Professional consultants are employees and not independent contractors
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Matter of Wells v. Commissioner of Labor, 77 AD3d 993, is an interesting unemployment case. Applying the right to control test, the court held that professional consultants were employees, reasoning:
Initially, we note that the existence of an employment relationship is a factual issue for the Board to resolve and its determination will be upheld if supported by substantial evidence (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 ; Matter of Brevis Music Inc. [Commissioner of Labor], 54 AD3d 1084, 1085 , lv denied 11 NY3d 712 ). Where professionals are involved, the relevant inquiry is "whether the purported employer retains overall control of important aspects of the services performed" (Matter of Piano School of N.Y. City [Commissioner of Labor], 71 AD3d 1358, 1359 ; see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d at 736;Matter of Parisi [Commissioner of Labor], 54 AD3d 456, 457 ).
In the instant case, it was established that claimant contacted Madison after hearing about the position from another consultant and that Madison conducted an interview to ascertain if claimant was suited for the job. Madison, in turn, sent claimant a written contract setting his compensation at $350 per day and referred him to the client who performed a background check, provided training and directed his daily work activities.
Under the terms of the contract, claimant was precluded from otherwise working for Madison's client companies or partners during the term of the assignment and for one year thereafter, was subject to client confidentiality agreements and was entitled to reimbursement of certain business expenses. In order to obtain payment, claimant was required to complete a time sheet provided by Madison to be submitted at times it directed. In addition, although Madison did not provide formal training, it supplied claimant with informational booklets on its clients' policies and procedures, had a representative conduct site visits to periodically meet with the consultants and responded to client complaints about consultants' work.
This Court has acknowledged that "'an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create an employment relationship'" (Matter of Singh [Thomas A. Sirianni, Inc. — Commissioner of Labor], 43 AD3d 498, 499 , quoting Matter of Kimberg [Hudacs], 188 AD2d 781, 781 ; see Matter of Atelek [Head Hunters Hair Design — Commissioner of Labor], 278 AD2d 560, 560 ). The record reveals that Madison did more than this, as indicated by its interaction with the consultants, responsibility for their work and the terms of the written contract. The fact that the contract was entitled an "Independent Consultant Agreement" is not dispositive (see Matter of Kaplan [Tupperware Distrib. — Commissioner of Labor], 257 AD2d 951, 952 , lv dismissed 93 NY2d 920 ).
Accordingly, as substantial evidence supports the Board's decisions, we decline to disturb them, notwithstanding evidence in the record that would support a contrary conclusion (see Matter of DeSantis [Commissioner of Labor], 54 AD3d 1103, 1104-1105 ).
Mitchell H. Rubinstein
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2023 - Public Employment Law Press. Email: email@example.com.