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July 03, 2015

An independent contractor ruled ineligible for membership in the New York State Employees’ Retirement System


An independent contractor ruled ineligible for membership in the New York State Employees’ Retirement System
2015 NY Slip Op 04554, Appellate Division, Third Department

A registered nurse [Nurse] worked for Clinton County from 1989 to 2012 as an in-service educator for its public health program pursuant to a series of annual employment contracts that were subject to the approval of the County Legislature.

These contracts stated that Nurse “was an independent contractor  and that she was not eligible for any benefits, including sick leave, vacation pay, pension or retirement benefits” that might be otherwise available to County employees. Further, the record indicated that Nurse:

1. was responsible for providing her own health insurance and malpractice insurance;

2. was paid an hourly wage by voucher upon her submission of a weekly time sheet and no payroll deductions were taken out of her base pay;

3. had no set hours and it was up to Nurse to determine how, when and where she completed the projects.

4. was permitted to hire others to complete the projects; and

5. she could perform services for others at any time.

After Nurse’s job ended, she filed an application for membership in New York Stateand Local Retirement System [ERS]. ERS denied the application, finding that Nurse was an independent contractor and not an employee of the County and, accordingly, was not eligible for membership in ERS.

Nurse commenced a CPLR Article 78 proceeding challenging the denial of her application for membership in ERS. The Appellate Division sustained ERS’s decision to reject Nurse’s application for membership explaining that in light of the information in the record “substantial evidence supports the Comptroller's determination that [Nurse] was an independent contractor, despite the evidence in the record that could support a contrary result.”

The decision is posted on the Internet at:

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