Labor & Employment Law

Truck driver found to be employee for unemployment insurance purposes

Matter of Wright v. Commissioner, ___A.D. 3d___(3d Dept. Jan. 15, 2009), illustrates that employee status can, and often is, litigated in unemployment hearing and that an independent contractor agreement is not binding. The court, applying the right to control test, explained that this truck driver was an employee for the following reasons:

Although claimant did not have a set schedule and was obligated to find a replacement driver if he was unavailable, Central retained the authority to object to the replacement driver based on safety or competency concerns. Similarly, if claimant failed to show or provide a replacement driver, Central would attempt to reassign claimant's deliveries or have one of its "employee drivers" haul claimant's load. Central also resolved all customer complaints (see Matter of Lombard [Commissioner of Labor], 52 AD3d at 982; Matter of MacFarlane [Aid Assn. for Lutherans Corp. Commissioner of Labor], 35 AD3d at 1077).

Thus, notwithstanding the existence of a written contract identifying claimant as an independent contractor and other evidence in the record that could support a contrary result, we nonetheless conclude that the record as a whole contains substantial evidence to support the Board's finding of an employer-employee relationship (see Matter of Kelly [Frank Gallo, Inc. Commissioner of Labor], 28 AD3d 1044 [2006], lv dismissed 7 NY3d 844 [2006]; Matter of Davis [RTC Transp. Roberts], 111 AD2d at 1031). Central's remaining arguments have been examined and found to be lacking in merit. Accordingly, the Board's decision is affirmed.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on February 13, 2009 (boomark / email).