| Matter of Viig (Hello World Language Ctr., Inc.—Commissioner ofLabor) |
| 2009 NY Slip Op 06747 [66 AD3d 1064] |
| October 1, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Kristen M. Viig, Respondent. HelloWorld Language Center, Inc., Appellant; Commissioner of Labor,Respondent. |
—[*1] Cynthia Feathers, Saratoga Springs, for Kristen M. Viig, respondent. Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), forCommissioner of Labor, respondent.
Mercure, J.P. Appeal from a decision of the Unemployment Insurance Appeal Board, filedDecember 20, 2007, as resettled by a decision filed December 28, 2007, which ruled that HelloWorld Language Center, Inc. was liable for additional unemployment insurance contributionsbased upon remuneration paid to claimant and others similarly situated.
Claimant worked for Hello World Language Center, Inc. as a part-time instructor for severalmonths in 2004. She applied for unemployment insurance benefits the following year after herjob with a subsequent employer ended. The Commissioner of Labor determined that Hello Worldwas liable for additional unemployment insurance contributions because claimant and all othersimilarly situated part-time instructors were employees rather than independent contractors.Hello World's objection to that determination was sustained by an Administrative Law Judgefollowing a hearing. Upon review, the Unemployment Insurance Appeal Board reversed,prompting this appeal.[*2]
We affirm. A determination identifying professionalworkers as employees will be upheld if substantial evidence in the record demonstrates that theemployer had "control over important aspects of the services performed" (Matter ofConcourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]), "even if theworkers retain control over their work product and the means of crafting it" (Matter of TroyPubl. Co. [Hudacs], 228 AD2d 877, 878 [1996], lv denied 89 NY2d 803 [1996]).Here, claimant testified that she was subjected to a performance review and that Hello Worldprovided her with feedback after observing her in the classroom. She was required to maintain adaily teaching log, which reflected what materials she covered in a given class and providedverification to Hello World as to who was present, including claimant. She was also required tosubmit a time sheet to Hello World, which would pay her on an hourly rate out of funds that itcollected directly from students. Finally, Hello World provided a stipend for class materials andthe use of a photocopier, and established the schedule of classes that claimant taught.Accordingly, "notwithstanding the existence of a written contract identifying claimant as anindependent contractor and other evidence in the record that could support a contrary result"(Matter of Wright [Central Transp., Inc.—Commissioner of Labor], 58 AD3d 988,989-990 [2009], lv dismissed 12 NY3d 843 [2009]), substantial evidence supports theBoard's determination that an employer-employee relationship existed (Matter of Fitness Plus[Commissioner of Labor], 293 AD2d 909, 910 [2002]). Hello World's remaining contentionshave been reviewed and are determined to be without merit.
Lahtinen, Kane, McCarthy and Garry, JJ., concur. Ordered that the decision is affirmed,without costs.