Opinion
02-19-2015
In the Matter of the Claim of Richard G. JENNINGS, Respondent. American Delivery Solution, Inc., Doing Business as Perfect Delivery Services, Appellant. Commissioner of Labor, Respondent.
Segal McCambridge Singer & Mahoney, New York City (Annette G. Hasapidis of counsel), for appellant. Francis J. Smith, Albany, for Richard G. Jennings, respondent.
Segal McCambridge Singer & Mahoney, New York City (Annette G. Hasapidis of counsel), for appellant.
Francis J. Smith, Albany, for Richard G. Jennings, respondent.
Before: LAHTINEN, J.P., GARRY, EGAN JR. and DEVINE, JJ.
Opinion Appeals from two decisions of the Unemployment Insurance Appeal Board, filed May 13, 2013, which ruled that American Delivery Solution, Inc. was liable for unemployment insurance contributions based on remuneration paid to claimant and others similarly situated.
Claimant worked as a delivery person for American Delivery Solution, Inc. (hereinafter ADS)—a business that transports lost luggage from airports to luggage owners. After his employment ended, claimant applied for unemployment insurance benefits and the Department of Labor determined that claimant was an employee of ADS and, therefore, ADS was liable for unemployment insurance contributions based on remuneration paid to claimant and others similarly situated. ADS objected on the ground that claimant was an independent contractor and, following a hearing, the Administrative Law Judge sustained the initial determination and the Unemployment Insurance Appeal Board affirmed. ADS now appeals.
We reverse. Whether an employee-employer relationship exists “is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record” (Matter of McCollum [Fire Is. Union Free Sch. Dist.-Commissioner of Labor], 118 A.D.3d 1203, 1203, 987 N.Y.S.2d 708 [2014] ; 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 Matter of Armison [Gannett Co.-Commissioner of Labor], 122 A.D.3d 1101, 1102, 995 N.Y.S.2d 856 [2014], quoting Matter of Automotive Serv. Sys., Inc. [Commissioner of Labor], 56 A.D.3d 854, 855, 867 N.Y.S.2d 232 [2008] ). Upon reviewing the record here, we find that the requisite control is lacking.
Claimant paid all of the expenses associated with his delivery work, including the lease of his vehicle, fuel, tolls, insurance, maintenance and his cell phone. For his services, claimant negotiated his own rate of pay and was paid a portion of the commission paid to ADS (see Matter of Holleran [Jez Enters., Inc.-Commissioner of Labor], 98 A.D.3d 757, 759, 950 N.Y.S.2d 205 [2012] ) ]. No training was provided by ADS, nor did it impose any conditions on the way that claimant performed his work. Claimant spoke to the customer directly to determine delivery times and was ultimately responsible for lost or damaged luggage. Moreover, under the parties' agreement, which designated him an independent contractor, claimant was permitted to hire other individuals to perform work, did not work a fixed schedule, had the right to accept or reject assignments and was free to work for any other company (see Matter of Holleran [Jez Enters., Inc.-Commissioner of Labor], 98 A.D.3d at 759, 950 N.Y.S.2d 205 ; compare Matter of Lewis [Absolute Distrib., Inc.-Commissioner of Labor], 121 A.D.3d 1488, 1488–1489, 994 N.Y.S.2d 469 [2014] ; Matter of Khan [Mirage Limousine Serv., Inc.-Commissioner of Labor], 66 A.D.3d 1098, 1099, 886 N.Y.S.2d 776 [2009], lv. denied 13 N.Y.3d 717, 2010 WL 154648 [2010] ). Under these circumstances, we are unable to conclude that substantial evidence exists supporting the Board's decision that ADS exercised sufficient control over claimant to establish an employer-employee relationship (see Matter of John Lack Assoc., LLC [Commissioner of Labor], 112 A.D.3d 1042, 1043, 977 N.Y.S.2d 760 [2013] ; Matter of Holleran [Jez Enters., Inc.-Commissioner of Labor], 98 A.D.3d at 758, 950 N.Y.S.2d 205 ) and, therefore, the Board's decisions must be reversed.
ADS utilized a third party to perform administrative services, such as issuing payroll and ensuring that drivers maintained required insurance.
--------
ORDERED that the decisions are reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision.