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New York Appellate Division applies ?right to control? test to determine employee status for unemployment insurance purposes.

New York Appellate Division applies ?right to control? test to determine employee status for unemployment insurance purposes.
Source: Adjunct Law Prof Blog; Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Matter of Lessman v. Snowlift, ___A.D.3d___ (3d Dep't. Sept. 11, 2008), is an interesting decision because the court clearly defines employee status for unemployment insurance purposes. As the court stated:

Initially, we note that the existence of an employment relationship is a factual issue to be resolved by the Board and its decision will be upheld if supported by substantial evidence (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]). "Critical to such a determination is whether the purported employer exercised control over the results or, more significantly, the means by which those results were generated" (Matter of O'Neil-Haight [County of Yates Commissioner of Labor], 34 AD3d 1041, 1042 [2006] [citations omitted]; see Matter of Lambert [Staubach Retail Servs. New England, LLC Commissioner of Labor], 18 AD3d 1049, 1050 [2005]).

Although necessitated by the highly regulated nature of the contracts awarded to Snowlift, the record discloses that it exercised considerable control over many aspects of the operators' work. It not only paid them on a hourly basis and furnished the equipment they were to use to remove the snow, it also provided them with meals while they were on the job site. Significantly, a Snowlift representative was always on site to take direction from the Port Authority manager and to escort the operators to the areas to be cleared, effectively overseeing the entire operation.

Notwithstanding the existence of evidence that would support a finding that the operators were independent contractors, substantial evidence supports the Board's decision (see Matter of Mirsky [Twin-Tex Corp. Commissioner of Labor], 38 AD3d 1029 [2007]). Thus, we decline to disturb it.

As readers [of Adjunct Law Prof Blog] know, I frequently highlight employee status cases. I previously wrote a law review article outlining the different tests for employee status. The common law right to control test, employed by this court is just one of those tests.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on October 06, 2008 (boomark / email).