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Wednesday, November 27, 2013

The label assigned by the parties to the relationship between them does not determine if it is that of an employer-employee or as an independent contractor

The label assigned by the parties to the relationship between them does not determine if it is that of an employer-employee or as an independent contractor
Mowry v DiNapoli, 2013 NY Slip Op 07794, Appellate Division, Third Department

John M. Mowry, Esq. served as the attorney for the Mexico Central School District [Mexico CSD] from 1974 until his retirement in 2002. In addition, Mr. Mowry served as the attorney for the Village of Mexico during roughly that same time frame, served as an attorney for other public entities and maintained a private law practice.

In 2010, eight years after his retirement, Mr. Mowry received a letter from the New York State and Local Employees’ Retirement System [ERS] informing him that, based upon a review of his relationship with both the school district and the Village, he had incorrectly been reported as an employee rather than as an independent contractor. Accordingly, said ERS, Mr. Mowry’s salary and credited service were being removed from his records and, as a result, his annual benefit amount had been reduced and he was responsible for certain overpayments and arrears. 

Following an administrative hearing, the Hearing Officer determined that Mr. Mowry failed to sustain his burden of proof that he was an employee of the school district or the Village and denied his application for salary and service credits. The Comptroller accepted the Hearing Officer's findings and conclusions and Mr. Mowry filed an Article 78 petition challenging the Comptroller's decision.

The Appellate Division decided that the Comptroller's determination that Mr. Mowry was not an employee of the Mexico CSD was not supported by substantial evidence, noting that, among other things:

1. The school board routinely engaged in discussions about whether to retain Mr. Mowry's services as an employee or an independent contractor and the board continually chose the former because it was more cost effective for the school district.

2. There was no written contract with Mr. Mowry and the Mexico CSD and the assistant superintendent directed him as to what work needed to be completed and when services were to be performed.

3. The assistant superintendent and school board reviewed Mr. Mowry's work for its sufficiency and the president monitored Mowry's performance and conducted annual performance evaluations.

4. Mr. Mowry was paid every two weeks by paycheck, from which income taxes, Social Security, Medicare and health insurance premiums were deducted, and he received a W-2 form annually.

5. Mr. Mowry’s appointment as an employee of the school district was recognized by the County Department of Civil Service as a "School Attorney" — an exempt position in the Classified Service.

6. Mr. Mowry took an oath of office annually and the school district maintained a personnel file on him.

7. Although Mr. Mowry “did not have set hours,” the assistant superintendent testified that he was available on an as-needed basis and, even if he did not perform work for the school district during a pay period, he would receive a paycheck for that pay period nonetheless.

In contrast, said the court, ERS relied on the testimony of the school district treasurer, who testified that she had no knowledge about how Mr. Mowry received work assignments, the nature of his work duties or his relationship with either the school board or the superintendent, or whether he was ever evaluated. Thus, said the Appellate Division, it could not conclude that the Comptroller's determination with respect to the school district was supported by substantial evidence.

The Appellate Division, however, reach a different result with respect to Mr. Mowry’s employment by the Village of Mexico. The court noted that Mr. Mowry admitted that he served in the capacity of Village Attorney as an independent contractor prior to 1994 and that he was thereafter placed on the payroll pursuant to his request for the sole purpose of accruing retirement benefits. Further, the Village clerk treasurer testified that there was no reason for the change in status other than Mr. Mowry's request and that, other than the fact that his pay was reported to the Retirement System, there was no substantive change in his relationship to the Village.

The court explained that the label assigned by the parties to the employment relationship between them is not determinative of whether an employer-employee relationship or independent contractor status exists. In this instance the Appellate Division said that there was substantial evidence to support the Comptroller's determination that Mr. Mowry was an independent contractor and not an employee of the Village.

The decision is posted on the Internet at:

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