| Matter of Chorba (Sterling Testing Sys., Inc.\MCommissioner ofLabor) |
| 2008 NY Slip Op 06776 [54 AD3d 1091] |
| September 11, 2008 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Ellen T. Chorba, Respondent. SterlingTesting Systems, Inc., Appellant; Commissioner of Labor,Respondent. |
—[*1] James W. Cooper, Warrensburg, for Ellen T. Chorba, respondent. Andrew M. Cuomo, Attorney General, New York City (Marjorie S. Leff of counsel), forCommissioner of Labor, respondent.
Appeals from two decisions of the Unemployment Insurance Appeal Board, filed June 14,2007, which, upon reconsideration, adhered to its prior decisions ruling that claimant was entitledto receive unemployment insurance benefits and that Sterling Testing Systems, Inc. was liable foradditional unemployment insurance contributions on remuneration paid to claimant and otherssimilarly situated.
Sterling Testing Systems, Inc. operates a preemployment screening service for clientsseeking to hire employees. In connection therewith, Sterling retains researchers, like claimant, toconduct criminal background checks of prospective employment candidates through searchingcourthouse records. After claimant stopped working for Sterling, she applied for unemploymentinsurance benefits. The Unemployment Insurance Appeal Board found that she was entitled toreceive benefits and that Sterling was liable for additional unemployment insurance contributionspaid to claimant and others similarly situated. The Board adhered to its decisions uponreconsideration, and Sterling now appeals.
Sterling argues that claimant and the other similarly situated criminal researchers are not itsemployees, but rather are independent contractors who are not entitled to receive [*2]unemployment insurance benefits. Preliminarily, we note that theexistence of an employment relationship is a factual issue for the Board to resolve and itsdecision will be upheld if supported by substantial evidence (see Matter of ConcourseOphthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of Saalfield [Eber Bros. Wine &Liquor Co.—Commissioner of Labor, 37 AD3d 928, 929 [2007]). "Crucial tosuch a determination is whether the alleged employer exercised control over the results or, moreimportantly, the means by which those results were produced" (Matter of MacFarlane [Aid Assn. forLutherans Corp.—Commissioner of Labor], 35 AD3d 1076, 1077 [2006] [citationomitted]; see Matter of Lombard [SOHDistrib. Co., Inc.—Commissioner of Labor, 52 AD3d 981, 982 [2008]).
In the case at hand, Sterling directed the researchers to work at courthouses in specificgeographic areas, required them to be available during courthouse hours, provided them withtraining on its web-based interface, through which the researchers transmitted their informationto Sterling, and reimbursed them for copying expenses. In addition, the researchers were paid bySterling regardless of when it received payment from its clients. Notwithstanding the existence ofcontrary evidence adduced at the hearing, the foregoing provides substantial evidence supportingthe Board's finding of an employment relationship (see e.g. Matter of Michaud [CardinalClaim Servs.—Sweeney], 232 AD2d 806 [1996], lv denied 89 NY2d 809[1997]). The existence of written agreements designating claimant and the other researchers asindependent contractors does not compel a contrary conclusion (see Matter of Noel [Life Alert EmergencyResponse, Inc.—Commissioner of Labor], 38 AD3d 1082, 1084 [2007]; Matter of Kelly [Frank Gallo,Inc.—Commissioner of Labor], 28 AD3d 1044, 1045 [2006], lv dismissed7 NY3d 844 [2006]). Sterling's remaining contentions have been considered and are unavailing.
Mercure, J.P., Peters, Carpinello, Kane and Stein, JJ., concur. Ordered that the decisions areaffirmed, without costs.