| Matter of Omnipop, Inc. (Commissioner of Labor) |
| 2009 NY Slip Op 10010 [68 AD3d 1575] |
| December 31, 2009 |
| Appellate Division, Third Department |
| In the Matter of Omnipop, Inc., Appellant. Commissioner of Labor,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), forrespondent.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 19, 2008,which assessed Omnipop, Inc. for additional unemployment insurance contributions.
Omnipop, Inc. is engaged in the business of booking entertainers for single-performanceevents by clients such as clubs and schools. The Unemployment Insurance Appeal Board foundthat the entertainers were Omnipop's employees and assessed it for additional unemploymentinsurance contributions. Omnipop now appeals, and we reverse.
The existence of an employer-employee relationship is a factual determination for the Boardthat will not be disturbed if supported by substantial evidence (see Matter of Chorba [SterlingTesting Sys., Inc.—Commissioner of Labor], 54 AD3d 1091, 1092 [2008]; Matterof Perdue [Environmental Compliance, Inc.—Commissioner of Labor], 47 AD3d1139, 1140 [2008]). Such a determination involves an assessment of the extent to which thealleged employer exercises control over the results and, more importantly, the means by whichthose results are produced (see Matter of Rodriguez [2020 Video Voice Data,Ltd.—Commissioner of Labor], 58 AD3d 929, 929 [2009]; Matter of Chorba[Sterling Testing Sys., Inc.—Commissioner of Labor], 54 AD3d at 1092).
Here, we do not find sufficient indicia of control by Omnipop to support the Board's findingof an employer-employee relationship. A performer is free to reject a booking opportunityreferred by Omnipop. Indeed, Omnipop plays no role in organizing any [*2]performance, and the client and performer negotiate directly withregard to the fee to be paid, with any written contract being solely between them. Moreover, thelanguage of a sample contract prepared by Omnipop states that the performer has total controlover his or her performance and that Omnipop disavows any liability for a breach by either theclient or the artist. Once a booking is made, Omnipop receives a deposit from the client andplaces it in an escrow account. At the conclusion of the performance, the client pays theperformer the balance due and, if the client reneges, the performer does not get paid. Afterward,Omnipop releases the deposit, less a commission owed Omnipop for booking, the amount ofwhich is negotiated individually with each performer. Omnipop does not reimburse performersfor any expenses incurred, nor does it maintain any type of insurance on the performers. Finally,Omnipop's representatives rarely attend, and have no control over, a performance that Omnipophas booked.
Omnipop, in short, exercises virtually no control over either the results of the performancesor the means used to achieve those results. While Omnipop did make referrals, required a depositto secure a performer for an event and fielded client complaints, given the absence of otherindicia of control, such were "nothing more than a testament to [Omnipop's] intended function asan intermediary between" the performer and client (Matter of Pavan [UTOG 2-Way RadioAssn.—Hartnett], 173 AD2d 1036, 1038 [1991], lv denied 78 NY2d 857[1991]; see Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725, 726 [1984]).Accordingly, substantial evidence does not support the Board's finding that the performers wereemployees of Omnipop (see Matter of Rodriguez [2020 Video Voice Data,Ltd.—Commissioner of Labor], 58 AD3d at 930; Matter of HTA of N.Y.[Commissioner of Labor], 255 AD2d 733, 733-734 [1998]; cf. Matter of DeSantis[Commissioner of Labor], 54 AD3d 1103, 1104-1105 [2008]; Matter of Faze 4Orchestras [Sweeney], 245 AD2d 929, 929 [1997]; Matter of Captain Kishka[Hartnett], 158 AD2d 814, 815-816 [1990], lv denied 76 NY2d 708 [1990]).
Mercure, J.P., Spain, Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the decision isreversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board forfurther proceedings not inconsistent with this Court's decision.