Opinion
03-17-2016
In the Matter of the CLAIM OF Nancy B. ROSENFELDER, Respondent. Community First Holdings, Inc., Doing Business as Lockport Union Sun & Journal, Appellant. Commissioner of Labor, Respondent.
Bond, Schoeneck & King, PLLC, Syracuse (Peter A. Jones of counsel) and The Zinser Law Firm, PC, Nashville, Tennessee (L. Michael Zinser admitted pro hac vice), for appellant. Michelle I. Rosien, Philmont, for Nancy B. Rosenfelder, respondent. Eric T. Schneiderman, Attorney General, New York City (Steven Koton of counsel), for Commissioner of Labor, respondent. Satterlee Stephens Burke & Burke LLP, New York City (Mark A. Fowler of counsel), for New York News Publishers Association, amicus curiae.
Bond, Schoeneck & King, PLLC, Syracuse (Peter A. Jones of counsel) and The Zinser Law Firm, PC, Nashville, Tennessee (L. Michael Zinser admitted pro hac vice), for appellant.
Michelle I. Rosien, Philmont, for Nancy B. Rosenfelder, respondent.
Eric T. Schneiderman, Attorney General, New York City (Steven Koton of counsel), for Commissioner of Labor, respondent.
Satterlee Stephens Burke & Burke LLP, New York City (Mark A. Fowler of counsel), for New York News Publishers Association, amicus curiae.
Before: McCARTHY, J.P., EGAN JR., ROSE, DEVINE and CLARK, JJ.
McCARTHY, J.P.
Appeals from two decisions of the Unemployment Insurance Appeal Board, filed May 21, 2014, which ruled, among other things, that Community First Holdings, Inc. was liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.
Community First Holdings, Inc. (hereinafter CFHI) prints and publishes a daily newspaper. In January 2012, claimant entered into a contract with CFHI to deliver newspapers within designated geographic routes using her own vehicle. When claimant became unable to service the routes due to vehicle problems, she ended her contract and applied for unemployment insurance benefits. The Department of Labor issued initial determinations finding that she was eligible to receive benefits and that CFHI was liable for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated. CFHI objected and, following lengthy hearings, an Administrative Law Judge overruled the initial determinations and found that claimant was an independent contractor, not an employee of CFHI. The Unemployment Insurance Appeal Board disagreed and ruled, among other things, that an employment relationship existed between CFHI and claimant, and that CFHI was liable for unemployment insurance contributions on remuneration paid to her and others similarly situated. CFHI now appeals.
The existence of an employment relationship is a factual issue for the Board to resolve and its decision in this regard will be upheld if supported by substantial evidence (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 N.Y.2d 734, 736, 469 N.Y.S.2d 78, 456 N.E.2d 1201 [1983] ; Matter of Hunter [Gannett Co., Inc.-Commissioner of Labor], 125 A.D.3d 1166, 1167, 3 N.Y.S.3d 195 [2015] ). The pertinent inquiry is whether the purported employer exercised "control over the results produced or the means used to achieve those results ... with the latter being more important" (Matter of Joyce [Coface N. Am. Ins. Co.-Commissioner of Labor], 116 A.D.3d 1132, 1134, 983 N.Y.S.2d 136 [2014] [internal quotation marks and citation omitted]; see Matter of Armison [Gannett Co., Inc.-Commissioner of Labor], 122 A.D.3d 1101, 1102, 995 N.Y.S.2d 856 [2014], lv. dismissed 24 N.Y.3d 1209, 4 N.Y.S.3d 590, 28 N.E.3d 24 [2015] ).
Here, claimant responded to a newspaper advertisement soliciting motor route carriers and was retained by CFHI after meeting with its district manager. Claimant signed an independent contractor distributor agreement that (1) assigned her specific routes, (2) required her to furnish her own vehicle with proof of insurance, (3) set forth specific rates governing her compensation, (4) required her to deliver newspapers in a dry condition by specified times, (5) imposed a penalty upon her if CFHI had to make a delivery due to a subscriber complaint, and (6) provided for termination of the contract by CFHI in the event that claimant received more than 10 subscriber complaints. Although no formal training was provided by CFHI, its district manager reviewed a checklist with claimant containing detailed information that she needed to know to perform her duties. In addition, CFHI provided claimant with optional property damage and personal injury insurance for purchase through an independent carrier, made available supplies, such as rain bags and rubber bands, for claimant to purchase, prohibited claimant from placing any inserts or other materials in the newspapers to be delivered and fielded customer complaints before referring them to claimant. As in many of the other newspaper delivery carrier cases, the record as a whole contains substantial evidence to support the conclusion that CFHI retained a sufficient indicia of control over the performance of claimant's duties to establish the existence of an employment relationship (see Matter of Hunter [Gannett Co., Inc.-Commissioner of Labor], 125 A.D.3d at 1167–1168, 3 N.Y.S.3d 195 ; Matter of Isaccs [Speedy Media Assoc., LLC–Commissioner of Labor], 125 A.D.3d 1077, 1078–1079, 3 N.Y.S.3d 776 [2015] ; Matter of Armison [Gannett Co., Inc.-Commissioner of Labor], 122 A.D.3d at 1102–1103, 995 N.Y.S.2d 856 ; see also Matter of Gray [Glens Falls Newspapers–Roberts], 134 A.D.2d 791, 791–792, 521 N.Y.S.2d 848 [1987] ). Furthermore, there is no indication that the Board ignored the Department of Labor's guidelines in reaching its decisions (see Matter of Travis [Gannett Satellite Info. Network, Inc.-Commissioner of Labor], 127 A.D.3d 1349, 1349, 5 N.Y.S.3d 623 [2015] ; Matter of Armison [Gannett Co., Inc.-Commissioner of Labor], 122 A.D.3d at 1103, 995 N.Y.S.2d 856 ). CFHI's remaining contentions were raised for the first time in its reply brief and are therefore not properly before us (see Schulz v. Cuomo, 133 A.D.3d 945, 948, 22 N.Y.S.3d 602 [2015], appeal dismissed 26 N.Y.3d 1139, 27 N.Y.S.3d 502, 47 N.E.3d 782 [2016] ).ORDERED that the decisions are affirmed, without costs.
EGAN JR., ROSE, DEVINE and CLARK, JJ., concur.