ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

December 17, 2014

Determining if an individual is an employee or an independent contractor of an entity

Determining if an individual is an employee or an independent contractor of an entity
Lustgarten (New York Psychotherapy & Counseling Ctr.--Commissioner of Labor), 2014 NY Slip Op 08538, Appellate Division, Third Department

Samuel H. Lustgarten, a psychiatrist, provided services for clients of New York Psychotherapy and Counseling Center (NYPCC) for approximately 10 years. After his employment ended, he applied for unemployment insurance benefits. The Department of Labor initially determined that claimant was an employee of NYPCC and that NYPCC was liable for contributions based on remuneration paid to Lustgarten and others similarly situated.

NYPCC objected, contending that Lustgartenwas an independent contractor. An Unemployment Administrative Law Judge sustained the initial determination that Lustgarten was eligible for unemployment insurance benefits, which decision was affirmed by the Unemployment Insurance Appeal Board.

NYPCC appealed the Board's determination, which ruling was sustained by the Appellate Division.
The court explained that "Whether there exists an employee-employer relationship 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.” With respect to medical professionals, the pertinent inquiry is whether the alleged employer exercised overall control over the work performed."

In this instance the record revealed that NYPCC [1] referred the patients to Lustgartenand scheduled their initial appointments; [2] paid Lustgarten an hourly wage for the time he treated the patients and [3] billed the patients for the services provided by Lustgarten.

Further, said the court, Lustgarten was paid by NYPCC regardless of whether it was reimbursed by the patients or their health plans.

Additionally Lustgartenworked in an office provided by NYPCC on NYPCC's premises for which he only paid a nominal weekly fee of $9.87 and would generate a treatment record that is accessed by NYPCC's doctors and staff. 

Affirming the Board's determination, the Appellate Division decided that substantial evidence in the record supported the Board's determination that NYPCC retained sufficient overall control over the work performed by Lustgarten [and those similarly situated] to establish an employee-employer relationship despite other proof in the record that could support a contrary result.

To assist in determining whether an individual is an employee under the common-law rules, the IRS has identified 20 characteristics as guidelines in determining whether sufficient control is present to establish an employer-employee relationship. 

Not every factor is applicable in every situation, and the degree of importance of each factor varies depending on the type of work and individual circumstances. In any event, all relevant factors are considered in making a determination as to the status of an individual as an employee or an independent contractor and no one factor is decisive.

The 20 factors being used by the IRS are:

1. Instructions. An employee must comply with instructions about when, where, and how to work. Even if no instructions are given, the control factor is present if the employer has the right to control how the work results are achieved.

2. Training. An employee may be trained to perform services in a particular manner. Independent contractors ordinarily use their own methods and receive no training from the purchasers of their services.

3. Integration. An employee's services are usually integrated into the business operations because the services are important to the success or continuation of the business. This shows that the employee is subject to direction and control.

4. Services rendered personally. An employee renders services personally. This shows that the employer is interested in the methods as well as the results.

5. Hiring assistants. An employee works for an employer who hires, supervises, and pays workers. An independent contractor can hire, supervise, and pay assistants under a contract that requires him or her to provide materials and labor and to be responsible only for the result.

6. Continuing relationship. An employee generally has a continuing relationship with an employer. A continuing relationship may exist even if work is performed at recurring although irregular intervals.

7. Set hours of work. An employee usually has set hours of work established by an employer. An independent contractor generally can set his or her own work hours.

8. Full-time required. An employee may be required to work or be available full-time. This indicates control by the employer. An independent contractor can work when and for whom he or she chooses.

9. Work done on premises. An employee usually works on the premises of an employer, or works on a route or at a location designated by an employer.

10. Order or sequence set. An employee may be required to perform services in the order or sequence set by an employer. This shows that the employee is subject to direction and control.

11. Reports. An employee may be required to submit reports to an employer. This shows that the employer maintains a degree of control.

12. Payments. An employee is generally paid by the hour, week, or month. An independent contractor is usually paid by the job or on straight commission.

13. Expenses. An employee's business and travel expenses are generally paid by an employer. This shows that the employee is subject to regulation and control.

14. Tools and materials. An employee is normally furnished significant tools, materials, and other equipment by an employer.

15. Investment. An independent contractor has a significant investment in the facilities he or she uses in performing services for someone else.

16. Profit or loss. An independent contractor can make a profit or suffer a loss.

17. Works for more than one person or firm. An independent contractor is generally free to provide his or her services to two or more unrelated persons or firms at the same time.

18. Offers services to general public. An independent contractor makes his or her services available to the general public.

19. Right to fire. An employee can be fired by an employer. An independent contractor cannot be fire so long as he or she produces a result that meets the specifications of the contract.

20. Right to quit. An employee can quit his or her job at any time without incurring liability. An independent contractor usually agrees to complete a specific job and is responsible for its satisfactory completion, or is legally obligated to make good for failure to complete it.

Additional information concerning the status of an individual as an employee or as an independent contractor is posted on the Internet at: 
The Lustgarten decision is posted on the Internet at:


Determining if an individual is an employee or an independent contractor of an entity

Determining if an individual is an employee or an independent contractor of an entity
Lustgarten (New York Psychotherapy & Counseling Ctr.--Commissioner of Labor), 2014 NY Slip Op 08538, Appellate Division, Third Department

Samuel H. Lustgarten, a psychiatrist, provided services for clients of New York Psychotherapy and Counseling Center (NYPCC) for approximately 10 years. After his employment ended, he applied for unemployment insurance benefits. The Department of Labor initially determined that claimant was an employee of NYPCC and that NYPCC was liable for contributions based on remuneration paid to Lustgarten and others similarly situated.

NYPCC objected, contending that Lustgartenwas an independent contractor. An Unemployment Administrative Law Judge sustained the initial determination that Lustgarten was eligible for unemployment insurance benefits, which decision was affirmed by the Unemployment Insurance Appeal Board.

NYPCC appealed the Board's determination, which ruling was sustained by the Appellate Division.
 
The court explained that "Whether there exists an employee-employer relationship 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.” With respect to medical professionals, the pertinent inquiry is whether the alleged employer exercised overall control over the work performed."

In this instance the record revealed that NYPCC [1] referred the patients to Lustgartenand scheduled their initial appointments; [2] paid Lustgarten an hourly wage for the time he treated the patients and [3] billed the patients for the services provided by Lustgarten.

Further, said the court, Lustgarten was paid by NYPCC regardless of whether it was reimbursed by the patients or their health plans.

Additionally Lustgartenworked in an office provided by NYPCC on NYPCC's premises for which he only paid a nominal weekly fee of $9.87 and would generate a treatment record that is accessed by NYPCC's doctors and staff. 

Affirming the Board's determination, the Appellate Division decided that substantial evidence in the record supported the Board's determination that NYPCC retained sufficient overall control over the work performed by Lustgarten [and those similarly situated] to establish an employee-employer relationship despite other proof in the record that could support a contrary result.

To assist in determining whether an individual is an employee under the common-law rules, the IRS has identified 20 characteristics as guidelines in determining whether sufficient control is present to establish an employer-employee relationship. 

Not every factor is applicable in every situation, and the degree of importance of each factor varies depending on the type of work and individual circumstances. In any event, all relevant factors are considered in making a determination as to the status of an individual as an employee or an independent contractor and no one factor is decisive.

The 20 factors being used by the IRS are:

1. Instructions. An employee must comply with instructions about when, where, and how to work. Even if no instructions are given, the control factor is present if the employer has the right to control how the work results are achieved.

2. Training. An employee may be trained to perform services in a particular manner. Independent contractors ordinarily use their own methods and receive no training from the purchasers of their services.

3. Integration. An employee's services are usually integrated into the business operations because the services are important to the success or continuation of the business. This shows that the employee is subject to direction and control.

4. Services rendered personally. An employee renders services personally. This shows that the employer is interested in the methods as well as the results.

5. Hiring assistants. An employee works for an employer who hires, supervises, and pays workers. An independent contractor can hire, supervise, and pay assistants under a contract that requires him or her to provide materials and labor and to be responsible only for the result.

6. Continuing relationship. An employee generally has a continuing relationship with an employer. A continuing relationship may exist even if work is performed at recurring although irregular intervals.

7. Set hours of work. An employee usually has set hours of work established by an employer. An independent contractor generally can set his or her own work hours.

8. Full-time required. An employee may be required to work or be available full-time. This indicates control by the employer. An independent contractor can work when and for whom he or she chooses.

9. Work done on premises. An employee usually works on the premises of an employer, or works on a route or at a location designated by an employer.

10. Order or sequence set. An employee may be required to perform services in the order or sequence set by an employer. This shows that the employee is subject to direction and control.

11. Reports. An employee may be required to submit reports to an employer. This shows that the employer maintains a degree of control.

12. Payments. An employee is generally paid by the hour, week, or month. An independent contractor is usually paid by the job or on straight commission.

13. Expenses. An employee's business and travel expenses are generally paid by an employer. This shows that the employee is subject to regulation and control.

14. Tools and materials. An employee is normally furnished significant tools, materials, and other equipment by an employer.

15. Investment. An independent contractor has a significant investment in the facilities he or she uses in performing services for someone else.

16. Profit or loss. An independent contractor can make a profit or suffer a loss.

17. Works for more than one person or firm. An independent contractor is generally free to provide his or her services to two or more unrelated persons or firms at the same time.

18. Offers services to general public. An independent contractor makes his or her services available to the general public.

19. Right to fire. An employee can be fired by an employer. An independent contractor cannot be fire so long as he or she produces a result that meets the specifications of the contract.

20. Right to quit. An employee can quit his or her job at any time without incurring liability. An independent contractor usually agrees to complete a specific job and is responsible for its satisfactory completion, or is legally obligated to make good for failure to complete it.

Additional information concerning the status of an individual as an employee or as an independent contractor is posted on the Internet at: 
The Lustgarten decision is posted on the Internet at:


December 16, 2014

Due process considerations involving employees on leave of absence pursuant to CSL §71 as the result of a work related injury or disease or CSL §72 as the result of an injury or disease not related to employment


Due process considerations involving employees on leave of absence pursuant to CSL §71 as the result of a work related injury or disease or CSL §72 as the result of an injury or disease not related to employment
Allen v City of New York, 2014 NY Slip Op 08369, Appellate Division, First Department

The Appellate Division affirmed a Supreme Court's ruling that the City of New York violated Lionel Allen, then on workers' compensation leave pursuant to §71, when it terminated him from such leave.
Initially the City had terminated Allen pursuant to Civil Service Law §73, However, terminating an employee pursuant to Civil Service Law §73 is permitted only in the event the individual is on leave as the result of a disability resulting from non-occupational injuries or disease pursuant to §72 of the Civil Service Law.

The City then rescinded Allen's termination under color or §73 and terminated petitioner pursuant to Civil Service Law §71, which provides for leaves of absence in the event an employee suffers and injury or disease within the meaning of the Workers' Compensation Law. resulting from occupational injuries, retroactive to the original termination date.

The Appellate Division ruled that such action, taken without providing Allen any further opportunity to be heard, violated due process, rejecting the City's argument that the requirements for notice and opportunity to be heard are substantively identical with regard to the two sections and that Allen failed to make the requisite showing of mental and physical fitness for his position in response to the initial notice of intent to terminate him from his position.

In the words of the Appellate Division, “Even assuming that this is true, certain differences between the two provisions — including that 'section 71 affords greater procedural protections and opportunities for reinstatement (Matter of Allen v Howe , 84 NY2d 665, 673 [1994])-— as well as practical differences in petitioner's position at the time he was notified pursuant to each section, dictate that the process provided failed to satisfy basic requirements of fairness.”

The court also rejected the City's argument that even if Allen's due process rights were violated, “the [Supreme] court should still have ordered a hearing to determine whether [Allen] was fit to return to duty on the originally designated date of termination,” explaining that doing so would have effectively nullified the Supreme Court's due process holding.

The Appellate Division than commented that “Having vacated [the City's] determination terminating [Allen's] employment [pursuant to §73], there is no basis for the medical examination, pursuant to Civil Service Law §71, for an employee seeking reinstatement after being 'separated from the service by reason of a disability.'"

Some additional elements to consider when determining the rights of employees place on §§71 or 72. leave.

In Duncan v NYS Developmental Center, 63 NY2d 128, the Court of Appeals held that the appointing authority, at its discretion, may terminate an employee on §71 leave after he or she has been absent for one year or longer [or two years or longer in the event the employee's §71 disability leave resulted from an assault sustained in the course of his or her employment]. 
 
§73 of the Civil Service Law applies in cases where the employee is absent because of an injury or disease not related to work for a consecutive period of one or more years pursuant to §72 of the Civil Service Law. In contrast, §71 of the Civil Service Law provides for absences resulting from job related injuries and diseases and the Court of Appeals has held that an employee who has been cumulatively absent on §71 leave for a period year or two years or more, as the case may be, depending on the rules of the civil service commission having jurisdiction*, may be terminated from his or her position pursuant to §71 itself.

Both §§71 and 73, however, set out post-termination procedures for the purpose of considering applications for reinstatement submitted by an employee terminated pursuant to §§71 and 72, respectively, within one year following the end of their disability.

* See, for example, 4 NYCRR 5.9, which provisions apply to employees of the State of New York as the employer in the classified service.

The Allen decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_08369.htm

December 15, 2014

National Publication Names NYS’s Tax Policy Director “Person of the Year”



National Publication Names NYS’s Tax Policy Director, Deputy Commissioner Robert Plattner, “Person of the Year”
Source: New York State Department of Taxation and Finance
A national publication has honored the NYS Tax Department’s policy chief with its annual Person of the Year Award for his vital role in the passage of sweeping corporate tax reform.
State Tax Notes, the preeminent publication on state tax issues, honored Deputy Commissioner Robert Plattner, the Tax Department’s Director of the Office of Tax Policy and Analysis, with this prestigious recognition in its December 15th edition.
The national publication presents the award each December to an individual or organization that had the most influence on state tax policy and practice during the past year.  In addition to “Person of the Year,” State Tax Notes recognized Mr. Plattner in an additional award category as “Administrator of the Year.” 
State Tax Notes chose Mr. Plattner for the awards “for spearheading the multi-year effort that led to reform.”  That reform has received accolades for making the law fairer and simpler, modernizing it to reflect the current marketplace, and enhancing the State’s business climate. 
The work on reform began within the agency, but then entered a phase of extensive discussions with the corporate community and other constituencies.  With critical support from Governor Andrew M. Cuomo and his Tax Reform and Fairness Commission, the reform legislation was included in the Governor’s Executive Budget for 2014-15, and signed into law shortly thereafter. 
The reforms promote fairness and help businesses invest with confidence, while ensuring a stable and predictable revenue flow for New York State.  As a result, it is easier and less expensive for businesses to comply with their tax responsibilities, and more likely that state revenues will result from voluntary compliance, rather than costly audits.   
The changes received widespread support from numerous organizations, including the Partnership for New York City, the Business Council of New York, the Tax Foundation, and the Securities Industry and Financial Markets Association.

Calculating a teacher's seniority for layoff and preferred eligible list purposes


Calculating a teacher's seniority for layoff and preferred eligible list purposes 
Decisions of the Commissioner of Education, Decision No. 16,686

An educator [Teacher A] challenged the actions of the School District in calculating her seniority for layoff and  preferred eligibility list  purposes. Teacher A claimed that this miscalculation resulted in her loss of an opportunity to be recalled to a full-time leave replacement substitute teaching position and asked the Commissioner to declare that she had greater seniority to another teacher, Teacher B, and to direct the District "to immediately transfer her to the relevant full-time leave replacement position and correct her place on the seniority list. 
 
The Commissioner noted that due to budgetary constraints, the School District had abolished both TeacherA's and Teacher B's positions in the elementary tenure area.

Although the Commissioner dismissed Teacher A's appeal on procedural grounds,* the decision notes that "Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits."

The Commissioner said that prior to Teacher A's appointment as a probationary teacher she had served in various capacities as a per diem substitute teacher in the district. The District had credited Teacher B with 8.97794 years of seniority and had credited Teacher A with 8.44 years of seniority. Teacher A alleged that District incorrectly calculated her seniority by failing to include time served as a "regular and consistent substitute."

Teacher A contended that based on the actual duties performed while serving as a per diem substitute in the elementary tenure area, she should be provided seniority credit for time served as a per diem substitute. The District, in contrast, argued that it had accurately calculated Teacher A's seniority, which should not include periods of time during which Teacher A served as a temporary per diem substitute.

The Commissioner explained that "It is well settled that service as a full-time regular substitute teacher entitles such teacher to seniority credit, when such service immediately precedes a probationary appointment." However, said the Commissioner, it is also clear that “an ‘itinerant’ or per diem substitute assigned on a temporary, as-needed basis does not accumulate seniority.”

In addition, the Commissioner observed that it is the nature and continuity of the particular substitute assignment that determines whether or not such service was regular, and therefore sufficient to warrant seniority credit.

While Teacher A was properly granted seniority credit for the period in which she served as a full-time leave replacement or regular substitute teacher in one particular class, the Commissioner said that the record reflected that other specific substitute service for which Teacher A sought seniority credit was, by its nature, per diem. 
 
Although Teacher A was required to report to one of the School District's elementary schools, the fact that Teacher A served in certain classrooms for a few days or a week at a time on an as-need basis does not change the fundamental nature of her position as a per diem substitute position. Accordingly, although Teacher A's substitute service may have been regular and consistent within the school building, because she substituted for various teachers, in various capacities, and for various time periods, the Commissioner said that the School District had  properly omitted Teacher A’s per diem substitute service when calculating her seniority.

* The most significant omission was A's failure to name B as a necessary party as B's rights could be adversely affected were A to prevail in her appeal,

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume54/d16686

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Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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