The Third Department determined a tutor employed by a tutoring service, Mulberry, was an employee entitled to unemployment insurance benefits:

Mulberry did not advertise for tutors, but received inquiries directly from potential tutors who heard about Mulberry through various means. It then collected their resumes and notified them when an opening became available. When claimant was notified, Mulberry’s director reviewed his resume and qualifications, verified his certifications and met with him to discuss the details of the tutoring position, including the pay rate, which was set at $40 per hour and was a percentage of the fee that it charged to its clients. After Mulberry matched a tutor with a student, it provided the tutor with a “student profile” containing pertinent information about the student, but it did not dictate the lesson plan, observe the tutoring sessions or oversee the instruction. Once a tutor accepted an assignment, the tutor set up the instructional schedule directly with the student and/or parent and Mulberry did not impose set work hours. A tutor, however, was free to reject an assignment.

Although tutors could conduct tutoring sessions at other locations, most sessions occurred at Mulberry’s learning center where it had books, supplies, computers and equipment available for the tutors to use even though they typically used either their own or their students’ instructional materials. When tutors worked at Mulberry’s learning center, they completed a time sheet or calendar detailing their hours and the students they tutored. Folders that were provided by Mulberry containing student information were maintained at the learning center. Mulberry also provided the tutors with a “tutoring record” to help them keep track of their hours, the students they instructed and the material covered, as well as a monthly invoice form that the tutors could submit to receive payment, which was tendered regardless of whether Mulberry received payment from its clients. Mulberry did not reimburse tutors for expenses, withhold taxes from their compensation or prohibit them from working for others. However, it sometimes assisted in resolving scheduling issues and intervened in the rare case when there was a problem with a student. Moreover, if a tutor had accepted an assignment and then became unavailable for an extended period of time, Mulberry would find a replacement. Significantly, Mulberry labeled the tutors “our teachers” and referred to their instruction as “our lesson plans” in its marketing literature, giving the impression that the tutors were, in fact, Mulberry’s employees.

In view of the foregoing, we find that Mulberry exercised control over important aspects of the tutors’ work notwithstanding its lack of involvement in the actual instruction provided by the tutors. Mulberry was not simply a referral agency, but held itself out as the tutors’ employer and acted as such. Matter of Eidelson (Mulberry Tree Ctr. LLC–Commissioner of Labor), 2018 NY Slip Op 05645, Third Dept 8-2-18

UNEMPLOYMENT INSURANCE (TUTOR WAS AN EMPLOYEE OF THE TUTORING SERVICE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/TUTORS (UNEMPLOYMENT INSURANCE, TUTOR WAS AN EMPLOYEE OF THE TUTORING SERVICE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

The Third Department determined a registered nurse who worked for Human Care which provided home health care services was an employee entitled to unemployment insurance benefits:

Human Care maintains a list of registered nurses, designated as field nurse supervisors, who provide home health care services to its patients on an on-call basis. Human Care hired claimant as a field nurse supervisor following an interview and screening of her experience and license credentials. Upon hiring claimant, Human Care required claimant to sign a job summary detailing the various duties and responsibilities of a field nurse supervisor, which included completing clinical and progress notes, informing Human Care’s Director of Patient Services of any changes in a patient’s condition and needs and submitting all required paperwork to the Director within 48 hours of a visit. The job summary further stated that field nurse supervisors reported to the Director and were required to follow Human Care policies and procedures. Claimant was provided with Human Care’s handbook of policies and procedures. With respect to individual assignments, the Director would contact claimant when a client needed services and advise what services were to be provided. Claimant was free to accept or decline any assignment and, if she was unable to complete an assignment that she had accepted, Human Care would find a replacement. Claimant was required to complete and submit a written “base assessment” of the client to the Director for review. Additionally, Human Care set the fee paid to claimant for her services, which was not negotiable, and billed its clients or the clients’ insurance companies for claimant’s services.  Matter of Dillon (Commissioner of Labor), 2018 NY Slip Op 05386. Third Dept 7-19-18

UNEMPLOYMENT INSURANCE (NURSE PROVIDING HOME HEALTH CARE SERVICES WAS AN EMPLOYEE ENTITLED TO BENEFITS (THIRD DEPT))/NURSES (UNEMPLOYMENT INSURANCE, NURSE PROVIDING HOME HEALTH CARE SERVICES WAS AN EMPLOYEE ENTITLED TO BENEFITS (THIRD DEPT))/HOME HEALTH CARE (UNEMPLOYMENT INSURANCE, NURSE PROVIDING HOME HEALTH CARE SERVICES WAS AN EMPLOYEE ENTITLED TO BENEFITS (THIRD DEPT))