Opinion
Argued March 25, 1997
Decided May 1, 1997
APPEAL from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered May 23, 1996, which, with two Justices dissenting, (1) reversed a decision of the Unemployment Insurance Appeal Board ruling that respondent Orange County Department of Social Services was liable for additional unemployment insurance contributions, and (2) remitted the matter to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with the Court's decision.
Claimant worked as an informal day care provider for clients of the Orange County Department of Social Services. Although she was required to meet with a Department representative prior to commencing work and filled out an application for approval as an informal day care provider, she was selected by the recipients, not the Department. In addition, she did not work at facilities provided by the Department, but rather worked in one of the recipient's homes. She coordinated her work schedule directly with the recipients and was free to work for other individuals. The Department did not provide her with training or supervise her activities. Although the Department set the rate of pay at $2 per hour per child, the checks were made payable to both claimant and the recipient. Claimant was required to keep a calendar and to submit vouchers to the Department setting forth the hours worked in order to get paid.
In its challenge to a decision of the Unemployment Insurance Appeal Board finding the Department liable for additional unemployment insurance contributions based on compensation paid to claimant and others similarly situated, the Department contended that claimant was an independent contractor, not an employee, and that it was therefore not liable for additional unemployment insurance contributions.
The Appellate Division concluded that although the existence of an employment relationship is generally a question of fact for the Board to resolve, it cannot be said that the Department exercised the requisite direction and control over claimant's work to support the Board's finding that she was an employee, and that accordingly, the Board's decision is not supported by substantial evidence and must be reversed.
Matter of McMeekin (Orange County Dept. of Social Servs. — Sweeney), 227 A.D.2d 876, affirmed.
McNamee, Lochner, Titus Williams, P.C., Albany ( David J. Wukitsch of counsel), for appellant.
Richard B. Golden, County Attorney of Orange County, Goshen ( David L. Darwin of counsel), for Orange County Department of Social Services, respondent.
Order affirmed, without costs, for the reasons stated in the memorandum of the Appellate Division ( 227 A.D.2d 876).
Concur: Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY.