| Matter of Holleran (Jez Enters., Inc.—Commissioner ofLabor) |
| 2012 NY Slip Op 05851 [98 AD3d 757] |
| August 2, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Claim of James M. Holleran, Respondent. JezEnterprises, Inc., Appellant; Commissioner of Labor, Respondent. |
—[*1] James W. Cooper, Warrensburg, for James M. Holleran, respondent. Eric T. Schneiderman, Attorney General, New York City (Mary Hughes of counsel), forCommissioner of Labor, respondent.
Appeals from two decisions of the Umemployment Insurance Appeal Board, filed May 17,2010, which ruled, among other things, that Jez Enterprises, Inc. was liable for unemploymentinsurance contributions based on remuneration paid to claimant and others similarly situated.
Jez Enterprises, Inc. is engaged in the business of providing installation and repair servicesfor sports equipment purchased by customers of its retail clients. After responding to anewspaper advertisement, claimant was hired by Jez to install and repair such equipment and hesigned a written agreement designating him an independent contractor in connection therewith.He received his work assignments via work orders that were emailed to him directly from Jezand he, in turn, made appointments with the individual customers to deliver and assemble theequipment. At the completion of a job, claimant had the customer sign the work order to indicatethat the job was performed in a satisfactory manner and he then gave it to Jez. Jez paid claimanton a weekly basis after receiving work orders for work that claimant had completed. Afterclaimant stopped working for Jez, he filed a claim for unemployment insurance benefits. TheDepartment of Labor issued an initial determination finding claimant eligible to receive benefits[*2]and Jez liable for contributions based on remuneration paid toclaimant and others similarly situated. Jez objected and requested a hearing, contending thatclaimant was an independent contractor. Following a hearing, an Administrative Law Judge ruledthat an employment relationship existed between claimant and Jez and it sustained the initialdetermination. The Unemployment Insurance Appeal Board upheld these decisions and Jez nowappeals.
It is well settled that the existence of an employment relationship turns upon the controlexercised by the employer over the results produced or the means used to obtain those results,with control over the latter being the more important factor to consider (see Matter of Interlandi [Cremosa FoodsCo., LLC—Commissioner of Labor], 70 AD3d 1150, 1150 [2010]; Matter ofRodriguez [2020 Video Voice Data, Ltd.—Commissioner of Labor], 58 AD3d 929,929 [2009]; Matter of Kelly [FrankGallo, Inc.—Commissioner of Labor], 28 AD3d 1044, 1045 [2006], lvdismissed 7 NY3d 844 [2006]). Upon reviewing the record here, we find that the requisitecontrol is lacking. Significantly, it was claimant's responsibility to contact the customer directlyto schedule the work after receiving an emailed work order from Jez, the only requirement beingthat he do so within 48 hours. Moreover, claimant was free to decline a work assignment, inwhich case Jez would contact another installer, and the rate of pay was a negotiated amountwhich varied among installers. Although Jez provided claimant with limited training during thefirst week, it did not do so thereafter, and claimant performed the work based upon instructionscontained in the manual that came with the equipment.
Notably, Jez did not inspect claimant's work or require him to work a particular schedule or aspecified number of hours. If there was a problem with claimant's work that necessitatedcorrection by another installer, claimant was responsible for reimbursing Jez for that installer'sservices. In addition, Jez did not withhold taxes from claimant's paycheck, reimburse him forexpenses, or provide him with tools, transportation or any type of fringe benefits. Furthermore, inaccordance with the terms of the agreement designating him an independent contractor, claimantwas permitted to work for competing companies. In view of the foregoing, we conclude that Jezdid not exercise control over important aspects of claimant's work so as to establish the existenceof an employment relationship (seeMatter of Best [Lusignan-Commissioner of Labor], 95 AD3d 1536, 1537-1538 [2012];Matter of Rosen [Vidicom,Inc.—Commissioner of Labor], 73 AD3d 1352, 1353 [2010], lv denied 15NY3d 706 [2010]; compare Matter ofJimenez [C & I Assoc., Inc.—Commissioner of Labor], 74 AD3d 1587, 1589[2010]). Consequently, the Board's decisions must be reversed.
Peters, P.J., Rose, Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the decisions arereversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board forfurther proceedings not inconsistent with this Court's decision.