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HOUSEKEEPER WAS EMPLOYEE OF CLEANING REFERRAL AGENCY.

The Third Department determined a housekeeper was an employee of Today’s Cleaning Service (TCS), a referral agency which provided housekeepers for clients and was therefore entitled to unemployment insurance benefits:

The record evidence establishes that TCS solicited applicants through online advertisements and through its website — which claimant used to complete an application and submit her résumé — and screened the applications that it received … . TCS’s hiring process also required claimant to complete several jobs on a voluntary and trial basis, during which she would work alongside an experienced housekeeper who would report back on claimant’s work and ability to effectively provide services for TCS’s clients. The initial rate of pay was established and set by TCS, and TCS paid claimant by check. TCS informed claimant of her scheduled jobs — which claimant was required to promptly accept or reject — and the nature and scope of services required for each. During the performance of those cleaning services, TCS required claimant to wear an identification badge reflecting her affiliation with TCS … . TCS also provided its clients with “scoreboards” that the clients could use to evaluate the services provided and inform TCS of a housekeeper’s performance, which TCS could consider when assigning future jobs. If claimant was unable to provide an agreed-upon service or report for a job, claimant was required to immediately inform TCS, and TCS would secure a substitute … .

Although claimant was allowed to keep any existing clients upon being hired by TCS and could work for other employers, the written referral agreement governing TCS’s relationship with each housekeeper prohibited solicitation of TCS’s clients for one year after the time period encompassed by the agreement and specified that TCS’s client information remained the private property of TCS… . Matter of Jachym (Today’s Cleaning Serv.–Commissioner of Labor), 2016 NY Slip Op 06523, 3rd Dept 10-6-16

UNEMPLOYMENT INSURANCE (HOUSEKEEPER WAS EMPLOYEE OF CLEANING REFERRAL AGENCY)/HOUSEKEEPER (UNEMPLOYMENT INSURANCE, HOUSEKEEPER WAS EMPLOYEE OF CLEANING REFERRAL AGENCY)

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CITY HOUSING AUTHORITY OUTREACH WORKER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS.

The Third Department determined an outreach worker/field supervisor who, pursuant to a grant, worked for the Niagara Falls Housing Authority was an employee entitled to unemployment insurance benefits:

Prior to being hired, claimant filled out an application and was required to submit a résumé, after which he was interviewed by a panel, which included two officials from the Housing Authority, that determined to hire him … . Upon being hired, claimant was required to attend training … . The rate of pay for claimant, who was required to work 35 hours per week, was not subject to negotiation … , and claimant was required to fill out and submit weekly time sheets that would have to be approved and signed by his supervisor before receiving remuneration from the Housing Authority … . While claimant did not receive benefits, he was reimbursed for expenses related to the costs of a cell phone, gas, tolls, food and office supplies … , and the Housing Authority also provided claimant with office space to use in one of its buildings. While performing his duties as an outreach worker, claimant was required to wear a jacket or shirt, as well as a hat, identifying him as part of the SNUG [violence reduction] program … and was required to maintain a certain number of clients and to meet with those clients. Claimant was also not allowed to subcontract his work or employ a substitute to perform his work … , and his work in the community was reviewed periodically and subject to oversight by his supervisors … . Matter of Cole (Niagara Falls Hous. Auth.–Commissioner of Labor), 2016 NY Slip Op 06281, 3rd Dept 9-29-16

UNEMPLOYMENT INSURANCE (CITY HOUSING AUTHORITY OUTREACH WORKER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS)

EXOTIC DANCERS WERE EMPLOYEES.

The Third Department determined exotic dancers were employees entitled to unemployment insurance benefits:

The record reflects that the club would evaluate prospective dancers and instruct those who were inexperienced to observe a more experienced dancer. If the club determined that a dancer was “unappealing,” the dancer would not be permitted to continue to perform. Additionally, the dancers were required to present proof of legal age and citizenship or their services would not be engaged. The club charged patrons an admission fee and set the prices that the dancers would charge patrons for private one-on-one dances, with the club retaining a percentage thereof, and patrons would pay the club’s bartender for the private dances. While the dancers could set their own schedules, the club would compile a nightly list of the dancers scheduled to perform and post it on its website. Finally, the club provided the stage, private dance rooms, lighting and sound equipment, while the dancers supplied their own costumes and music. Matter of Greystoke Indus. LLC (Commissioner of Labor), 2016 NY Slip Op 05890, 3rd Dept 8-25-16

 

UNEMPLOYMENT INSURANCE (EXOTIC DANCERS WERE EMPLOYEES)

CLAIMANT DID NOT DEMONSTRATE SUFFICIENT ATTEMPTS TO RETURN TO WORK TO WARRANT BENEFITS; TOTAL INDUSTRIAL DISABILITY CLAIM SENT BACK, JUDGE AND BOARD FAILED TO DISCUSS THE RELEVANT FACTORS IN THE DENIAL OF THAT CLAIM.

The Third Department determined claimant, who was found to have a work-related permanent partial disability, did not demonstrate a sufficient attachment to the labor market to warrant benefits. Claimant’s only attempt to go back to work was enrollment in an unfunded training program. The court sent the “total industrial disability” claim back because the Workers’ Compensation Law Judge and the Board did not cite any medical evidence in support of the denial of the “total industrial disability” claim:

Although the Board has found that a claimant remains attached to the labor market when it is shown that he or she is actively participating in a job location service or a Board-approved vocational rehabilitation … , we find that the Board’s determination here — that by relying solely on an unfunded training program, claimant was not actively participating in vocational rehabilitation and had voluntarily removed himself from the labor market — is supported by substantial evidence and will not be disturbed … .

… [A] “claimant who has a permanent partial disability may nonetheless be classified as totally industrially disabled where the limitations imposed by the work-related disability, coupled with other factors, such as limited educational background and work history, render the claimant incapable of gainful employment” … . While the Board’s determination regarding a total industrial disability will be upheld if supported by substantial evidence ,,, , “Workers’ Compensation Law § 23 requires the Board to include in its decision a statement of facts which formed the basis of its action on the issues raised” … .

Here, the WCLJ found a lack of total industrial disability based solely upon claimant’s failure to seek employment after his accident, with no discussion of the relevant factors relating to a total industrial disability. Matter of Walker v Darcon Constr. Co., 2016 NY Slip Op 05888, 3rd Dept 8-25-16

 

WORKERS’ COMPENSATION LAW (CLAIMANT DID NOT DEMONSTRATE SUFFICIENT ATTEMPTS TO RETURN TO WORK TO WARRANT BENEFITS; TOTAL INDUSTRIAL DISABILITY CLAIM SENT BACK, JUDGE AND BOARD FAILED TO DISCUSS THE RELEVANT FACTORS IN THE DENIAL OF THAT CLAIM)

POLICE OFFICER’S SLIP AND FALL DURING A BURGLARY INVESTIGATION NOT AN ACCIDENT.

The Third Department determined the police officer’s slip and fall on a wet stair was not an accident entitling him to accidental disability retirement benefits:

Petitioner’s search of the residence following the burglary was a part of his routine duties as a police officer. He acknowledged that it was lightly raining when he conducted the search and, although he did not see water pooling on the stairs, he believed that they were wet. He stated that he did not realize that the stairs were slippery until his foot slipped on the top stair. Notwithstanding this, petitioner could have reasonably anticipated the slippery condition of the stairs under the circumstances presented … . Matter of Magistro v DiNapoli, 2016 NY Slip Op 05893, 3rd Dept 8-25-16

RETIREMENT AND SOCIAL SECURITY LAW (POLICE OFFICER’S SLIP AND FALL DURING A BURGLARY INVESTIGATION NOT AN ACCIDENT)/POLICE OFFICERS (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICE OFFICER’S SLIP AND FALL DURING A BURGLARY INVESTIGATION NOT AN ACCIDENT)/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (POLICE OFFICER’S SLIP AND FALL DURING A BURGLARY INVESTIGATION NOT AN ACCIDENT)

HEARING OFFICER APPLIED THE WRONG REVIEW STANDARD, NEW HEARING ORDERED.

The Third Department annulled the determination and sent the matter back for a new hearing because the hearing officer applied the wrong legal standard. The matter concerned a police officer seeking accidental disability retirement benefits:

… [T]he Hearing Officer applied the incorrect legal standard in rendering her decision. Specifically, the Hearing Officer confined her analysis to whether the initial determination was supported by substantial evidence, rather than undertaking a “‘redetermination'” and exercising “‘the same powers upon such hearing as upon the original application'” … . As this Court recently noted in Matter of DeMaio v DiNapoli (137 AD3d 1545, 1545-1546 [2016]), such deficiency constitutes an error of law requiring annulment of the determination. Matter of Bodenmiller v DiNapoli, 2016 NY Slip Op 05894, 3rd Dept 8-25-16

RETIREMENT AND SOCIAL SECURITY LAW (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, HEARING OFFICER APPLIED THE WRONG REVIEW STANDARD, NEW HEARING ORDERED)/POLICE OFFICERS (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, HEARING OFFICER APPLIED THE WRONG REVIEW STANDARD, NEW HEARING ORDERED)/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (POLICE OFFICERS,  HEARING OFFICER APPLIED THE WRONG REVIEW STANDARD, NEW HEARING ORDERED)

DESPITE REGISTERING TO VOTE IN WASHINGTON DC, CANDIDATE FOR STATE SENATE MET NEW YORK’S RESIDENCY REQUIREMENTS.

[REVERSED BY COURT OF APPEALS—SEE AUGUST 29 “JUST RELEASED’ PAGE] The Third Department, over a two-justice dissent, reversing Supreme Court, determined that a candidate for State Senator (Glickman) met the five-year New York residency requirement, despite Glickman’s having registered to vote in Washington D.C. in 2014:

… [T]estimony presented at the hearing, which Supreme Court found credible, established that Glickman left his father’s home in Tonawanda, New York in 2007 in order to attend college and graduate school in Maryland and, eventually, moved to the Washington, D.C. area. During this time, Glickman returned to his father’s home multiple times a year. He kept personal belongings at the Tonawanda home and continued to use that mailing address for his driver’s license, credit card and bank statements, and other bills. Glickman also retained his doctor and dentist in New York during the period in question, as well as maintained his membership in a New York synagogue, where he participated in services, including being the Shofar blower in the Jewish New Year services each year since 2007. Following the purchase of a vehicle in 2013, Glickman stored that vehicle in his father’s garage during the winter months.

From October 2013 until March 2015, Glickman lived in a “community organizer’s house” in Washington, D.C., during which time he was employed on a yearly basis with a consulting firm and as a part-time high school teacher. Glickman testified that, although the better job opportunities remained in Washington, D.C., he was looking to return to New York. In March 2015, Glickman returned to his Tonawanda home and, in May 2015, he re-registered to vote there. In October 2015, Glickman moved and changed his voter registration to 207 Milburn Street in Rochester, New York, where he has signed two consecutive leases. Glickman bought furniture for his home on Milburn Street, paid utilities and had bills sent there, and changed the address on his license to that address.

Under the circumstances here, the evidence adduced regarding compliance with the five-year residency requirement demonstrates Glickman’s “legitimate, significant and continuing attachments” in order to establish New York as his residence for Election Law purposes … . Even if Glickman had registered and voted in Washington, D.C., based on how New York courts have interpreted Election Law § 1-104 (22), that, in and of itself, does not demonstrate as a matter of law that he intended to abandon his New York residence at the precise point of registering … . Because objectors failed to establish by clear and convincing evidence any “aura of sham” in Glickman’s electoral residency for the purpose of obtaining the candidacy … , the petitions should not have been invalidated. Matter of Glickman v Laffin, 2016 NY Slip Op 05841, 3rd Dept 8-18-16

ELECTION LAW (DESPITE REGISTERING TO VOTE IN WASHINGTON DC, CANDIDATE FOR STATE SENATE MET NEW YORK’S RESIDENCY REQUIREMENTS)/RESIDENCY (ELECTION LAW, DESPITE REGISTERING TO VOTE IN WASHINGTON DC, CANDIDATE FOR STATE SENATE MET NEW YORK’S RESIDENCY REQUIREMENTS)

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GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA.

The Third Department, over an extensive dissent, determined: (1) a claim of grand juror bias is forfeited by a guilty plea; and (2) erroneous advice from defense counsel indicating the issue was appealable the guilty plea provided defendant with a ground for moving to withdraw his plea:

Inasmuch as defendant’s misunderstanding as to his ability to appeal the juror bias issue was brought to County Court’s attention at sentencing, we find that defendant’s challenge to the voluntariness of his plea has been sufficiently preserved for our review … , notwithstanding the absence of an appropriate postallocution motion. Once County Court learned that defendant had been given erroneous advice by counsel, the court should have conducted a further inquiry to ascertain whether defendant wished to go forward with the plea … . Absent such inquiry by County Court, and in light of the fact that the record otherwise presents “a genuine issue of fact as to the knowing, intelligent and voluntary nature of defendant’s guilty plea” … , this matter must be remitted to County Court to afford defendant an opportunity to either accept the plea that was offered or move to withdraw his plea … . People v Clark, 2016 NY Slip Op 05831, 3rd Dept 8-18-16

CRIMINAL LAW (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)/APPEALS (CRIMINAL LAW, (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)/ATTORNEYS (CRIMINAL LAW, (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)

LICENSED CREATIVE ARTS THERAPIST WAS AN EMPLOYEE ENTITLED TO BENEFITS.

The Third Department determined that claimant, a licensed creative arts therapist, was an employee of CompassionNet, which provides home care to sick and terminally ill children:

… [T]he record evidence demonstrates, that while claimant was not required to undergo any training, she submitted a résumé and went through an interview process that was several hours in duration. Upon being selected for placement on a panel of therapists, claimant signed an agreement identifying her as an independent contractor; however, that agreement required claimant to adhere to policies established by CompassionNet and prohibited her from employing or subcontracting another therapist in her place without the prior written consent of CompassionNet. A schedule attached to the agreement unilaterally established the fees that clients would be charged for claimant’s services and the amounts that she would be reimbursed for her travel expenses, including parking and tolls. Although claimant could decline a particular assignment, the agreement provided that, upon being assigned, a case manager would establish the visit frequency and the duration and time of day that claimant would provide her services, and required claimant to submit documentation to CompassionNet within 72 hours of providing services and invoices in a predetermined format at least monthly. To that end, claimant was paid for her services regardless of whether CompassionNet received payment from, or on behalf of, the client. While CompassionNet required claimant to maintain her own professional liability insurance, claimant explained that she was never self-employed as a creative arts therapist and that she did not provide her services for any other entity during the time period in question. Matter of Kliman (Genesee Region Home Care Assn., Inc. — Commissioner of Labor), 2016 NY Slip Op 05680, 3rd Dept 7-28-16

UNEMPLOYMENT INSURANCE (LICENSED CREATIVE ARTS THERAPIST WAS AN EMPLOYEE ENTITLED TO BENEFITS)

HEARING OFFICER SHOULD HAVE INQUIRED FURTHER INTO INMATE’S REFUSAL TO TESTIFY IN PETITIONER’S HEARING, NEW HEARING ORDERED.

The Third Department determined petitioner was entitled to a new hearing. An inmate petitioner wished to call as a witness refused to testify, giving a reason which was on its face untrue. In that circumstance, the hearing officer was obligated to inquire further into the reason for the inmate’s refusal:

During the disciplinary hearing, petitioner requested the testimony of the other inmate who was present in the room at the time of the incident. The Hearing Officer contacted that inmate, who refused to testify and executed a refusal form stating, “I know nothing.” This statement, however, is belied by evidence in the record. According to the unusual incident report, the potential inmate witness informed correction officers that petitioner “stabbed [the victim] with the weapon that was found in the garbage can.” Notably, the Hearing Officer specifically referenced the witness’s account of the incident in his statement of the evidence that he relied on in making the determination of guilt. Inasmuch as evidence in the record “casts doubt on the authenticity of the reason[] given” for the witness’s refusal … , and there is nothing in the record indicating that the Hearing Officer made any further inquiry, we find that petitioner’s right to call witnesses was violated … . Insofar as the Hearing Officer articulated a good-faith reason for the denial of the witness, “this amounts to a regulatory violation requiring that the matter be remitted for a new hearing” … . Matter of Peterson v Annucci, 2016 NY Slip Op 05681, 3rd Dept 7-28-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER SHOULD HAVE INQUIRED FURTHER INTO INMATE’S REFUSAL TO TESTIFY IN PETITIONER’S HEARING, NEW HEARING ORDERED)/INMATES (HEARING OFFICER SHOULD HAVE INQUIRED FURTHER INTO INMATE’S REFUSAL TO TESTIFY IN PETITIONER’S DISCIPLINARY HEARING, NEW HEARING ORDERED)

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