| Matter of Perdue (Environmental Compliance, Inc.\MCommissioner ofLabor) |
| 2008 NY Slip Op 00392 [47 AD3d 1139] |
| January 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Janet M. Perdue, Respondent.Environmental Compliance, Inc., Appellant; Commissioner of Labor,Respondent. |
—[*1] Cynthia Feathers, Albany, for Janet M. Perdue, respondent. Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), forCommissioner of Labor, respondent.
Rose, J. Appeals from two decisions of the Unemployment Insurance Appeal Board, filedApril 27, 2006, which, upon reconsideration, adhered to its prior decisions ruling thatEnvironmental Compliance, Inc. was liable for additional unemployment insurance contributionsbased upon remuneration paid to claimant and others similarly situated.
Claimant conducted safety training sessions on behalf of Environmental Compliance, Inc.(hereinafter ECI) for two of its clients. After claimant resigned and she worked for anotheremployer for a brief time, she applied for unemployment insurance benefits. An initialdetermination was issued finding that claimant was an employee of ECI and that ECI was liablefor additional contributions based on remuneration paid to claimant. ECI objected and, followinga hearing, the Administrative Law Judge sustained the initial determination, finding that anemployer-employee relationship existed and that claimant was not subject to the disqualificationprovision of Labor Law § 593 (1) (a). The Unemployment Insurance Appeal [*2]Board affirmed and, upon reconsideration, adhered to its priordecisions. ECI now appeals.
Whether an employer-employee relationship exists is a factual question to be resolved by theBoard and its determination in that regard will be upheld so long as it is supported by substantialevidence, even though there may be evidence in the record that could have supported a contraryconclusion (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734,736 [1983]; Matter of Noel [Life AlertEmergency Response, Inc.—Commissioner of Labor], 38 AD3d 1082, 1083[2007]). "While all aspects of the arrangement must be examined, the primary focus is 'whetherthe purported employer exercises control over the results produced or, more importantly, themeans by which those results are produced' " (Matter of Saalfield [Eber Bros. Wine & Liq. Co.—Commissioner ofLabor], 37 AD3d 928, 929 [2007], quoting Matter of Medical Transcription Plus[Commissioner of Labor], 302 AD2d 689, 690 [2003]).
Here, the record includes evidence that ECI exercised the requisite control over claimant'swork. ECI established claimant's rate of pay (see Matter of Saalfield [Eber Bros. Wine & Liq.Co.—Commissioner of Labor], 37 AD3d at 929; Matter of Kelly [Frank Gallo, Inc.—Commissioner of Labor], 28AD3d 1044, 1044 [2006], appeal dismissed 7 NY3d 844 [2006]) and reimbursed herfor expenses (see Matter ofO'Neil-Haight [County of Yates—Commissioner of Labor], 34 AD3d 1041, 1042[2006]; Matter of Aubrey [NGT Lib.,Inc.—Commissioner of Labor], 8 AD3d 803, 804 [2004]). Claimant was alsoprohibited from engaging in activities in competition with ECI for one year after the parties'agreement terminated (see Matter ofMacFarlane [Aid Assn. for Lutherans Corp.—Commissioner of Labor], 35 AD3d1076, 1077 [2006]; Matter of Aubrey [NGT Lib., Inc.—Commissioner ofLabor], 8 AD3d at 804). Additionally, claimant was provided business cards bearing ECI'sname (see Matter of JoonBug Prods.,Inc. [Commissioner of Labor], 35 AD3d 997, 998 [2006]; Matter of Greenspan [Adco Paper &Packaging Co.—Commissioner of Labor], 31 AD3d 1092, 1093 [2006]).Moreover, ECI scheduled claimant's sessions with one of the two clients she trained (seeMatter of Rivera [AIA Envtl. Corp.], 262 AD2d 898, 899 [1999]) and set the fee charged toall clients for the training sessions (see Matter of Noel [Life Alert Emergency Response,Inc.—Commissioner of Labor], 38 AD3d at 1083-1084). ECI also provided claimantwith basic training materials (see Matter of Aubrey [NGT Lib., Inc.—Commissioner ofLabor], 8 AD3d at 804) and required the submission of claimant's time sheets (see Matterof O'Neil-Haight [County of Yates—Commissioner of Labor], 34 AD3d at 1042).Under these circumstances, we find that substantial evidence supports the finding of anemployer-employee relationship despite other evidence in the record to the contrary (see Matter of Mirsky [Twin-TexCorp.—Commissioner of Labor], 38 AD3d 1029, 1030 [2007]; Matter ofAubrey [NGT Lib., Inc.—Commissioner of Labor], 8 AD3d at 804).
Furthermore, as the record indicates that claimant, in her employment subsequent toresigning from her agreement with ECI, earned $2,115, which is more than five times her weeklybenefit rate of $405, the Board's determination that claimant is not disqualified from receivingunemployment insurance benefits pursuant to Labor Law § 593 (1) (a) was proper and willnot be disturbed (see Matter of Daley[Urban Justice Ctr.—Commissioner of Labor], 42 AD3d 839, 840 [2007]). Wehave considered ECI's remaining arguments and find them to be without merit.
Mercure, J.P., Spain, Lahtinen and Kane, JJ., concur. Ordered that the decisions are affirmed,without costs.