benefits:

… [T]he record contains evidence that claimants were required to wear uniforms identifying themselves as being contracted through Dynamex. Claimants were also issued Dynamex identification cards. Further, claimants were bound by a one-year noncompetition restriction following their termination with Dynamex. Claimants would advise Dynamex when they were available to work and Dynamex would then assign pickups and deliveries to them within their general geographic location. Claimants were required to complete their assignments the same day and provide Dynamex with proof of delivery. Dynamex handled customer complaints and would bill its customers and pay claimants weekly, based upon commissions for the services performed, even if the customer did not pay Dynamex. Matter of Voisin (Dynamex Operations E., Inc.–Commissioner of Labor), 2015 NY Slip Op 08881, 3rd Dept 12-3-15

UNEMPLOYMENT INSURANCE (MEDICAL COURIERS)

SPECIAL EDUCATION PROVIDER NOT AN EMPLOYEE.

The Third Department determined claimant, a provider of special education services, was not an employee of Mid Island, which was under contract with the New York City Department of Education (NYCDOE) to provide such services:

Although Mid Island would contact claimant to let her know whether a student in her geographic area needed special education services, Mid Island did not assign students to claimant; she was free to accept or reject a referral from Mid Island … . Mid Island also did not control the scheduling of services, which would be arranged between the student’s parents and claimant … , and did not dictate the type, location or manner of delivery of the services that were to be provided, which would be specified in the student’s individualized education program … . Once services were provided, any parental complaints were handled by NYCDOE, not Mid Island, and if a teacher needed to be replaced, NYCDOE would direct Mid Island to do so. Mid Island never performed any type of performance evaluation of claimant … . The reporting requirements governing submission of session and progress notes also came from NYCDOE, and such notes were neither required nor reviewed by Mid Island … .

Claimant was required under the parties’ agreement to maintain her own malpractice insurance and cover her own expenses, and she was not provided with any supplies or benefits … . The rate of payment was established by NYCDOE, and, if Mid Island did not receive payment from NYCDOE, it was not obliged to remit payment to claimant for services provided to a student… . Matter of Wright (Mid Is. Therapy Assoc. LLC–Commissioner of Labor), 2015 NY Slip Op 08897, 3rd Dept 12-3-15

UNEMPLOYMENT INSURANCE (SPECIAL EDUCATION PROVIDER)

Copy Writer and Editor Was an Employee

The Third Department determined claimant copy writer and editor was an employee of Fox Mobile Distribution and was therefore entitled to unemployment insurance benefits:

Here, the record contains substantial evidence that Fox exercised the requisite control over claimant’s work product to establish her status as its employee. Claimant was paid at a set hourly wage, entitled to reimbursement for approved travel and expenses and provided a cellular phone to test Fox’s products … . The project team leaders — who were employees — educated her regarding the product, delegated specific writing or editing tasks, provided direction and set completion deadlines. Claimant regularly reviewed her work progress with the project manager, received ongoing feedback and made necessary revisions and adjustments … . She was also required to come to Fox’s office for meetings and reviews of her copy. The fact that the parties’ agreement designated claimant as a contractor is not dispositive … . Matter of Eckert (Fox Mobile Distrib. LLC–Commissioner of Labor), 2015 NY Slip Op 08489, 3rd Dept 11-19-15

 

Massage Therapist Was Employee

The Third Department determined claimant massage therapist was an employee of Addison Street Spa and was therefore entitled to unemployment insurance benefits:

Here, there is evidence in the record that Addison set the prices for the massages and the percentage of which claimant was paid, scheduled its clients pursuant to claimant’s weekly schedule, collected the fees from the clients and fielded any complaints. Addison required claimant to sign an agreement that she would not solicit, divert or take away any of Addison’s clients during the term of the agreement and for one year after claimant stopped providing massages at the spa. Addison provided the room, equipment and supplies and required claimant to arrive 30 minutes before the scheduled massage time and to maintain professional attire… . Matter of Fatone (Addison St. Spa, LLC–Commissioner of Labor), 2015 NY Slip Op 08488, 3rd Dept 11-19-15

 

Musician Was Employee

The Third Department determined claimant, a musician who accompanied the Young People’s Chorus of New York (YPCNY) was an employee of YPCNY and therefore was entitled to unemployment benefits:

Here, YPCNY provided claimant with the date, time and place for the concerts, the rehearsal times and the music to be performed. Claimant was paid a set rate of between $250 and $600 per concert and YPCNY paid his travel expenses. YPCNY would inform claimant of the required dress code for the concerts and claimant was required to inform YPCNY if he was going to be late or absent. YPCNY’s president was the musical conductor at the concerts and was responsible for handling complaints about the musicians. While there is other evidence in the record that would support a different result, the foregoing constitutes substantial evidence supporting the Board’s decision that YPCNY exercised sufficient control over the services provided by the musicians to establish an employment relationship … . Matter of North (Young People’s Chorus of N.Y.–Commissioner of Labor), 2015 NY Slip Op 08486, 3rd Dept 11-19-15

 

Pyrotechnician Was Not an Employee

The Third Department determined a pyrotechnician who worked for a company (PEI) which puts on fireworks displays was not an employee and was not, therefore, entitled to unemployment insurance benefits:

Here, claimant did not submit a resume or employment application and did not undergo a job interview, but was retained by PEI through his contact with a lead technician and worked on PEI’s displays intermittently over a five-year period. PEI relied on lead technicians, who were independent contractors, to oversee the production of the fireworks displays and they directed and supervised the pyrotechnicians involved in a particular project. Claimant’s duties as a pyrotechnician included picking up the fireworks supplies, setting up the displays, igniting the fireworks, breaking down the displays and cleaning up. PEI did not attend the fireworks displays, but limited its activities to securing the sponsors, designing the shows and providing the fireworks and other necessary equipment. The lead technicians negotiated the price for production services with PEI and submitted invoices instructing PEI how much to pay the pyrotechnicans involved. PEI solicited assignments one at a time and the lead technicians and pyrotechnicians were free to refuse assignments and work for competitors. Although PEI offered to provide training, it was training that was required by regulatory agencies and could be obtained elsewhere. Furthermore, the lead technicians and pyrotechnicans did not wear clothing or other attire identifying them with PEI, but instead wore T-shirts designating them as “staff” that were required by law. Under the circumstances presented, the indicia of control necessary to establish the existence of an employment relationship between PEI and the pyrotechnicans, like claimant, is clearly lacking .. . .  Matter of Franco (Pyro Eng’g Inc.–Commissioner of Labor), 2015 NY Slip Op 08483, 3rd Dept 11-19-15

 

Reporter Was Employee

The Third Department determined claimant, a reporter who worked for a company which produces news reports and shows for television (Everest), was an employee entitled to unemployment insurance benefits:

The record establishes that claimant routinely worked Tuesday through Thursday each week. On these days, Everest would inform claimant in the morning of what her reporting assignment was for that day and whether any story idea she suggested had been approved by Everest. If she refused to perform any of the approved story ideas, she would not work or be paid on that day. Claimant was then required to submit her finished report by a specific time … . Everest provided claimant with support staff to assist in her work, including a videographer, and provided her with camera equipment, access to its electronic news database and graphics and background videos, and a computer for editing purposes … . Everett also reviewed and edited claimant’s work product and could direct her to make revisions or to add graphics to her video reports … . Claimant was also free to use her own video camera operator, but Everest reimbursed claimant for that cost … and retained ownership of claimant’s stories and reports. Although there was also evidence in the record that could have supported a contrary conclusion, the foregoing amply furnished indicia of control over claimant’s activities sufficient to support the Board’s conclusion of an employer-employee relationship… . Matter of Redwoodturral (Everest Prod. Corp.–Commissioner of Labor, 2015 NY Slip Op 08482, 3rd Dept 11-19-15

 

Truck Driver Was Employee

The Third Department determined claimant truck driver was an employee of RB Humphreys and was therefore entitled to unemployment insurance benefits:

Here, claimant entered a lease purchase agreement for use of a truck owned by RB Humphreys. RB Humphreys retained exclusive use of the vehicle while under lease and did not relinquish the title until the full purchase price was paid. RB Humphreys set the pay rate for claimant, who, absent negligence on his part, was paid regardless of whether the customer ultimately paid RB Humphreys. Although claimant could refuse assignments, testimony established that his lease purchase agreement would be terminated if an assignment was not accepted within a certain period of time. Furthermore, pursuant to the service contract with RB Humphreys, claimant was subject to a one-year noncompete clause following the cessation of their relationship. Matter of Wilder (RB Humphreys Inc.–Commissioner of Labor), 2015 NY Slip Op 08487, 3rd Dept 11-19-15

 

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