| Matter of Smith (College Network Inc.—Commissionerof Labor) |
| 2013 NY Slip Op 06044 [109 AD3d 1058] |
| September 26, 2013 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Peter W. Smith, Respondent.The College Network Inc., Appellant; Commissioner of Labor,Respondent. |
—[*1] James W. Cooper, Warrensburg, for Peter W. Smith, respondent.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed January24, 2012, which ruled that The College Network Inc. is liable for unemploymentinsurance contributions on remuneration paid to claimant and others similarly situated.
The College Network Inc. (hereinafter TCN) is a corporation that sells educationalmaterials to individuals for personal study from home to enable them to obtain collegecredits through testing. TCN retained representatives like claimant—calledprogram advisors—for the purpose of promoting and selling such materials toprospective customers. After claimant ceased working for TCN, he filed a claim forunemployment insurance benefits. Based upon information claimant provided, theDepartment of Labor determined that he was an employee of TCN and it assessed TCNfor unemployment insurance contributions based on remuneration paid to claimant andothers similarly situated. TCN contested the determination and, following a hearing, anAdministrative Law Judge sustained it. The Unemployment Insurance Appeal Boardupheld the decision and TCN now appeals.
It is well settled that "the existence of an employment relationship is a factual issuefor the Board to decide and its determination will be upheld if supported by substantialevidence" (Matter ofAutomotive Serv. Sys., Inc. [Commissioner of Labor], 56 AD3d 854, 855[2008]; see Matter of Interlandi[Cremosa Foods Co., LLC—Commissioner of Labor], 70 AD3d 1150,1150[*2][2010]). "The predominant consideration inmaking this inquiry is evidence of the alleged employer's control over the resultsproduced or the means used to achieve those results, with the latter being moreimportant" (Matter of Rodriguez [2020 Video Voice Data,Ltd.—Commissioner of Labor], 58 AD3d 929, 929-930 [2009] [citationsomitted]; see Matter ofMacFarlane [Aid Assn. for Lutherans Corp.—Commissioner of Labor], 35AD3d 1076, 1077 [2006]). Here, there is ample evidence that TCN exercised controlover many aspects of the program advisors' work.
Notably, TCN established the program advisors' sales territory and provided themwith sales leads as well as product knowledge training. Although the program advisorscould pursue these leads or develop their own, they were paid commissions based uponpercentages set by TCN depending on the manner in which the sale was generated. Theprogram advisors were required to report to TCN the results of company-generated leadsand were only allowed to use advertisements and promotional materials approved byTCN. TCN provided program advisors with company email addresses and businesscards, and reimbursed them for the expenses of attending some training. Notably, attimes, regional sales managers accompanied the program advisors on sales calls to ensurethey were providing customers with accurate information. In addition, TCN maintained acorporate calendar by which it would schedule appointments for the program advisorsdepending upon their availability. Significantly, the program advisors were expected tocontact nine customers within a 90-day period, and TCN retained the right to terminatethem if they were underperforming. TCN also prohibited the program advisors fromworking for competitors for a two-year period. In view of the foregoing, substantialevidence supports the Board's finding of an employment relationship between TCN andthe program advisors notwithstanding the existence of evidence, including theindependent contractor agreement (see Matter of O'Connor [2020 Powervision,Ltd.—Commissioner of Labor], 67 AD3d 1302, 1303 [2009]; Matter of Noel [Life AlertEmergency Response, Inc.—Commissioner of Labor], 38 AD3d 1082,1084 [2007]), that would support a contrary result (see Matter of Greenspan [Adco Paper & PackagingCo.—Commissioner of Labor], 31 AD3d 1092, 1093 [2006]).Accordingly, we decline to disturb its decision assessing TCN for unemploymentinsurance contributions based thereon.
Peters, P.J., Rose, Stein and McCarthy, JJ., concur. Ordered that the decision isaffirmed, without costs.