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FITNESS INSTRUCTOR NOT AN EMPLOYEE.

The Third Department determined claimant, a fitness instructor at a senior living facility (Classic Riverdale), was not an employee, and was not, therefore, entitled to unemployment insurance benefits:

 

After learning from a client that Classic Riverdale was seeking an exercise instructor, claimant contacted the facility’s executive director and offered his services. Claimant and the director negotiated a flat fee for each class and set a schedule for the classes. Classic Riverdale did not provide any training or require claimant to wear a uniform. He was not required to punch in or out on the employee time clock, did not use the employee facilities, such as the locker room or cafeteria, and was not invited to attend employee meetings. Claimant alone determined the content of the classes and method of instruction … . There was no limitation placed on the amount of time that claimant could miss from work and his attendance was not monitored. He was never given a performance evaluation and was not subject to any form of discipline … . Claimant also maintained his own liability insurance … . Notably, in addition to providing classes at the facility, claimant also provided services to other clients and solicited the facility’s residents for private, one-on-one classes without any objection from Classic Riverdale … . Matter of Cohen (Classic Riverdale, Inc.–Commissioner of Labor), 2016 NY Slip Op 01222, 3rd Dept 2-18-16

 

UNEMPLOYMENT INSURANCE (FITNESS INSTRUCTOR NOT AN EMPLOYEE)

OIL-SPILL DAMAGES INVESTIGATOR WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT BENEFITS.

The Third Department determined claimant, who was hired by Guidepost to investigate damages claims relating to an oil spill, was an employee entitled to unemployment insurance benefits:

 

… [T]he record contains substantial evidence that Guidepost exercised the requisite control to establish an employer-employee relationship. Claimant received three days of training on how the written reports of his investigations were to be drafted and was reimbursed for the related travel expenses. Guidepost provided the claims to be investigated to claimant, who worked from home in New York. Claimant used reports filed by Guidepost’s field investigators in Louisiana in evaluating the veracity of the damage claims. Claimant submitted his final written reports to Guidepost, which forwarded them on to its client. Guidepost handled all of the client’s complaints, and the client was not aware of who had actually prepared the report. Claimant and Guidepost entered into a written agreement, pursuant to which claimant was paid a set hourly rate and was required to submit monthly invoices to Guidepost containing a log of times and dates and a detailed description of the work performed. Guidepost agreed to pay all approved business expenses. Guidepost also placed restrictions on claimant’s solicitation of or provision of services to Guidepost’s clients during his employment and for a year following separation and required him to adhere to a code of conduct.  Matter of Zaharuk (Guidepost Solutions LLC–Commissioner of Labor), 2016 NY Slip Op 01028, 3rd Dept 2-11-16

 

UNEMPLOYMENT INSURANCE (OIL-SPILL DAMAGES INVESTIGATOR WAS AN EMPLOYEE)

MUSIC TEACHERS ARE EMPLOYEES, NOT INDEPENDENT CONTRACTORS.

The Third Department determined a business, Eray Inc., which matched students with music teachers, was required to pay unemployment insurance contributions. The court affirmed the Unemployment Insurance Appeal Board’s finding that the musicians were employees, not independent contractors:

 

… [W]here the provision of professional services is involved, the relevant inquiry becomes “whether the purported employer retains overall control of important aspects of the services performed” … . The “overall control” test “has been applied to musicians who ‘do not easily lend themselves to direct supervision or control'” … .

During the period in question, Eray matched students with music instructors based upon its assessment of the students’ needs and the instructors’ qualifications, scheduled the lessons and followed up with both the instructors and the students to ensure that they were matched appropriately. While Eray did not dictate the curriculum or the method of instruction, it rented and provided the space in which the teachers almost exclusively conducted their lessons, equipped the space with chairs, music stands, a piano, a drum set and a collection of music books that could be used during those lessons, billed the students, paid the teachers an agreed-upon portion of the fee collected from each student and fielded student complaints. In addition, Eray required the teachers to submit any scheduling changes to it for its approval and notify it if they were going to be late to a lesson or send a substitute in their stead and, when requested, Eray would arrange for substitute instructors. Furthermore, although Eray maintained that the agreements were not enforced, several of the instructors signed agreements that, among other things, prohibited them from contacting students directly or providing private lessons to their students in the two years following their resignation. Matter of Eray Inc. (Commissioner of Labor), 2016 NY Slip Op 01024, 3rd Dept 2-11-16

 

UNEMPLOYMENT INSURANCE (MUSICIAN/MUSIC TEACHERS ARE EMPLOYEES)

JUDGE IMPOSED RESTITUTION AT SENTENCING WHICH WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE VACATED.

The Third Department vacated defendant’s sentence because restitution was imposed but was not part of the plea agreement. Defendant should have been given the opportunity to withdraw his plea:

 

Inasmuch as the record fails to establish that payment of restitution was part of defendant’s plea agreement, we must agree that County Court erred in imposing the enhanced sentence without giving defendant an opportunity to withdraw his plea … . Accordingly, defendant’s sentence must be vacated and the matter remitted to County Court to either impose the agreed-upon sentence or give defendant the option of withdrawing his plea before imposing the enhanced sentence … . People v Brasmeister, 2016 NY Slip Op 01019, 3rd Dept 2-11-16

 

CRIMINAL LAW (IMPOSING RESTITUTION AT SENTENCING WHICH WAS NOT PART OF THE PLEA AGREEMENT REQUIRED VACATION OF THE SENTENCE)/RESTITUTION (IMPOSING RESTITUTION AT SENTENCING WHICH WAS NOT PART OF THE PLEA AGREEMENT REQUIRED VACATION OF THE SENTENCE)/SENTENCING  (IMPOSING RESTITUTION AT SENTENCING WHICH WAS NOT PART OF THE PLEA AGREEMENT REQUIRED VACATION OF THE SENTENCE)

DEFENDANT ENTITLED TO BE HEARD ON APPLICATION FOR RESENTENCING UNDER DRUG LAW REFORM ACT, DENIAL OF APPLICATION ON THE PAPERS REVERSED.

The Third Department determined denial of defendant’s application for resentencing under the Drug Law Reform Act without allowing defendant to be heard was error:

 

The Drug Law Reform Act of 2009 requires that, upon receipt of an application for resentencing, “the court shall offer an opportunity for a hearing and bring the applicant before it” (L 2004, ch 73, § 23; see CPL 440.46 [3]…). Inasmuch as the record does not reflect that defendant was afforded “an opportunity to be heard on the merits of [his] application,” the order appealed from must be reversed and the matter remitted to County Court so that a new determination can be made on defendant’s application after the proper procedure has been followed … . People v Davis, 2016 NY Slip Op 01006, 3rd Dept 2-11-16

 

CRIMINAL LAW (DENIAL OF APPLICATION FOR RESENTENCING UNDER DRUG LAW REFORM ACT REVERSED, DEFENDANT ENTITLED TO BE HEARD)/DRUG LAW REFORM ACT (DENIAL OF APPLICATION FOR RESENTENCING UNDER DRUG LAW REFORM ACT REVERSED, DEFENDANT ENTITLED TO BE HEARD)/SENTENCING (DENIAL OF APPLICATION FOR RESENTENCING UNDER DRUG LAW REFORM ACT REVERSED, DEFENDANT ENTITLED TO BE HEARD)

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POLICE DISCIPLINE PROPERLY CONTROLLED BY COLLECTIVE BARGAINING AGREEMENT, DESPITE STATUTORY PROVISION PLACING DISCIPLINE IN THE HANDS OF THE COMMISSIONER.

The Third Department determined that a provision of the Second Class Cities Law specifically allowed the statute to be superseded by subsequent statutes. The Second Class City Law placed police discipline in the hands of the commissioner.  However a subsequently enacted provision of the Civil Services Law (called the Taylor Law) required police discipline to be the subject of a collective bargaining agreement, absent conflicting legislation. The Taylor Law prevailed because of the “planned obsolescence” of the Second Class City Law statute:

 

… [T]he Taylor Law mandates that disciplinary procedures for all public employees be the subject of good faith collective bargaining … . “[Courts] have long recognized the ‘strong and sweeping policy of the State to support collective bargaining under the Taylor Law'” … . Indeed, “the presumption is that all terms and conditions of employment are subject to mandatory bargaining” … . However, because of the “competing policy . . . favoring strong disciplinary authority for those in charge of police forces[, w]here legislation specifically commits police discipline to the discretion of local officials,” the policy favoring collective bargaining will give way to the legislatively established disciplinary procedures … . * * *

… [T]he clear and unambiguous language of Second Class Cities Law § 4 provides the best evidence that the Legislature intended to allow any or all of the provisions of the Second Class Cities Law to be supplanted by later laws applicable to the same subject matter … . Accordingly, we conclude that Second Class Cities Law article 9 does not require “that the policy favoring collective bargaining should give way” … . Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 2016 NY Slip Op 00729, 3rd Dept 2-4-16

 

MUNICIPAL LAW (POLICE DISCIPLINE CONTROLLED BY COLLECTIVE BARGAINING, NOT CONFLICTING STATUTE)/UNIONS (POLICE DISCIPLINE CONTROLLED BY COLLECTIVE BARGAINING, NOT CONFLICTING STATUTE)/STATUTES (PLANNED OBSOLESCENCE OF STATUTE ALLOWED IT TO BE SUPERSEDED BY SUBSEQUENT STATUTE)

CLAIMANT PROPERLY COMPENSATED FOR WORK-RELATED STRESS.

The Third Department determined claimant was properly awarded workers’ compensation benefits for work-related stress. The employer argued the stress was related to warning letters about claimant’s performance, which would not be compensable. One of the warning letters was deemed not to have been issued in good faith. And claimant submitted proof her stress-related symptoms appeared before the warning letters were issued. Claimant was a licensed clinical social worker who had been attacked by a client:

 

Workers’ Compensation Law § 2 (7) precludes claims for mental injuries based upon work-related stress “if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer.” “Whether the employer’s actions constituted a lawful personnel decision undertaken in good faith is a factual issue to be resolved by the Board”  … . * * *

“According deference to the Board’s resolution of witness credibility issues” … , and in light of the evidence that claimant suffers from a mental injury stemming from work-related stress and that she was being treated for the condition prior to the issuance of the warning letters, the Board’s determination that the claim was not barred by Workers’ Compensation Law § 2 (7) is supported by substantial evidence and will not be disturbed … . Further, based upon the foregoing, we find that the Board’s determination that the stress that caused claimant’s injury was greater than that of other similarly situated workers also is supported by substantial evidence … . Matter of Haynes (Catholic Charities), 2016 NY Slip Op 00560, 3rd Dept 1-28-16

WORKERS’ COMPENSATION LAW (AWARD FOR WORK-RELATED STRESS PROPER)/STRESS, WORK-RELATED (WORKERS’ COMPENSATION BENEFITS PROPERLY AWARDED)

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UNEMPLOYMENT INSURANCE EXPERIENCE RATINGS PROPERLY TRANSFERRED TO NEW BUSINESS ENTITIES DOING THE SAME WORK, EMPLOYING SOME OF THE SAME PEOPLE, AND OPERATING FROM THE SAME ADDRESS.

The Third Department determined that the unemployment insurance experience ratings of businesses which had ceased operation and then reopened under new names were properly transferred to the new businesses:

 

Labor Law § 581 (7) (a) (1) states that “[i]f an employer transfers its organization, trade or business, or a portion thereof, to another employer and, at the time of the transfer, there is at least a ten percent common ownership, management or control of the two employers, then the unemployment experience attributable to the transferred organization, trade or business shall be transferred to the employer to whom such organization, trade or business is so transferred,” and “[f]or purposes of this subdivision ‘organization, trade or business’ shall include the employer’s workforce.” Matter of Prod. Processing Inc. (Commissioner of Labor), 2016 NY Slip Op 00565, 3rd Dept 1-28-16

 

UNEMPLOYMENT INSURANCE (EXPERIENCE RATINGS PROPERLY TRANSFERRED TO NEW BUSINESS ENTITIES)/LABOR LAW (UNEMPLOYMENT EXPERIENCE RATINGS PROPERLY TRANSFERRED TO NEW BUSINESS ENTITIES)

CONSULTANT HIRED TO EVALUATE TEACHERS WAS AN EMPLOYEE.

The Third Department determined claimant was an employee of RMC, an educational research firm which contracted with the NYC Department of Education. Pursuant to a “consultancy agreement,” claimant was hired to evaluate teachers who had been given unsatisfactory ratings:

 

… [C]laimant was required as part of RMC’s hiring process to submit an application, undergo an interview and provide references. Once hired and after signing the consultant agreement, he received six hours of training, was paid a hourly rate set by RMC, was expected to work three to four hours per week for a total of 36 weeks during the 10-week assignment and submitted a voucher provided by RMC on the 15th of each month to receive payment for hours worked. Notably, claimant was paid for services rendered regardless of whether RMC received payment from the client. Moreover, RMC’s name appeared at the top of the documents that claimant was required to prepare and it determined their format. Furthermore, during the course of his assignment, claimant interacted with RMC’s project director who reviewed his observation reports for comprehensiveness, clarity, spelling and grammar. Any complaints about claimant’s performance or that of the other peer observers were directed to RMC, and it arranged for a replacement if an assignment could not be completed. Matter of Strauss (Commissioner of Labor), 2016 NY Slip Op 00561, 3rd Dept 1-28-16

 

UNEMPLOYMENT INSURANCE (CONSULTED HIRED TO EVALUATE TEACHERS WAS AN EMPLOYEE)

PART-TIME AEROBICS INSTRUCTOR WAS AN EMPLOYEE.

The Third Department determined a part-time aerobics instructor at a fitness club (Synchronicity) was an employee entitled to unemployment insurance benefits:

 

Here, the evidence in the record reflects that Synchronicity established the fees that members of its fitness club were required to pay for their membership and claimant’s aerobics classes. Members would pay those fees to Synchronicity directly; claimant never collected money from any of the club’s members or charged them for attending her aerobics classes. While there is evidence that claimant’s rate of pay was negotiated, the record also reflects that all instructors at the fitness club were paid the same amount and were directly paid by check from Synchronicity once a week. While claimant would bring some of her own fitness equipment for her classes, including music and Pilates equipment, Synchronicity also provided her with an instruction room and made certain fitness equipment available to her, such as steps and free weights. Further, claimant was not allowed to solicit members of the club to attend classes that she offered at other fitness clubs. Matter of Raynor (Commissioner of Labor) 2016 NY Slip Op 00558, 3rd Dept 1-28-16

 

UNEMPLOYMENT INSURANCE (PART-TIME AEROBICS INSTRUCTOR WAS AN EMPLOYEE)

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