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ALTHOUGH CLAIMANT WAS REHIRED AFTER THE STRIKE, THE EMPLOYER HAD NOT ASSURED CLAIMANT OF THE RIGHT TO RETURN TO WORK DURING THE STRIKE, THEREFORE THE EMPLOYER WAS NOT ENTITLED TO THE SEVEN-WEEK SUSPENSION OF UNEMPLOYMENT BENEFITS DURING A STRIKE PERMITTED BY LABOR LAW 592 (THIRD DEPT).

The Third Department determined claimant was entitled to unemployment insurance benefits and were not subject to the seven-week suspension of benefits during a strike (Labor Law 592). The suspension of benefits is not applicable where, as here, the employer indicates it is hiring permanent replacements for the strikers:

Although it is unclear which of claimants’ positions were filled by the permanent replacement workers, the record unequivocally demonstrates that none of the claimants were notified in a certified writing that they would be able to return to their prior positions upon the conclusion of the strike. Moreover, although claimants ultimately were allowed to return to their prior positions following ratification of the parties’ … Memorandum of Agreement ending the strike, that agreement is of no consequence because the employer failed to provide any written certification during either the seven-week suspension period or at any time prior to the conclusion of the strike assuring claimants that they would retain the right to return to their prior positions upon conclusion of the strike … . Matter of D’Altorio (Clare Rose, Inc.–Commissioner of Labor), 2019 NY Slip Op 04249, Third Dept 5-30-19

 

NEWSPAPER DELIVERY CARRIERS ARE EMPLOYEES ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, a newspaper delivery carrier, was an employee of the The Hearst Corporation and was therefore entitled to unemployment insurance benefits:

… [T]he record demonstrates that Hearst established the delivery routes, determined the rate of pay for each route, provided carriers with customer lists containing the suggested order of delivery, handled customer complaints, imposed monetary penalties for unsatisfactory deliveries, prohibited carriers from inserting their own flyers into the newspapers without prior approval and required carriers to maintain a valid driver’s license and their own liability insurance. Notably, when new carriers were retained, Hearst arranged to have someone accompany them to show them their routes. In addition, Hearst imposed performance guidelines, set forth in written contracts like the ones it entered into with claimant, requiring carriers not to miss more than two deliveries per thousand. It also provided carriers, including claimant, with an orientation checklist setting forth additional information, such as delivery time deadlines, as well as the requirement that they provide a trained substitute if unable to cover a shift.

In view of the foregoing, the Board’s finding that Hearst exercised sufficient direction and control over claimant and similarly situated carriers so as to establish the existence of an employment relationship is supported by substantial evidence and is consistent with other newspaper delivery cases involving analogous facts … . Matter of Hennessy (Hearst Corp.–Commissioner of Labor), 2019 NY Slip Op 04245, Third Dept 5-30-19

 

CLAIMANT’S BEHAVIOR, ALLEGED TO HAVE CONSTITUTED HARASSMENT AND INSUBORDINATION, DID NOT RISE TO THE LEVEL OF DISQUALIFYING MISCONDUCT, CLAIMANT WAS ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant’s behavior did not rise to the level of misconduct which would disqualify him from receiving unemployment insurance benefits. Claimant had objected to the way he was treated by his supervisor after claimant had been accused by a coworker of sending a harassing text message:

During the course of his employment as a design assistant for a clothing manufacturer, claimant sent a text message to a coworker. The coworker forwarded this message to the attention of claimant’s supervisor, complaining that it was harassment. On the following business day, the supervisor verbally reprimanded claimant for sending the message. Claimant disagreed with the discipline and was advised that he could come back to discuss the matter further if he wished. Later that day, claimant approached the supervisor and demanded to see the text message. Using a tone that the supervisor described as “angry,” “hostile” and “aggressive,” claimant disputed the supervisor’s position that the message was work-related and told her how he believed she should have handled the matter. Another employee overheard the discussion and described claimant’s voice as “disrespectful” and “increasing [in] volume.” The employer’s co-owner subsequently terminated claimant’s employment, concluding that he had violated the employer’s anti-harassment policy by sending the message and had been insubordinate to the supervisor. …

Although the employer’s witnesses testified that claimant sent a harassing message and spoke loudly and rudely to the supervisor, they also testified that he had not previously engaged in insubordinate behavior and had not received prior warnings … . The Board further noted that claimant did not make abusive statements, refuse to follow the supervisor’s directions or take other actions that had previously been held to constitute disqualifying misconduct … . Matter of Salcedo (E.H. Mfg. Inc.–Commissioner of Labor), 2019 NY Slip Op 03125, Third Dept 4-25-19

 

NEWSPAPER ASSEMBLY AND DELIVERY PERSON WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, who assembled and delivered newspapers for Herald Publishing Company, was an employee entitled to unemployment insurance benefits:

… [T]he record reflects that claimant was assigned specific routes within defined delivery areas …, assembled and bagged her papers at the leased premises utilizing plastic bags and rubber bands purchased from Herald Publishing … and was required to provide Herald Publishing with proof of a driver’s license and automobile liability insurance … . The record further reveals that claimant elected to purchase accident liability insurance from a carrier referenced in the distribution agreements entered into between claimant and Herald Publishing and that the corresponding premiums for such coverage were deducted from the invoices generated in connection with her delivery services … . Finally, consistent with the terms of the distributor agreements signed by claimant, she was required to “pick up all newspapers at the agreed pick-up point,” i.e., the leased premises, deliver the newspapers to subscribers “at or before the target delivery time[s]” — for which she would be paid on a weekly basis at a specified per-paper rate … — and was precluded from placing any inserts or additional materials in the newspapers that she was delivering … . Matter of Fecca (Herald Publ. Co.–Commissioner of Labor), 2019 NY Slip Op 03120, Third Dept 4-25-19

 

THE RELATIONSHIP BETWEEN THE ONLINE PLATFORM WHICH CONNECTED PERSONS WITH CERTAIN SKILLS TO THOSE SEEKING TO HIRE FOR ODD JOBS WAS NOT AN EMPLOYER-EMPLOYEE RELATIONSHIP, CLAIMANT WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Board, determined claimant was not entitled to unemployment benefits after leaving TaskRabbit, an online platform which connected people with certain skills to clients looking people to hire for odd jobs (taskers). The relationship between TaskRabbit and the taskers was not an employer-employee relationship:

By virtue of the nature of the platform, TaskRabbit exercised absolutely no control over the manner in which the taskers completed the jobs that they obtained from clients. Indeed, the taskers bidded on the jobs posted on the platform and were awarded jobs either by a client selecting the most competitive bid or by being the first tasker to submit a bid on a particular job. All communications regarding the job were between the client and the tasker. Although TaskRabbit required taskers to submit to an identification verification process and criminal background check, complete an online questionnaire and take a quiz on use of the platform, it did not review their qualifications, provide them with training or evaluate their work performance. TaskRabbit provided customer service support to both clients and taskers, but it was directed at helping them use the platform. Similarly, the guidelines that it provided to taskers were designed to assist them in effectively using the platform, and no penalties were imposed for noncompliance. Both taskers and clients were rated based upon the feedback that they received without any input from TaskRabbit. TaskRabbit, however, did require taskers and clients to comply with its terms of use and retained the authority to curtail a tasker’s access to the platform for safety and/or security reasons. Nevertheless, it used a third-party payment provider to facilitate payments between clients and taskers, did not provide taskers with any equipment, supplies or uniforms, and did not reimburse them for expenses. Furthermore, taskers were free to cancel jobs and to provide their services on other platforms. Matter of Walsh (Taskrabbit Inc.–Commissioner of Labor), 2019 NY Slip Op 00649, Third Dept 1-31-19

 

CLAIMANT, WHO HAD BEEN INJURED, DID NOT DEMONSTRATE SHE WAS ABLE TO WORK DURING THE TIME SHE WAS CERTIFIED FOR BENEFITS, UNEMPLOYMENT INSURANCE APPEALS BOARD RULING SHE WAS ENTITLED TO BENEFITS REVERSED (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeals Board, determined claimant was not entitled to unemployment insurance benefits because she had been injured and did not demonstrate she was able to work during the relevant period of time:

The substantial and unrefuted medical documentation in the record, together with claimant’s receipt of workers’ compensation benefits, establishes that claimant was unable to perform any job duties required of her during the time period in which she certified for benefits … . In addition, inasmuch as the essential job functions required of her included the performance of various physical tasks, including the manual operation of a school bus door three times in a certain amount of time, we are unpersuaded by claimant’s contention that, at the time she applied for benefits and during the time period in question, no accommodation was made for her injury… . Moreover, although claimant testified that she previously worked as a waitress and that she was capable of performing such work while she recovered from her injury, claimant’s testimony does not reflect that she sought, or was available for, this type of employment at any point during the time period in which she certified for benefits … . In view of the foregoing, we conclude that the record does not contain substantial evidence to support the Board’s finding that claimant was ready, willing and able to work in her employment as a school bus driver or in any other type of employment for which she is reasonably fitted by training and experience during the time period in which she certified for benefits … . Matter of Ormanian (Commissioner of Labor), 2018 NY Slip Op 08592, Third Dept 12-13-18

 

NEWSPAPER CARRIER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, who delivered newspapers to residential customers, was an employee of Gannett Satellite Information Network:

… [W]e find that the indicators of control contained in Gannett Satellite’s contract with claimant are practically the same as the relevant factors previously identified to establish an employer-employee relationship; accordingly, we find that substantial evidence supports the Board’s decisions (see Matter of Smith [Gannett Satellite Info. Network, Inc.-Commissioner of Labor], ___ AD3d ___, ___, 85 NYS3d 796, 797 [2018]; Matter of Race [Gannett Satellite Info. Network, Inc.-Commissioner of Labor], 128 AD3d 1130, 1130 [2015]; Matter of Gager [Gannett Satellite Info. Network, Inc.-Commissioner of Labor, 127 AD3d 1348, 1348-1349 [2015]; Matter of Hunter [Gannett Co., Inc.-Commissioner of Labor], 125 AD3d 1166, 1167-1168 [2015]; Matter of Armison [Gannett Co., Inc.-Commissioner of Labor], 122 AD3d 1101, 1102-1103 [2014], lv dismissed 24 NY3d 1209 [2015]). Matter of Nicholas (Commissioner of Labor), 2018 NY Slip Op 08589, Third Dept 12-13-18

 

DANCE INSTRUCTOR WAS AN EMPLOYEE OF THE FOUNDATION CHARTERED BY THE NYS BOARD OF REGENTS TO SET UP ARTISTIC PROGRAMS IN SCHOOLS (THIRD DEPT).

The Third Department determined the claimant, a dance instructor, was an employee of the foundation which was chartered by the New York State Board of Regents to provide artistic programs in schools. Claimant was therefore entitled to unemployment insurance benefits:

The evidence adduced at the hearing established that the Foundation retained control over important aspects of claimant’s and other teaching artists’ services. To that end, the Foundation solicited and worked with schools to establish an appropriate artistic program to meet their needs and budget, screened the artists, matched their skills and experience to the schools’ needs and set the artists’ rate of pay, which was less than the Foundation received by contract from the Department, and helps artists work in the academic settings. The Foundation paid the artists directly, upon receipt of weekly invoices provided by the Foundation and completed by the artist documenting hours worked, provided guidelines for them to follow and monitored their progress and hours to stay within the schools’ budgets and program plans. The Foundation fielded and attempted to resolve complaints from schools regarding artists’ conduct or performance and found replacements when needed, and its officers attended the final performances and held evaluation meetings at the end with school personnel and the artists. Matter of Pearson (Commissioner of Labor), 2018 NY Slip Op 08588, Third Dept 12-13-18

 

LIMOUSINE DRIVER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined a limousine driver for XYZ was an employee entitled to unemployment insurance benefits:

XYZ imposed rules “regarding every aspect of claimant’s performance” and thereby “exercised control over the results produced [and, more importantly,] the means used” to service XYZ’s clients … . While XYZ was obligated to comply with the rules governing the for-hire car service industry established by the Taxi and Limousine Commission, the testimony and a comparative review of the rules together established that XYZ’s rules were significantly more specific and detailed or involved interpretations that often went well beyond the Commission’s rules … . Indeed, an officer of XYZ explained that these additional specific requirements were designed “to satisfy the customer expectation.” Thus, as we have consistently done in similar cases, we find that substantial evidence supports the Board’s factual determination that claimant was an employee of XYZ, despite the existence of evidence that might support a contrary conclusion … . Matter of Jung Yen Tsai (XYZ Two Way Radio Serv., Inc.–Commissioner of Labor), 2018 NY Slip Op 07807, Third Dept 11-15-18

UNEMPLOYMENT INSURANCE (LIMOUSINE DRIVER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/LIMOUSINE DRIVERS (UNEMPLOYMENT INSURANCE, LIMOUSINE DRIVER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

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CLAIMANT’S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined the fact that the claimant was terminated from her employment as a city tax assessor because of two drunk-driving-related crimes did not preclude her from eligibility for unemployment insurance, The drunk driving incidents had nothing to do with her job and there was evidence she could have continued doing her job even though her license had been suspended for 90 days:

The disciplinary determination was founded, in part, upon claimant's two convictions for driving while under the influence of alcohol and her resulting license suspension. Whether this amounted to disqualifying misconduct posed a factual question for the Board, “and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct” … . …

The drunk driving incidents did not occur while claimant was working. Notably, possession of a valid driver's license was not listed among the qualifications necessary to hold the position of Sole Assessor and claimant testified that she was not advised that this was a requirement … . Claimant was not incarcerated as a result of her convictions and she testified that she was ready and able to fulfill her job duties notwithstanding the suspension of her driver's license … . Moreover, while claimant acknowledged that she occasionally did site visits, she testified that she could perform her duties while her license was temporarily suspended given that much of the data needed to compute the assessments had already been compiled and she could obtain a lot of the information online. Matter of Stack (City of Glens Falls–Commissioner of Labor), 2018 NY Slip Op 06840, Third Dept 10-11-18

UNEMPLOYMENT INSURANCE (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/EMPLOYMENT LAW (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/MUNICIPAL LAW  (CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/CRIMINAL LAW (UNEMPLOYMENT INSURANCE, CLAIMANT'S TERMINATION FROM HER EMPLOYMENT WITH THE CITY BASED UPON TWO DRIVING WHILE UNDER THE INFLUENCE CONVICTIONS DID NOT PRECLUDE HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

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