Opinion
519321.
12-03-2015
In the Matter of the Claim of Ricardo K. VOISIN, Respondent. Dynamex Operations East, Inc., Appellant. Commissioner of Labor, Respondent. In the Matter of the Claim of Ramdeo S. Ramsaran, Respondent. Dynamex Operations East, Inc., Appellant. Commissioner of Labor, Respondent. In the Matter of the Claim of George P. Kambouris, Respondent. Dynamex Operations East, Inc., Appellant. Commissioner of Labor, Respondent.
Jasinski PC, Newark, New Jersey (Erin L. Henderson of counsel), for appellant. Michelle I. Rosien, Philmont, for Ricardo K. Voisin and others, respondents. Eric T. Schneiderman, Attorney General, New York City (Steven Koton of counsel), for Commissioner of Labor, respondent.
Jasinski PC, Newark, New Jersey (Erin L. Henderson of counsel), for appellant.
Michelle I. Rosien, Philmont, for Ricardo K. Voisin and others, respondents.
Eric T. Schneiderman, Attorney General, New York City (Steven Koton of counsel), for Commissioner of Labor, respondent.
Opinion
McCARTHY, J.
Appeals from six decisions of the Unemployment Insurance Appeal Board, filed November 26, 2013, November 27, 2013 and December 6, 2013, which ruled, among other things, that Dynamex Operations East, Inc. is liable for unemployment insurance contributions on remuneration paid to claimants and others similarly situated.
Dynamex Operations East, Inc. is a logistics company that operates, among other things, a same-day pickup and delivery service specializing in the health care field. Claimants were couriers engaged by Dynamex for its same-day delivery business. The Unemployment Insurance Appeal Board determined that an employer-employee relationship existed between claimants and Dynamex, that claimants were entitled to unemployment insurance benefits and that Dynamex was liable for unemployment insurance contributions for remuneration paid to claimants and others similarly situated. Dynamex now appeals.
The Board reopened the November 26, 2013 decisions regarding claimant Ricardo K. Viosin to correct an error and issued new decisions on December 4, 2013. Although Dynamex has not appealed from the subsequent decisions, they are reviewable as they are substantially the same as the November 26, 2013 decisions (
“Whether an employer-employee 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 Jennings [American Delivery Solution, Inc.-Commissioner of Labor], 125 A.D.3d 1152, 1152, 3 N.Y.S.3d 209 2015 [internal quotation marks and citations omitted]; see Matter of LaValley [West Firm, PLLC–Commissioner of Labor], 120 A.D.3d 1498, 1499, 992 N.Y.S.2d 378 2014 ). “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 Automotive Serv. Sys., Inc. [Commissioner of Labor], 56 A.D.3d 854, 855, 867 N.Y.S.2d 232 2008 [citations omitted]; accord Matter of Joyce [Coface N. Am. Ins. Co.-Commissioner of Labor], 116 A.D.3d 1132, 1133, 983 N.Y.S.2d 136 2014 ).
Here, the record contains evidence that claimants were required to wear uniforms identifying themselves as being contracted through Dynamex. Claimants were also issued Dynamex identification cards. Further, claimants were bound by a one-year noncompetition restriction following their termination with Dynamex. Claimants would advise Dynamex when they were available to work and Dynamex would then assign pickups and deliveries to them within their general geographic location. Claimants were required to complete their assignments the same day and provide Dynamex with proof of delivery. Dynamex handled customer complaints and would bill its customers and pay claimants weekly, based upon commissions for the services performed, even if the customer did not pay Dynamex. Contrary to the employer's contention, there is substantial evidence in the record to support the Board's finding that claimants were employees of Dynamex and that Dynamex was liable for unemployment insurance contributions based upon remuneration paid to them and others similarly situated (see Matter of Youngman [RB Humphreys Inc.-Commissioner of Labor], 126 A.D.3d 1225, 1226–1227, 4 N.Y.S.3d 402 2015, lv. dismissed 25 N.Y.3d 1192 2015; Matter of Kelly [Frank Gallo, Inc.-Commissioner of Labor], 28 A.D.3d 1044, 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; Matter of Cabellero [Reynolds Transp.-Hudacs], 184 A.D.2d 984, 984, 585 N.Y.S.2d 605 1992 ). Accordingly, the decisions will not be disturbed.
LAHTINEN, J.P., LYNCH and DEVINE, JJ., concur.
ORDERED that the decisions are affirmed, without costs.
see Matter of Fair [Commissioner of Labor], 27 A.D.3d 841, n. 842, 810 N.Y.S.2d 575 2006 ).