Opinion
January 13, 1943.
Appeal from Unemployment Insurance Appeal Board.
Present — Hill, P.J., Crapser, Bliss, Heffernan and Schenck, JJ.
Appellant is a New York corporation engaged in the business of originating and sponsoring investment trusts. It is registered with the Securities Exchange Commission as an issuer of securities. It is a subject employer under the provisions of the Unemployment Insurance Law. Claimant was employed by appellant as a soliciting agent to sell its offerings. Prior to the engagement of claimant's services by the company he filled out an application blank supplied by the company. This form was designated "Employee's Application Blank," in which claimant was required to divulge, among other things, his race, religion, marital status, age, last position, former earnings and whether he had ever been bonded. Claimant was employed under a printed letter contract, which was prepared by the attorneys of the company. A different contract had formerly been used prior to the enactment of the Social Security Law, and it is conceded under the old contract those employed were employees of the company. The new contract, under which claimant worked, was drawn after the enactment of the Social Security Law. It had in it, among other things, the following: "I understand that I am not bound to devote any particular portion of my time to the sale of your offerings and that I am free to engage in such other business activities as I may see fit." It is appellant's contention that by virtue of this provision the claimant was not in its employ. The duties of claimant as set forth in the terms of the contract, and the fact that he had a desk in the company's office upon which his name was, that he wrote letters in the office, that he had a business card showing that he represented the company, all indicate very strongly that he was an employee and that the agreement under which he worked was simply an attempt to have him waive the provisions of the Social Security Law. He was paid on a commission basis. All the literature was supplied by the company. The company had the right to say whether it would accept or reject sales that he made. It had the right to terminate the contract at any time. All advertising matters the claimant used were supplied by the company and belonged to it. The record herein shows that the appellant exercised a sufficient degree of supervision and control over the claimant to constitute him an employee within the meaning of the Unemployment Insurance Law. Decision of the Board unanimously affirmed with costs to the Industrial Commissioner. ( Matter of Electrolux Corp., 288 N.Y. 440. )