The Third Department determined claimants were entitled to unemployment insurance benefits. Claimants were hired on a temporary basis to address damage caused by a hurricane.  The employer argued claimants were hired to address an emergency and therefore were not entitled to coverage. In rejecting the emergency exception, the court noted claimants were hired a year after the hurricane and performed routine maintenance:

For purposes of determining a claimant’s eligibility for unemployment insurance benefits, Labor Law § 565 (2) (d) provides that “the term ’employment’ does not include services rendered for a governmental entity by . . . a person serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency” … . “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” … . * * *

The record evidence reflects that claimants, who were hired on a temporary basis using federal grant money received as a result of the damage caused by the hurricane, performed routine maintenance duties, including cutting grass, raking leaves, shoveling snow, driving trucks and cleaning municipal parking lots. In determining that the services performed by claimants were related to the hurricane clean-up efforts but “not performed in case of an emergency,” the Board noted that claimants were hired almost a year after the hurricane and at a time when “there was no need for immediate action.” The Board also relied upon a Program Letter issued by the United States Department of Labor (hereinafter DOL) that provided the DOL’s interpretation of the exclusion from unemployment insurance coverage of governmental services performed in case of emergency … . That Program Letter provides that “the urgent distress caused by the emergency . . . must directly cause the need for the services to be performed” and that, if the services performed occur “after the need for immediate action has passed, they are not necessarily performed in case of emergency”… . Given the Board’s reliance upon the DOL’s Program Letter, as well as the non-exigent, routine nature of the services provided by claimants, who were hired by the employer nearly a year after the hurricane, there is a rational basis for the Board’s decision that the exclusion did not apply and that the services performed by claimants “were in covered employment.” … . Matter of Clemons (Village of Freeport–Commissioner of Labor), 2017 NY Slip Op 04333, 3rd Dept 6-1-17

UNEMPLOYMENT INSURANCE (ALTHOUGH CLAIMANTS WERE TEMPORARY EMPLOYEES HIRED BECAUSE OF HURRICANE DAMAGE, THE EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE DID NOT APPLY, CLAIMANTS ENTITLED TO BENEFITS)/EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE (ALTHOUGH CLAIMANTS WERE TEMPORARY EMPLOYEES HIRED BECAUSE OF HURRICANE DAMAGE, THE EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE DID NOT APPLY, CLAIMANTS ENTITLED TO BENEFITS)/LABOR LAW (EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE, ALTHOUGH CLAIMANTS WERE TEMPORARY EMPLOYEES HIRED BECAUSE OF HURRICANE DAMAGE, THE EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE DID NOT APPLY, CLAIMANTS ENTITLED TO BENEFITS)

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant was willing and able to work, within the meaning of the Unemployment Insurance Law, when she took a leave of absence because of domestic abuse. Claimant alleged she was unable to leave her house and walk to work because her former boyfriend would harass her both as she walked to work and at work:

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Here, the uncontroverted evidence is that claimant was ready, willing and able to work during the period in issue. Under the circumstances presented, we disagree with the Board that her leave of absence necessitated by the actions of a perpetrator of domestic abuse rendered her legally unavailable for work … . To that end, and pursuant to Labor Law § 593 (1) (b) (i), the Legislature has provided that an employee may not be disqualified from receiving unemployment insurance benefits for separating from employment “due to any compelling family reason,” which includes “domestic violence . . . which causes the individual reasonably to believe that such individual’s continued employment would jeopardize his or her safety or the safety of any member of his or her immediate family”… . The progenitor of Labor Law § 593 (1) (b) (i) was enacted  … in response to a New Jersey appeals court ruling that a woman who was forced to quit her job due to domestic violence was not entitled to collect unemployment benefits … and was intended to ensure that victims of domestic violence “may be eligible for [u]nemployment [i]nsurance” … . When the provision was amended to its current form in 2009 … , the legislative intent remained to ensure that “individuals who are voluntarily separated from employment due to compelling family reasons are eligible for [unemployment insurance] benefits” … . The Board credited claimant’s uncontroverted account that she was the victim of domestic violence, stalking and harassment, as well as her testimony that she was willing and able to work during the period in issue but was prevented from leaving her home to get to work due to her justifiable fear of further violence by her former boyfriend … .  Matter of Derfert (Commissioner of Labor),,2017 NY Slip Op 04016, 3rd Dept 5-18-17

UNEMPLOYMENT INSURANCE (CLAIMANT, WHO WAS UNABLE TO WORK BECAUSE OF DOMESTIC ABUSE, WAS ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS)/

The Third Department determined the installers of windows, siding, gutters, etc. sold by Barrier were employees of Barrier, not independent contractors. The decision has a clear explanation of the “substantial evidence” standard for court review of an administrative agency’s ruling and a substantive discussion of the employee/independent contractor criteria of the Fair Play Act (Labor Law 861-c):

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The Fair Play Act, codified in Labor Law article 25-B, was enacted as a measure to curb widespread abuses in the construction industry stemming from the misclassification of workers as independent contractors resulting in unfavorable consequences for both the workers and the public (see Labor Law § 861-a). In accordance therewith, the Fair Play Act contains a statutory presumption that a person performing services for a contractor engaged in construction shall be classified as an employee unless it is demonstrated that such person is an independent contractor or a separate business entity … . In order to be considered an independent contractor, a person must satisfy three criteria set forth in the statute: (a) the person must be free from the contractor’s direction and control in performing the service; (b) the service performed must be outside the usual course of the contractor’s business; and (c) the person must be customarily engaged in an independently established occupation similar to the service performed … . This new statutory test is sometimes referred to as the ABC test … . The separate business entity test, codified in Labor Law § 861-c (2), sets forth 12 criteria to be used to determine whether a person is a separate business entity and, thus, not subject to the presumption that he or she is an employee of the contractor. Notably, in each test, all of the criteria must be met to overcome the statutory presumption of an employment relationship. Matter of Barrier Window Sys., Inc. (Commissioner of Labor), 2017 NY Slip Op 03093, 3rd Dept 4-20-17

UNEMPLOYMENT INSURANCE (UNDER THE CRITERIA OF THE FAIR PLAY ACT, WINDOW, GUTTER, SIDING INSTALLERS WERE EMPLOYEES, NOT INDEPENDENT CONTRACTORS)/WINDOW INSTALLERS  (UNDER THE CRITERIA OF THE FAIR PLAY ACT, WINDOW, GUTTER, SIDING INSTALLERS WERE EMPLOYEES, NOT INDEPENDENT CONTRACTORS)/FAIR PLAY ACT  (UNDER THE CRITERIA OF THE FAIR PLAY ACT, WINDOW, GUTTER, SIDING INSTALLERS WERE EMPLOYEES, NOT INDEPENDENT CONTRACTORS)/INDEPENDENT CONTRACTORS (UNDER THE CRITERIA OF THE FAIR PLAY ACT, WINDOW, GUTTER, SIDING INSTALLERS WERE EMPLOYEES, NOT INDEPENDENT CONTRACTORS)

The Third Department determined claimant, a biometric screener, was an employee of Summit, a company which provides health screenings and flu immunizations at clients’ workplaces:

The record reflects that Summit posted job openings for biometric screeners on its website, interviewed applicants and screened their experience and license credentials. Summit scheduled the clinics with its clients and the clients determined what services were needed. Summit then posted the clinic dates, and screeners could sign up to work at the clinics based upon their availability. If the screeners could not report to work after signing up for a clinic, they notified Summit, which would then find a replacement. Screeners were paid an hourly rate by Summit and were reimbursed for certain travel and other expenses. Summit provided equipment and supplies for the clinics and claimant was required to abide by a dress code and wear a Summit identification badge. In sum, we conclude that the facts in this case are materially indistinguishable from two prior cases in which we concluded that Summit was the employer of its certified medical assistants … . Matter of Williams (Summit Health, Inc.–Commissioner of Labor), 2017 NY Slip Op 00363, 3rd Dept 1-19-17

UNEMPLOYMENT INSURANCE (BIOMETRIC SCREENER WAS AN EMPLOYEE OF HEALTH AND WELLNESS COMPANY)/BIOMETRIC SCREENER (UNEMPLOYMENT INSURANCE, BIOMETRIC SCREENER WAS AN EMPLOYEE OF HEALTH AND WELLNESS COMPANY

The Third Department determined claimant could not use his inability to meet the requirements of his employment agreement as good cause for leaving his employment. Claimant agreed to provide his own vehicle for work. After an accident he no longer had access to a vehicle. The loss of his vehicle was deemed not to constitute good cause:

The Board determined that the employment agreement, wherein claimant agreed to provide his own vehicle, was not controlling. On the record before us, we disagree with the Board’s conclusion that claimant left his employment with good cause. Although claimant’s testimony constituted substantial evidence regarding the circumstances surrounding the loss of the use of the vehicle, it was error to find that this constituted substantial evidence that his separation from his employment was for good cause. We note that claimant admitted that he shared responsibility for the accident with the other driver and that he had entered into a written employment agreement whereby he agreed to provide his own vehicle and keep it in good operational condition. Further, and importantly, he also agreed that if the vehicle became disabled, he would replace it expeditiously. It is well established that “once the terms of employment have been agreed upon, such terms cannot thereafter be invoked as valid grounds for quitting” … . Inasmuch as claimant was aware of the terms of his employment and accepted same, we conclude that he could not later invoke his inability to meet the requirements of his employment, regardless of the circumstances or fault surrounding the loss of the use of his vehicle, as good cause for leaving his employment … . Matter of Brown (Express Delivery LLC–Commissioner of Labor), 2017 NY Slip Op 00359, 3rd Dept 1-19-17

UNEMPLOYMENT INSURANCE (INABILITY TO MEET THE REQUIREMENTS OF AN EMPLOYMENT AGREEMENT IS NOT GOOD CAUSE FOR LEAVING EMPLOYMENT)/EMPLOYMENT AGREEMENT (UNEMPLOYMENT INSURANCE, INABILITY TO MEET THE REQUIREMENTS OF AN EMPLOYMENT AGREEMENT IS NOT GOOD CAUSE FOR LEAVING EMPLOYMENT)