Opinion
January 16, 1986
Appeal from the Unemployment Insurance Appeal Board.
Holbrook Speech Services, Inc. (Holbrook) is a professional corporation engaged in the business of providing the services of speech, occupational and physical therapists to nursing homes, home care agencies and private patients. The instant controversy arises from the Unemployment Insurance Appeal Board's assessment of additional contributions based on the remuneration paid these therapists for the audit period. The precise issue is whether the Board's characterization of the therapists as employees of Holbrook is supported by substantial evidence, generally a factual matter for Board resolution (Matter of Concourse Ophthalmology Assoc. [Roberts], 60 N.Y.2d 734, 736). In our view, the record provides ample basis for the Board's decision. Although each case must necessarily be decided on its own particular facts (see, Matter of Schwartz [Creative Tutoring — Roberts], 91 A.D.2d 778), this case is strikingly similar to Matter of Gentile Nursing Servs. (Roberts) ( 65 N.Y.2d 622, revg 106 A.D.2d 763), where an employer-employee relationship was found to exist in a nursing referral service. The analysis of the instant case leads to a similar conclusion.
Initially, it is clear that the services provided by the therapists are not of a nature to be supervised or controlled by the employer (see, Matter of Goldstein [Roberts], 61 N.Y.2d 937; Matter of Concourse Ophthalmology Assoc. [Roberts], supra; Matter of Eastern Suffolk School of Music [Roberts], 91 A.D.2d 1123). There are, however, other indicia of an employment relationship. Holbrook maintains a registry of therapists, who are generally contacted through newspaper advertisements listing the number of hours involved and the hourly rates. Each applying therapist is required to complete a registry form, providing identification, educational background and preferred type of work. Holbrook first contracts directly with the various clients and then selects an appropriate therapist from the registry. The therapist is free to decline the position, in which event Holbrook selects another. While rates are subject to negotiation, Holbrook sets a maximum hourly rate and pays the therapists biweekly, provided that invoices documenting treatment and relevant patient data have been submitted. Holbrook bills its clients directly and collects payment.
During the relevant period, therapists were required to notify Holbrook if they were unable to keep an appointment. Holbrook, at times, would secure a replacement. Additionally, therapists were required to provide four weeks' notice of resignation or forfeit two weeks' pay. In the event a therapist secured employment with one of Holbrook's clients, Holbrook was to be reimbursed the equivalent of five years of contracted fees. Cumulatively, these factors are indicative of an employer-employee relationship (Matter of Gentile Nursing Servs. [Roberts], supra). While Holbrook strenuously maintains that it is simply a "registry or referral service" and there is considerable evidence supportive of this contention, such conflict merely presents a factual controversy for Board resolution. Upon comparison, it becomes clear that Holbrook was as actively engaged in client contact, assignment, fees and wages as was the employer in Gentile Nursing Servs.
Holbrook's further contention that it was denied due process by the Board's disregard of the Administrative Law Judge's factual findings is without merit. While the Board reversed the Administrative Law Judge's determination, it was authorized to assess the facts and reach a different result provided its determination was supported by substantial evidence (Matter of Padilla [Sephardic Home for Aged — Roberts], 113 A.D.2d 997). Having already confirmed the propriety of the Board's decision, Holbrook's due process argument must necessarily fail.
Decision affirmed, without costs. Mahoney, P.J., Kane, Casey, Weiss and Levine, JJ., concur.