| Matter of John Lack Assoc., LLC (Commissioner ofLabor) |
| 2013 NY Slip Op 08180 [112 AD3d 1042] |
| December 5, 2013 |
| Appellate Division, Third Department |
| In the Matter of John Lack Associates, LLC, Appellant;Commissioner of Labor, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Mary Hughes of counsel),for respondent.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 26,2012, which assessed John Lack Associates, LLC for additional unemploymentinsurance contributions.
John Lack Associates, LLC is an agency that places waiters and bartenders withclients for catered functions. In 2006, the Department of Labor audited John Lack anddetermined that the waiters and bartenders were its employees, and held the agency liablefor contributions based on remuneration paid to them. John Lack contested thedetermination and, following a hearing, an Administrative Law Judge agreed that therewas an employer-employee relationship. Such determination was thereafter upheld by theUnemployment Insurance Appeals Board and this appeal by John Lack ensued.
We reverse. Whether an employer-employee relationship exists is a factualdetermination for the Board, and its decision will be upheld if supported by substantialevidence (see Matter of Smith[College Network Inc.—Commissioner of Labor], 109 AD3d 1058, 1059[2013]; Matter of Richins[Quick Change Artistry, LLC—Commissioner of Labor], 107 AD3d1342, 1343 [2013]). "[S]uch a relationship will be found to exist where the employerexercises control over the results produced or the means used to achieve those results,with the latter being more important" (Matter of Columbia Artists Mgt. LLC [Commissioner ofLabor], 109 AD3d 1055, 1056 [2013]; see Matter of Smith [CollegeNetwork Inc.—Commissioner of Labor], 109 AD3d at 1058; Matter of Holleran [Jez Enters.,Inc.—Commissioner of Labor], 98 AD3d 757, 757[*2][2012]). Upon our review of the record here, we find theindicia of control to be lacking.
John Lack provides its clients with individuals fitting the client's requirements foreach particular event. The agency neither interviews nor screens the workers, other thanto ensure that they have the necessary uniform and equipment. However, the workersgenerally provide their own uniform and equipment. Although the client may provide auniform on occasion, John Lack does not. After being retained by a client, John Lackcontacts individuals from its lists and explains the details and requirements of theavailable job. The individual is free to refuse a job and may do so, for example, if the payrate offered is unacceptable. Notably, most of the waiters and bartenders accept workfrom other placement agencies. If the worker accepts the job offered by John Lack, theagency directs him or her to report to a representative of the client at the event. However,it is the client that instructs, controls and supervises the worker at the event. In thisregard, the client explains the rules of conduct to the worker and, if a worker'sperformance is not satisfactory, the client will instruct the individual to leave or fire himor her from the job. There is no indication in the record that John Lack provides workerswith any training.
With regard to payment, the client is responsible for tracking the number of hoursworked by the waiter or bartender and then completes an event report and submits it toJohn Lack so that payment can be tendered to the worker. Although workers are paid byJohn Lack, their remuneration is based upon the rate of pay offered by the client to JohnLack for each particular job. Additionally, on at least one occasion, when a worker wasinjured on a job, the client paid the worker's hospital bills. Under these circumstances,we are unable to conclude that substantial evidence exists in the record to support theBoard's decision that John Lack exercises sufficient control over the workers to establishan employer-employee relationship (see Matter of Richins [Quick Change Artistry,LLC—Commissioner of Labor, 107 AD3d at 1344; Matter of Holleran[Jez Enters., Inc.—Commissioner of Labor], 98 AD3d at 757; Matter ofMulholland [Motherly Love Care—Commissioner of Labor], 258 AD2d 855,758 [1999]).
Rose, J.P., Stein, McCarthy and Spain, JJ., concur. Ordered that the decision isreversed, without costs, and matter remitted to the Unemployment Insurance AppealBoard for further proceedings not inconsistent with this Court's decision.