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In re the Claim of Chan
Citations: 128 A.D.3d 1124; 8 N.Y.S.3d 480
Court: Appellate Division of the Supreme Court of the State of New York; May 7, 2015; New York; State Appellate Court
The Unemployment Insurance Appeal Board ruled that Confero Consulting Associates, Inc. is liable for unemployment insurance contributions on payments made to mystery shoppers, including the claimant, who worked for Confero from 2004 to 2009. Initially, the Department of Labor classified the claimant as an employee, but an Administrative Law Judge later reversed this, determining the claimant was an independent contractor. The Board ultimately reinstated the initial classification of the claimant as an employee. Confero appealed, asserting that the determination of an employer-employee relationship is a factual issue for the Board, which should be upheld if supported by substantial evidence. The criteria for establishing such a relationship include whether an employer exercises control over the results or the means to achieve them. In this case, the evidence indicated that Confero exercised only incidental control, as the claimant had significant autonomy in choosing assignments, could send substitutes to perform tasks, and was not required to maintain a minimum workload or adhere to a fixed schedule. Confero did not provide training, equipment, or mandate attendance at meetings, allowing the claimant to work for competitors. The Board's conclusion that an employer-employee relationship existed was therefore deemed unsupported by substantial evidence. Claimant's requirement to submit a questionnaire to Confero's editorial staff after completing assignments, which was reviewed for completeness and scored, is deemed a standard condition for proper assignment completion. This requirement does not distinguish between independent contractors and employees, referencing the case Matter of Hertz Corp. In light of this, there is insufficient evidence to support the Board's classification of the claimant as an employee of Confero. Unlike the case of Matter of Pozarycki, where the claimant was classified as an employee due to assignment provision and travel expense reimbursement, Confero did not provide assignments or reimbursements in this instance. The decisions are reversed, and the matter is remitted to the Unemployment Insurance Appeal Board for further proceedings that align with this Court’s ruling. The discussion does not address Confero's argument regarding the Board's departure from precedent in a related claim.