| Matter of Jimenez (C & I Assoc., Inc.\MCommissioner ofLabor) |
| 2010 NY Slip Op 05299 [74 AD3d 1587] |
| June 17, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Vidal A. Jimenez, Respondent. C & IAssociates, Inc., Appellant; Commissioner of Labor, Respondent. |
—[*1] McNamee, Lochner, Titus & Williams, P.C., Albany (Francis J. Smith of counsel), for VidalA. Jimenez, respondent. Andrew M. Cuomo, Attorney General, New York City (Mary Hughes of counsel), forCommissioner of Labor, respondent.
McCarthy, J. Appeals from two decisions of the Unemployment Insurance Appeal Board,filed January 26, 2009, which ruled, among other things, that C & I Associates, Inc. is liable forunemployment insurance contributions on remuneration paid to claimant and others similarlysituated.
C & I Associates, Inc. has a contract to provide residential cable installation services tocustomers of Cablevision Systems, Inc. In addition to hiring employees to install cable, C & Iengaged individuals it called independent contractors. Although C & I began requiring itssubcontractors to sign an agreement that indicated their independent status, claimant worked as asubcontractor without having signed any agreement. When he ceased working for C & I,claimant filed a claim for unemployment insurance benefits. The Commissioner of Laborinitially determined that he was an employee, as were all similarly situated individuals, and thatC & I was liable for unemployment insurance contributions for those individuals. After ahearing, an Administrative Law Judge (hereinafter ALJ) overruled that determination. The [*2]Unemployment Insurance Appeal Board overruled the ALJ'sdecision, finding that claimant and all similarly situated cable installers were employees, makingC & I liable for contributions based on remuneration paid to them. C & I appeals.
We affirm. Whether the cable installers were employees or independent contractors was afactual question for the Board to resolve, based mainly on whether C & I exercised a sufficientdegree of control over the work of those individuals (see Matter of Interlandi [Cremosa Foods Co., LLC—Commissionerof Labor], 70 AD3d 1150, 1150 [2010]; Matter of Noel [Life Alert Emergency Response,Inc.—Commissioner of Labor], 38 AD3d 1082, 1083 [2007]; Matter of DM& M Cable Servs. [Commissioner of Labor], 288 AD2d 643, 643 [2001]). Where, as here,the Board's decision is supported by substantial evidence, it will not be disturbed despite otherevidence in the record that would have supported a contrary result (see Matter of DM & MCable Servs. [Commissioner of Labor], 288 AD2d at 643).
C & I required its cable installers, whether deemed employees or subcontractors, to pass abackground check and drug test before commencing work. The results were forwarded toCablevision, which would then issue a contractor ID badge to each individual. Subcontractorscould hire helpers, but those individuals were also supposed to pass a background check anddrug test and be issued an ID badge (see Matter of Patino [AdderleyIndus.—Commissioner of Labor], 253 AD2d 995, 995 [1998], lv dismissed 93NY2d 920 [1999]). Cablevision would issue work orders each day. Each work order contained atechnician ID number for the individual who Cablevision desired to complete that job; theprocess was the same for C & I's employees and subcontractors. Installers had to complete workorders for every job performed for a Cablevision customer and were supposed to call in each jobas it was completed.
The subcontractors could call C & I each morning to see if there was work for them that day,but they had to report to C & I's warehouse to pick up assignments. A subcontractor could refuseassignments, but repeated refusals could lead C & I to cease using that individual's services.Subcontractors were not required to show up every day or at any certain time, but C & Iappreciated it if subcontractors called when they did not plan to work on a particular day andwould reassign work orders if the assigned subcontractor did not appear by 9:00 a.m. C & Icould not impose discipline on subcontractors like it would with employees, but C & I wouldwithhold assignments on future days to punish subcontractors for performing poorly or forfailing to show up—even though they were not required to work every day.Subcontractors could decide in what order to handle the assignments, but all customerappointments were required to be performed within certain time periods that were less thanfour-hour blocks. State and federal regulations generally require Cablevision to provide serviceswithin that time frame (see 47 CFR 76.309 [c]; 16 NYCRR 890.91). Although C & I'srequirement that its installers comply with those government-imposed time deadlines is not alonesufficient to establish an employer-employee relationship (see Matter of Wannen [Andrew Garrett Inc.—Commissioner ofLabor], 57 AD3d 1029, 1030-1031 [2008]), it can still be considered as part of theoverall determination of control exercised over the installers (see Matter of Collins [Countyof Steuben—Hartnett], 165 AD2d 940, 941 [1990]).
Employees and subcontractors were required to wear C & I uniforms. They all supplied theirown trucks, which had to be white, and were given magnetic Cablevision logos to be placed onthe vehicles during work hours (see Matter of Patino [Adderley Indus.—Commissionerof Labor], 253 AD2d at 995). C & I gave all installers certain equipment, such as cableboxes, modems and cable wires, which was supplied by Cablevision. Customer complaints andbilling [*3]were handled by C & I (see Matter of De Paiva[Olympic Limousine—Commissioner of Labor], 270 AD2d 534, 534 [2000]).Subcontractors could negotiate the rate they were paid for each type of installation, but C & Isupplied them with a basic payment rate and many subcontractors, including claimant, simplyaccepted the given rates. While subcontractors were supposed to supply their own insurance, C& I would cover a subcontractor on its policy if it discovered that the individual lackedinsurance. All of the foregoing circumstances support the determination that the cable installerswere employees.
Although claimant did not testify and all of the witnesses were officers or employees of C &I who asserted that the subcontractors were not employees, the Board was free to consider theinformation the witnesses provided without accepting their conclusions (compare Matter ofPatino [Adderley Indus.—Commissioner of Labor], 253 AD2d at 995-996, with Matter of Vargas [Metropolitan CableCommunications, Inc.—Commissioner of Labor], 18 AD3d 994, 996 [2005]; see Matter of Pace-O-Matic, Inc. v NewYork State Liq. Auth., 72 AD3d 1144, 1147 [2010]). Considering the entirety of thecircumstances, and despite some evidence to the contrary, substantial evidence supports theBoard's determination that an employer-employee relationship existed between C & I and itsputative subcontractors (see Matter of Patino [Adderley Indus.—Commissioner ofLabor], 253 AD2d at 995-996).
Cardona, P.J., Spain, Stein and Egan Jr., JJ., concur. Ordered that the decisions are affirmed,without costs.