You are here: / Unemployment Insurance

Motor-Route Newspaper Carriers Were Employees, Not Independent Contractors

The Third Department determined motor-route newspaper carriers were employee, despited “independent contractor” characterization in the distribution agreement:

“Whether an employer- employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence” … . “While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important” … .

Recently, in Matter of Armison [Gannett Co., Inc.— Commissioner of Labor] (122 AD3d 1101 [2014]), this Court upheld a finding of an employer-employee relationship between Gannett and certain newspaper delivery persons. Here, as we did in Armison, we find that the requisite level of control was present to support the Board’s finding of an employer-employee relationship. Claimant was required to make deliveries within set time frames and according to other conditions. Claimant was also required to be a licensed driver with a registered and insured vehicle, and was obligated to provide Gannett with a copy of her driver’s license and proof of liability insurance. Additionally, under the terms of the distribution agreement, all substitutes were required to be licensed and insured. Claimant was provided a route set by Gannett and, if claimant was not available to deliver her route, she was responsible for finding a substitute. In the event that deliveries were not made by claimant, Gannett would use an employee to make the delivery and charge claimant a fee. Further, Gannett controlled other aspects of claimant’s work, including prohibiting placing foreign materials on or in the publications. Claimant was also provided access to accident insurance from Gannett’s policy. In light of the foregoing, and despite the existence of other evidence in the record suggestive of an independent contractor relationship — including the distribution agreement expressly designating claimant as an independent contractor — we find that substantial evidence supports the Board’s determination that claimant was an employee … . Matter of Hunter…, 2015 NY Slip Op 01509, 3rd Dept 2-19-15

 

Insurance Agent Was an Employee, Not an Independent Contractor

The Third Department determined claimant, an insurance agent, was an employee of Aaron Casey Insurance, not an independent contractor, and, therefore, was entitled to unemployment insurance benefits:

Whether an employee-employer relationship exists “is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record” … . “While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important” … .

… [C]laimant was required to work a minimum of 30 hours per week, per a schedule set by Aaron Casey Insurance, and needed permission to take time off. In addition to servicing customers outside the office, claimant was responsible for performing in-office work, including answering phones and servicing walk-in customers. Claimant was paid an hourly wage plus commissions and was reimbursed for the costs associated with obtaining his insurance license. Additionally, claimant was provided training and was required to report back regarding sales leads, his work was reviewed by Aaron Casey Insurance and he had a sales quota and faced termination if it was not met. In our view, the foregoing is more than sufficient to support the Board’s finding of an employment relationship, notwithstanding the existence of other proof that could support a contrary conclusion … . Matter of Fahrson…, 2015 NY Slip Op 01515, 3rd Dept 2-19-15

 

,

Newspaper Carriers Were Employees Despite Reference to Them as Independent Contractors In Employment Agreement

The Third Department affirmed the Appeal Board's determination that claimant newspaper-carrier was an employee, not an independent contractor. and therefore was entitled to unemployment insurance benefits, despite the “independent contractor” language in the contract:

“Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the. . . [B]oard, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion” … . “An employer-employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results [although] control over the means is the more important factor to be considered” … .

The evidence provided ample support for the Board's finding that [the employer] exercised control over significant aspects of the carriers' work and the means used to achieve timely and proper deliveries, and the Board's determination that the carriers were its employees is consistent with prior cases involving essentially similar facts … . … “[a] different finding is not compelled by the existence of a written agreement that identifies claimant as an independent contractor” … . Matter of Isaacs…, 2015 NY Slip Op 01215, 3rd Dept 2-11-15

 

,

Teacher at a Community College Entitled to Unemployment Insurance Benefits—Teacher Was Offered Employment in the Next School Year But the Hours Were Drastically Reduced—Therefore the Teacher Did Not Receive “Reasonable Assurance of Continued Employment” within the Meaning of Labor Law 590(10)

The Third Department determined claimant, who taught at a community college, did not receive “reasonable assurance of continued employment” during the next school year and therefore was eligible for unemployment insurance benefits.  Claimant had been offered employment for less than a third of the hours he had worked in the past school year:

Labor Law § 590 (10) precludes professionals employed by educational institutions from receiving unemployment insurance benefits for periods between two successive academic years when the employer has provided them with a reasonable assurance of continued employment … . “A reasonable assurance . . . has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period” … . Whether a claimant received a reasonable assurance of employment is a question of fact for the Board to resolve and its findings in this regard will be upheld if supported by substantial evidence … .

Here, claimant worked 150 hours during the 2010-2011 academic year, but was only offered 45 hours during the 2011-2012 academic year, limited to the 2011 fall semester. The employer did not specify any hours for the 2012 spring semester either in its reappointment letter or notice advising claimant of his assignment, and claimant was offered significantly fewer hours during the 2011 fall semester than he had worked during the 2010 fall semester. Matter of Rosenbaum …, 2015 NY Slip OP 00926, 3rd Dept 2-5-15


Psychiatrist Deemed an Employee of a Counseling Center

The Third Department determined a psychiatrist was an employee of the New York Psychotherapy and Counseling Center (NYPCC) and was therefore entitled to unemployment insurance benefits:

“Whether there exists an employee-employer relationship is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record” … . Further, “[w]here, as here, medical professionals are involved, the pertinent inquiry is whether the purported employer exercised overall control over the work performed” … .

Here, evidence was presented that NYPCC referred the patients to claimant and scheduled their initial appointments. NYPCC paid claimant an hourly wage for the time he treated the patients and NYPCC would bill the patients. Claimant was paid whether or not NYPCC was reimbursed by the patients or their health plans. Claimant worked in an office provided by NYPCC on NYPCC's premises — for which he only paid a nominal weekly fee of $9.87 — and would generate a treatment record that is accessed by NYPCC's doctors and staff. Matter of Lustgarten…, 2014 NY Slip Op 08538, 3rd Dept 12-4-14

 

Persons Who Deliver Gannett Newspapers Are Employees Entitled to Unemployment Insurance Benefits Notwithstanding the “Independent Contractor” Designation in the Operating Agreements

The Third Department affirmed the unemployment insurance appeal board’s determination that the claimants, who delivered Gannett’s newspapers, were employees entitled to unemployment insurance benefits, notwithstanding the “independent contractor” designation in the operating agreements:

Whether an employer-employee relationship exists “is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence” … . “While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important” … . Here, while there is evidence to support a contrary outcome …, we find that the record contains substantial proof to support the Board’s finding that Gannett exercised control over claimants’ work. Gannett assigned claimants specific routes within predetermined delivery areas, required proof of a driver’s license and vehicle insurance where a vehicle was used to make deliveries and, while claimants were permitted to use a substitute carrier to fulfill delivery duties, they were required by contract to provide Gannett with proof that the substitute had a driver’s license and insurance if a vehicle would be used to complete deliveries. Additional contractual provisions included, among other things, requirements that claimants remove unsold publications from newspaper racks, ensure that racks were properly maintained, reserve publications of vacationing customers and create and maintain accurate circulation records that could be turned over, upon notice, to Gannett. Further, Gannett controlled other aspects of claimants’ activities, including directives to not insert or attach “foreign matter on, into or with copies of any publication, nor insert copies of any publication into or with copies of any other publication” without receiving Gannett’s approval. Notwithstanding the existence of evidence in the record that could weigh in favor of a finding that claimants were independent contractors, including that the operating agreements expressly designated claimants as independent contractors, in light of the indicia of control that Gannett had over claimants, we find that substantial evidence supports the Board’s decisions in these matters… . Matter of Armison…, 2014 NY Slip Op 08079, 3rd Dept 11-20-14

 

,

Claimant Excluded from Eligibility for Unemployment Insurance Benefits by Labor Law 565 (Re: Major Policymaking or Advisory Positions)

The Third Department upheld the Unemployment Insurance Board’s determination that claimant was not entitled to unemployment insurance benefits by virtue of a statutory exclusion (Labor Law 565) for persons holding a major nontenured policymaking or advisory position:

For purposes of determining a claimant’s eligibility for unemployment insurance benefits, Labor Law § 565 (2) (e) excludes from employment “services rendered for a governmental entity by . . . a person in a major nontenured policymaking or advisory position.” Whether this exclusion applies presents a mixed question of law and fact, and the Board’s determination in this regard will be upheld if it has a rational basis … .

Here, claimant’s position had three primary functions: (1) to investigate patterns of discrimination involving violations of the Human Rights Law appropriate for filing an administrative complaint by DHR, (2) to oversee the prosecution of complaints brought on behalf of individuals, and (3) to evaluate DHR’s [Division of Human Rights’] issuance of exemptions for certain housing providers. In addition, claimant was a member of the stimulus oversight team responsible for ensuring that stimulus funds were distributed in a nondiscriminatory manner. In performing his duties, claimant reported directly to the Commissioner of Human Rights, had meetings with the Commissioner on a variety of matters and made recommendations on the implementation of agency policies. In addition, he represented the DHR in its dealings with other agencies while a member of the stimulus oversight team and devised a system for gathering accurate information concerning expenditures made in connection therewith. Although claimant did not independently establish agency policy, he was involved in the process and his advice was solicited by the Commissioner. Under these circumstances, there is a rational basis for the Board’s decision that claimant held a major nontenured policymaking or advisory position excluded under Labor Law § 565 (2) (e) … . Matter of Birnbaum…, 2014 NY Slip Op 07719, 3rd Dept 11-13-14

 

,

Real Estate Broker Not an Employee of Commercial Real Estate Firm

The Third Department upheld the Unemployment Insurance Appeal Board’s determination that claimant, a real estate broker, was not an employee of a commercial real estate firm (Optimal):

It is well settled that the existence of an employment relationship is a factual issue for the Board to decide and its determination will be upheld if supported by substantial evidence … . The pertinent inquiry is whether the purported employer exercised control over the results produced or the means used to achieve those results, with control over the latter being more important … .

Evidence was presented that claimant was paid a commission of 60% of the brokerage fee collected by Optimal, which she negotiated with Optimal’s senior managing director. Moreover, claimant did not have an established work schedule or work location, independently maintained her own real estate license, carried her own business cards and was permitted to and did receive commissions on referrals from other parties. Notably, she was not required to report to anyone at Optimal nor was she required to accept leads that Optimal sent to her. In view of the foregoing, while we are unable to conclude, as a matter of law that no employment relationship exists (see Labor Law § 511 [19]), substantial evidence supports the Board’s finding that Optimal did not exercise sufficient control over claimant’s work to be deemed her employer … . Matter of Spielberger…, 2014 Slip Op 07564, 3rd Dept 11-6-14

 

, ,

Appeal Board Was Bound by Arbitrator’s Findings of Fact Re: Employee’s Serious Safety-Rule Violations

The Third Department reversed the Unemployment Insurance Appeal Board after the Board determined petitioner should not have been terminated for rule violations.  Pursuant to arbitration under a collective bargaining agreement, the arbitrator had made factual findings re: serious rule violations.  The Third Department explained that the Board was bound by those factual findings:

[“While the Board was free to make ‘independent additional factual findings’ and draw its own independent conclusion as to whether claimant’s behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the [arbitrator’s] ‘factual findings regarding claimant’s conduct and [her] conclusion’ that claimant had” committed serious violations of safety rules … . The arbitrator here found that claimant had committed grave violations of the employer’s policies that had endangered the safety of his passengers, violations that were rendered even more egregious by the fact that he had previously been disciplined for similar conduct. The Board, in contrast, inexplicably found that claimant had “substantially complied with” the employer’s policies and made no effort to consider claimant’s behavior within the context of his prior disciplinary history. Thus, as the Board improperly contradicted factual findings of the arbitrator, remittal is necessary for it to “reconsider[] upon appropriate findings” … . Matter of Boretsky …, 2014 NY Slip Op 07414, 3rd Dept 10-30-14

 

Court Indicates a Certification Claimant Is Not Working Can Be a “Willful Misrepresentation” Even If “Unintentional”

The Third Department determined claimant was properly denied benefits because of his self-employment activities which he did not report.  The court noted that the certification that claimant was not working supports the finding that he made a “willful misrepresentation even if it was unintentional:”

Whether a claimant is totally unemployed is a factual issue for the Board to decide, and its determination will be upheld if supported by substantial evidence … . A claimant who performs activities on behalf of an ongoing business may not be considered totally unemployed, even if such activities are minimal or the business is not profitable, if he or she stands to benefit financially from its continued operation … . Here, claimant incorporated the business, opened a business checking account, created a business logo, started developing a business website, distributed business cards, attended seminars and trade shows and had apparel samples made by overseas manufacturers, all in furtherance of establishing a lucrative business. Notwithstanding the fact that claimant was not receiving income from the business, substantial evidence supports the Board’s decision that he was not totally unemployed … . Furthermore, given that claimant read the provisions of the unemployment insurance handbook relating to self-employment, but represented that he was not working when certifying for benefits, we find no reason to disturb the Board’s finding that he made a willful misrepresentation — even if it was unintentional … . Matter of Romero…, 2014 NY Slip Op 06634, 3rd Dept 10-2-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy