The Third Department determined the claimant photographer demonstrated she was an employee of the New York Post, and therefore was entitled to unemployment benefits:

The existence of an employer-employee relationship presents a factual question for the Board to resolve … . Where, as here, “professionals are involved, the relevant inquiry is whether the purported employer retains overall control of important aspects of the services performed” … . Accordingly, “[a]; determination identifying professional workers as employees will be upheld if substantial evidence in the record demonstrates that the employer had control over important aspects of the services performed, even if the worker[]; retain[ed]; control over the[]; work product and the means of crafting it” … .

Following an initial interview and completion of a trial photography session, which was designed “to see if she was good enough to receive assignments” from NYP, claimant consistently received assignments from NYP by telephone or email and worked a “pretty set schedule” of four days each week. According to an NYP representative, these assignments were distributed based upon NYP’s “view of [claimant’s]; suitability for a particular story or picture situation,” and NYP set claimant’s daily rate of pay. Claimant testified that she was given specific instructions for her assignments “most of the time,” which on occasion included “really specific directions about what kind of picture [NYP]; wanted.” Additionally, claimant was required to call in at the beginning and end of her assignments and “couldn’t just go home” if she finished an assignment early. Although claimant admittedly provided her own equipment, NYP specified — in a March 2006 memorandum — the type of camera lens that claimant was required to use, as well as the quantity and selection of photographs that she was to submit. Similarly, while claimant retained the copyright to her photographs, she was precluded from granting rights to those pictures to any newspaper located within a 75-mile radius of New York City without NYP’s prior express approval. Finally, NYP reimbursed claimant for certain of her expenses.

Such proof, in our view, supports the Board’s finding of an employer-employee relationship as to claimant and others similarly situated … . Matter of Nance…, 2014 NY Slip Op 03720, 3rd Dept 5-22-14

 

The Third Department affirmed the appeal board’s determination that, although the employee’s misconduct was serious enough to warrant firing, the employee was still entitled to unemployment insurance:

“Not every discharge for cause rises to the level of misconduct disqualifying a claimant from receiving unemployment insurance benefits” … . Here, the Board, in its capacity as the “final arbiter of factual matters involving questions of credibility” …, found it significant that, while claimant did not lock out the machine properly, this was the first time that he was disciplined for violating this procedure, and he “self-reported the matter to the employer.” Although disqualifying misconduct can be found where an employee disregarded “an employer’s established procedures and policies, particularly where it is potentially detrimental to the employer’s best interest” …, here, there was proof in the record confirming that claimant’s lapse in judgment resulted in little risk of injury to him due to the lack of water and paper products in the system during the shutdown. Under the particular circumstances herein, we conclude that there is substantial evidence supporting the Board’s decision, regardless of proof that would support a contrary result… . Matter of Lee (Commissioner of Labor), 2014 Slip Op 03563, 3rd Dept 5-15-14

 

The Third Department determined that Unemployment Insurance Appeal Board properly found that claimants were employees of Just Energy New York Corporation and were thus entitled to unemployment insurance payments from the employer:

The record establishes that some indicia of control by Just Energy was mandated by law, such as requiring the agent to carry a photo identification badge bearing Just Energy’s name and logo, which, alone, is not sufficient to establish an employer-employee relationship. Nevertheless, “it can still be considered as part of the overall determination of control exercised over” the agents  … . Here, the Board was not convinced that all the indicia of control that Just Energy exercised over the agents was required by applicable state law. Specifically, Just Energy advertised for and interviewed the agents before hiring them. Just Energy provided the agent agreement and set the commission rate, both of which could be changed only by Just Energy. Just Energy provided the agent with the customer contracts. Contracts were required to be submitted on a weekly basis, approval by Just Energy was required before the contracts became effective, and Just Energy reviewed the contracts and returned them to the agent if any corrections needed to be made. Significantly, the agreement precluded the agents from working for any competitor during the term of the contract, as well as for three weeks following the termination of the agreement. Agents were required to attend two half-day orientation sessions, and received a training manual and code of conduct, which, if not adhered to, could result in termination of the contract. Just Energy would field questions from agents. Furthermore, any complaints were handled by Just Energy, which could investigate and maintain a file on an agent. Although there is evidence to support a contrary conclusion, we find substantial evidence to support the Board’s decision that the extent of the control exercised by Just Energy over the agents evinces an employer-employee relationship … . Matter of Cohen (Just Energy Mktg Corp—Commissioner of Labor), 2014 NY Slip Op 02984, 3rd Dept 5-1-14

 

The Third Department reversed the appeal board and determined waiters and bartenders placed with clients for catered functions by John Lack Associates, LLC, were not John Lack employees:

Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence … .  “[S]uch a relationship will be found to exist where the employer exercises control over the results produced or the means used to achieve those results, with the latter being more important”… .

John Lack provides its clients with individuals fitting the client’s requirements for each particular event.  The agency neither interviews nor screens the workers, other than to ensure that they have the necessary uniform and equipment.  However, the workers generally provide their own uniform and equipment. Although the client may provide a uniform on occasion, John Lack does not.  After being retained by a client, John Lack contacts individuals from its lists and explains the details and requirements of the available job.  The individual is free to refuse a job and may do so, for example, if the pay rate offered is unacceptable.  Notably, most of the waiters and bartenders accept work from other placement agencies.  If the worker accepts the job offered by John Lack, the agency directs him or her to report to a representative of the client at the event.  However, it is the client that instructs, controls and supervises the worker at the event.  In this regard, the client explains the rules of conduct to the worker and, if a worker’s performance is not satisfactory, the client will instruct the individual to leave or fire him or her from the job.  There is no indication in the record that John Lack provides workers with any training.  Matter of John Lack Associates, LLC …, 516638, 3rd Dept 12-5-13

 

The College Network (TCN) sells educational materials for personal study from home to obtain college credits through testing. Claimant was retained by TCN to promote and selling the materials. After claimant stopped working for TCN he filed a claim for unemployment insurance. The Unemployment Insurance Appeal Board upheld the decision that claimant was an employee entitled to unemployment insurance.  The Third Department affirmed:

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 predominant consideration in making this inquiry is evidence of the alleged employer’s control over the results produced or the means used to achieve those results, with the latter being more important” … .  Here, there is ample evidence that TCN exercised control over many aspects of the program advisors’ work.

Notably, TCN established the program advisors’ sales territory and provided them with sales leads as well as product knowledge training.  Although the program advisors could pursue these leads or develop their own, they were paid commissions based upon percentages set by TCN depending on the manner in which the sale was generated.  The program advisors were required to report to TCN the results of company-generated leads and were only allowed to use advertisements and promotional materials approved by TCN.  TCN provided program advisors with company email addresses and business cards, and reimbursed them for the expenses of attending some training.  Notably, at times, regional sales managers accompanied the program advisors on sales calls to ensure they were providing customers with accurate information. In addition, TCN maintained a corporate calendar by which it would schedule appointments for the program advisors depending upon their availability.  Significantly, the program advisors were expected to contact nine customers within a 90-day period, and TCN retained the right to terminate them if they were underperforming.  TCN also prohibited the program advisors from working for competitors for a two-year period.  Matter of Smith…, 515773, 3rd Dept 9-26-13