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May 11, 2016

Determining if an employer-employee relationship exists for the purposes of unemployment insurance

Determining if an employer-employee relationship exists for the purposes of unemployment insurance
Ritch (Island Tutoring Ctr., Inc.--Commissioner of Labor), 2016 NY Slip Op 03569, Appellate Division, Third Department
Greene (Syracuse Socy. for New Music, Inc.--Commissioner of Labor), 2016 NY Slip Op 03567, Appellate Division, Third Department

The question of whether an employer-employee relationship exists is a factual question to be resolved by Unemployment Insurance Appeal Board and courts will not disturb its determination when it is supported by substantial evidence in the record. As the Court of Appeals held in Empire State Towing and Recovery Assn. [Commissioner of Labor], 15 NY3d 433, "An employer-employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results," with the latter the more important element of the test.

The IslandTutoring Center, Inc. Decision

ITC was in the business of providing general and special education tutoring services to school districts, private schools and private clients and retained private tutors to provide these services.

Kathleen Ritch and Alissa Bianco provided educational tutoring services to ITC's clients. When their employment with ITC ended, they filed applications for unemployment insurance benefits. Initially the Labor Department determined that both Ritch and Bianco [Claimants] were employees of ITC and that ITC was liable for unemployment insurance contributions based on remuneration paid to Claimants and other similarly situated tutors working for ITC. ITC objected, contending that Claimants and the other tutors were independent contractors. Following an administrative hearing, an Administrative Law Judge sustained ITC's objection and overruled the Department's determinations.

Ultimately the Unemployment Insurance Appeal Board reversed the determinations of the Administrative Law Judge and sustained the Department's initial decision that Claimants were employees and not independent contractors. ITC appealed but the Appellate Division affirmed the Board’s determination.

The court explained that it had previously held that an organization which screens the qualifications of professionals, pays them at a set rate and then offers their services to clients "exercises sufficient control to create an employment relationship."

In this instance, said the court, the record establishes that ITC advertises for tutors to provide tutoring services to its clients, interviews and screens a prospective tutor's résumé and his or her list of references. If employed, the tutor would typically sign a contract indicating that, among other things, the tutor was an independent contractor. When a client contacted ITC to request tutoring services, it would select a tutor from its database and inform that tutor of the area of study or subject to be instructed and the number of tutoring hours required. Although tutors were free to decline assignments, ITC did not permit tutors to provide their own substitutes after accepting an assignment.

Further, ITC required tutors to fill out time sheets and its session report forms in order to receive payment. As to payment, ITC paid its tutors prior to receiving payment from its clients, reimbursed tutors for certain expenses and loaned tutors teaching materials from its library when necessary. ITC also handled its clients' complaints and feedback concerning the performance of its tutors and could remove tutors from assignments if there was a negative complaint.

The Appellate Division held that this constituted substantial evidence supporting the Board's determination that an employer-employee relationship existed and that ITC was liable for contributions on remuneration paid Claimants and to all others determined to be similarly situated to Claimants.

The Syracuse Society for New Music, Inc. Decision

From 1980 to 2011, Linda M. Greene performed as a professional flautist at various new classical music concerts produced by the Syracuse Society for New Music, Inc. [SNM].

In 2012 Greene filed an application for unemployment insurance benefits. The Department of Labor determined that she was an employee — and not an independent contractor — entitled to benefits and that SNM was liable for additional contributions on remuneration paid to Greene and others similarly employed. Following a hearing, an Administrative Law Judge sustained those determinations and, upon administrative appeal, the Unemployment Insurance Appeal Board affirmed. SNM appealed.

The Appellate Division disagreed and reversed the Board’s decision. The court said the record indicated that Greene “was retained only occasionally and sporadically by SNM to perform classical music with an orchestra at various venues; … was paid at a set rate for each concert; was not required to sign a written contract; was permitted to accept or reject any assignments offered; maintained other employment while performing for SNM; and suffered no restrictions of any sort whatsoever upon her ability to perform for other organizations.

Greene testified that she had never missed a performance, but if she had hypothetically needed to be absent, it would be her ethical responsibility to attempt to obtain her own replacement. The treasurer of SNM testified that, assuming circumstances prevented Greene from attending a performance, "it would be a collaboration" to obtain a substitute, although SNM would not generally ask a musician to provide his or her own substitute.

SNM did not provide Greene with equipment nor was she not required to wear a uniform or dress in any particular manner and although the greater portion of the necessary practice for the performances was performed wholly at Greene's discretion, there were necessarily scheduled rehearsals and defined performance dates.

The requirements that Greene rehearse and perform specific pieces of music on set dates at set venues did not, in the court’s view, demonstrate meaningful control but that these requirements were, instead, inescapably inherent in the underlying function, as a concert performance necessarily demands a high level of coordination.

Explaining that a requirement that work be properly performed does not constitute an exercise of control and, in this instance, any alleged control exercised over Greene was necessary to ensure that the work for which she had been retained was carried out properly.

Accordingly, the Appellate Division, Judge Rose dissenting, held that the record lacks substantial evidence demonstrating that SNM exercised overall control over important aspects of Greene's work such as to place her within the ambit of an employer-employee relationship with SNM.

The ITC decision is posted on the Internet at:

The SNM decision is posted on the Internet at:

NOTE: Readers may be interested in participating in a free Internal Revenue Service Webcast Worker Classification: Employee or Independent Contractor? scheduled to be held on Thursday, May 12, 2016. For additional information and the link to register for the Webcast, go to:


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