Opinion
May 6, 1993
Appeal from the Unemployment Insurance Appeal Board.
Jeff Cobb and Joe Farnach own a company that produces advertising placemats for restaurants. The company uses the services of sales representatives to both sell the advertising spaces and to sell the placemats themselves to the restaurants. The company provides the sales representatives with its business cards and their sales leads at no charge. The sales representatives are required to use the company's printed sales brochures, its advertising order forms and standard placemat format sheets. The company sets the price for the advertising spaces and for the placemats. The sales representatives cannot charge more than the price set by the company and may charge less only by reducing their own commissions. They receive a set commission of 40% of the advertising revenue and make all the arrangements between the restaurants and the advertisers.
The question of whether an employer-employee relationship exists depends on whether there is evidence of either control over the results achieved or over the means used to achieve those results (see, Matter of Rivera [State Line Delivery Serv. Roberts], 69 N.Y.2d 679, cert denied 481 U.S. 1049). Given the facts of this case, we find substantial evidence to support the finding by the Unemployment Insurance Appeal Board that the direction and control exercised by the company over its sales representatives were sufficient to establish their status as employees (see, Matter of Oakes [Stroehman Bakeries — Roberts], 137 A.D.2d 927; Matter of Cohen [Blinder, Robinson Co. Roberts], 112 A.D.2d 687, affd 67 N.Y.2d 683). In reaching this conclusion, we also note that the sales representatives did not have their own independent advertising businesses and, as one of the company's owners admitted, the company could not operate without their services (see, Matter of Studio Theatre School Corp. [Roberts], 99 A.D.2d 637).
Weiss, P.J., Levine, Crew III, Casey and Harvey, JJ., concur. Ordered that the decision is affirmed, without costs.