| Matter of Leazard (TestQuest, Inc.\MCommissioner ofLabor) |
| 2010 NY Slip Op 04677 [74 AD3d 1414] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Shanick Leazard et al., Respondents.TestQuest, Inc., Appellant; Commissioner of Labor, Respondent. |
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Spain, J. Appeals from six decisions of the Unemployment Insurance Appeal Board, filedAugust 12, 2008, which ruled that TestQuest, Inc. was liable for unemployment insurancecontributions on remuneration paid to claimants and others similarly situated.
The New York City Department of Education (hereinafter Department) administerssupplemental educational services in accordance with the Federal No Child Left Behindprogram. As an approved provider of such services, TestQuest, Inc. operates pursuant to acontract with the Department and retains tutors, like claimants, who meet with eligible studentsoutside of school hours to conduct lessons in English and mathematics. In separate decisions, theUnemployment Insurance Appeal Board determined that an employer-employee relationshipexisted between TestQuest and claimants, as well as other similarly situated tutors, and assessedTestQuest additional unemployment insurance contributions. TestQuest appeals.
A determination as to whether an employer-employee relationship exists "involves an [*2]assessment of the extent to which the alleged employer exercisescontrol over the results and, more importantly, the means by which those results are produced"(Matter of Omnipop, Inc.[Commissioner of Labor], 68 AD3d 1575, 1576 [2009]). Although such a determinationwill be upheld if it is supported by substantial evidence (see Matter of Chorba [Sterling Testing Sys., Inc.—Commissioner ofLabor], 54 AD3d 1091, 1092 [2008]), here, we agree with TestQuest's claim that therecord lacks indicia demonstrating the requisite level of control. Rather, the proof reflectspolicies consistent with Department regulations governing the conduct of approved supplementaleducation service providers such as TestQuest (see generally Matter of International StudentExch. [Commissioner of Labor], 302 AD2d 834, 835-836 [2003]; Matter of McCabe &Willig Realty [Ross], 80 AD2d 935, 936 [1981]). In that regard, TestQuest supplies its tutorswith staff identification cards and requires that they submit time sheets, complete studenteducation plans and adhere to a code of conduct and ethical guidelines because such practicesare prerequisites to becoming an approved supplemental educational service provider(see NYC Department of Education, No Child Left Behind Supplemental EducationalServices 2009-2010 Policy and Implementation Manual for Providers and SchoolAdministrators). Indeed, the forms designated to be used as time sheets and education plans areissued to the provider by the Department, and the Department mandates that any individualoffering supplemental educational services on behalf of an approved provider act in accordancewith the Department's Professional Code of Conduct and Ethics contained within itsSupplemental Educational Services Policy and Implementation Manual.
Moreover, TestQuest does not assign tutors to students (cf. Matter of Faculty TutoringServ. [Sweeney], 244 AD2d 744, 744 [1997]) or determine when,[FN*] whether or how tutors conduct their lessons. Instead, tutors themselves select students from adatabase provided to TestQuest by the Department based on geographic or schedulingavailability. Then, a tutor contacts the child's parent(s) or guardian(s) to schedule tutoringsessions. Aside from a one-day informational meeting intended to instruct tutors on how tocomplete the forms provided by the Department, tutors receive no training, they are not requiredto use any specific materials and there is no designated curriculum. Notably, tutors are neverobserved while tutoring and do not receive feedback (cf. Matter of Viig [Hello World Language Ctr., Inc.—Commissionerof Labor], 66 AD3d 1064, 1065 [2009]; Matter of Fitness Plus [Commissioner ofLabor], 293 AD2d 909, 910 [2002]), they are not prohibited from working for TestQuest'scompetitors (cf. Matter of Montalto [Early Intervention Ctr. ofSuffolk—Commissioner of Labor], 263 AD2d 736, 737 [1999]) and they are notreimbursed for expenses (cf. Matter ofInterlandi [Cremosa Foods Co., LLC—Commissioner of Labor], 70 AD3d 1150,1151 [2010]; Matter of Franks [McClure—Commissioner of Labor], 255 AD2d844, 845 [1998]). Accordingly, while the factors cited by the Board—such as TestQuest'spayment of tutors or its handling of parental complaints—constitute some evidence ofincidental control, the record does not demonstrate sufficient evidence of overall control overimportant aspects of the services rendered so as to reflect an employer-employee relationship(see Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725, 726 [1984]; Matter ofOmnipop, Inc. [Commissioner of Labor], 68 AD3d at 1577; Matter of Rodriguez [2020Video Voice Data, Ltd.—Commissioner of Labor], 58 AD3d 929, 930 [2009];Matter of International Student Exch. [Commissioner of Labor], 302 AD2d at 835-836).
In light of our holding, we need not discuss TestQuest's due process argument.[*3]
Cardona, P.J., Stein, McCarthy and Egan Jr., JJ., concur.Ordered that the decisions are reversed, without costs, and matter remitted to the UnemploymentInsurance Appeal Board for further proceedings not inconsistent with this Court's decision.
Footnote *: However, lessons must takeplace outside of regular school hours.