Opinion
02-19-2015
In the Matter of the Claim of Camille HUNTER, Respondent. Gannett Company, Inc., Doing Business as Democrat and Chronicle, Appellant. Commissioner of Labor, Respondent.
Bond, Schoeneck & King, PLLC, Syracuse (Daniel J. Pautz of counsel) and The Zinser Law Firm, P.C., Nashville, Tennessee (L. Michael Zinser admitted pro hac vice), for appellant. James W. Cooper, Warrensburg, for Camille Hunter, 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 ), for New York News Publishers Association, amicus curiae.
Bond, Schoeneck & King, PLLC, Syracuse (Daniel J. Pautz of counsel) and The Zinser Law Firm, P.C., Nashville, Tennessee (L. Michael Zinser admitted pro hac vice), for appellant.
James W. Cooper, Warrensburg, for Camille Hunter, 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 ), for New York News Publishers Association, amicus curiae.
Before: LAHTINEN, J.P., GARRY, LYNCH and CLARK, JJ.
Opinion Appeals from two decisions of the Unemployment Insurance Appeal Board, filed July 25, 2013, which ruled, among other things, that Gannett Company, Inc. is liable for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated.
Claimant contracted with Gannett Company, Inc. to deliver newspapers to residential customers. After the Commissioner of Labor deemed claimant an employee, Gannett objected and, following a hearing, the Administrative Law Judge disagreed and concluded that claimant was an independent contractor. On appeal by the Commissioner of Labor, the Unemployment Insurance Appeal Board reversed that determination and found claimant and all motor-route carriers similarly situated to be employees. Gannett now appeals, and we affirm.
The essence of Gannett's argument is that the Board's finding of an employer-employee relationship is not supported by substantial evidence. We disagree. “Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence” (Matter of John Lack Assoc., LLC [Commissioner of Labor], 112 A.D.3d 1042, 1043, 977 N.Y.S.2d 760 [2013] [citation omitted]; 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] ). “While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important” (Matter of Joyce [Coface N. Am. Ins. Co.-Commissioner of Labor], 116 A.D.3d 1132, 1133, 983 N.Y.S.2d 136 [2014] [internal quotation marks and citation omitted]; see Matter of Spielberger [Commissioner of Labor], 122 A.D.3d 998, 999, 994 N.Y.S.2d 729 [2014] ).
Recently, in Matter of Armison [Gannett Co., Inc.-Commissioner of Labor], 122 A.D.3d 1101, 995 N.Y.S.2d 856 [2014], this Court upheld a finding of an employer-employee relationship between Gannett and certain newspaper delivery persons. Here, as we did in Armison, we find that the requisite level of control was present to support the Board's finding of an employer-employee relationship. Claimant was required to make deliveries within set time frames and according to other conditions. Claimant was also required to be a licensed driver with a registered and insured vehicle, and was obligated to provide Gannett with a copy of her driver's license and proof of liability insurance. Additionally, under the terms of the distribution agreement, all substitutes were required to be licensed and insured. Claimant was provided a route set by Gannett and, if claimant was not available to deliver her route, she was responsible for finding a substitute. In the event that deliveries were not made by claimant, Gannett would use an employee to make the delivery and charge claimant a fee. Further, Gannett controlled other aspects of claimant's work, including prohibiting placing foreign materials on or in the publications. Claimant was also provided access to accident insurance from Gannett's policy. In light of the foregoing, and despite the existence of other evidence in the record suggestive of an independent contractor relationship—including the distribution agreement expressly designating claimant as an independent contractor—we find that substantial evidence supports the Board's determination that claimant was an employee (see Matter of Armison [Gannett Co., Inc.-Commissioner of Labor], 122 A.D.3d at 1101, 995 N.Y.S.2d 856 ; Matter of Lewis [Absolute Distrib., Inc.-Commissioner of Labor], 121 A.D.3d 1488, 994 N.Y.S.2d 469 [2014] ; Matter of Kelly [Frank Gallo, Inc.-Commissioner of Labor], 28 A.D.3d 1044, 1045, 814 N.Y.S.2d 340 [2006], lv. dismissed 7 N.Y.3d 844, 823 N.Y.S.2d 772, 857 N.E.2d 67 [2006] ). Gannett's remaining arguments have been considered and found to be lacking in merit.
ORDERED that the decisions are affirmed, without costs.