Opinion
520073.
09-03-2015
In the Matter of the Claim of Dwayne J. LOBBAN, Respondent. Precinct Security and Investigations, Inc., Appellant. Commissioner of Labor, Respondent.
The Zuppa Law Firm PLLC, Garden City (Raymond J. Zuppa of counsel), for appellant. Bruce E. Knoll, Albany, for Dwayne J. Lobban, respondent. Eric T. Schneiderman, Attorney General, New York City (Steven Koton of counsel), for Commissioner of Labor, respondent.
The Zuppa Law Firm PLLC, Garden City (Raymond J. Zuppa of counsel), for appellant.
Bruce E. Knoll, Albany, for Dwayne J. Lobban, respondent.
Eric T. Schneiderman, Attorney General, New York City (Steven Koton of counsel), for Commissioner of Labor, respondent.
Before: LAHTINEN, J.P., McCARTHY, GARRY and EGAN JR., JJ.
Opinion
LAHTINEN, J.P.Appeals from two decisions of the Unemployment Insurance Appeal Board, filed January 22, 2014, which ruled that Precinct Security and Investigations, Inc. is liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.
Claimant was recruited by Precinct Security and Investigations, Inc., a company that provides security guards for its clients. After his employment ended, claimant applied for unemployment insurance benefits. The Department of Labor found that an employer-employee relationship existed between claimant and Precinct, and that Precinct was therefore liable for unemployment insurance contributions for remuneration paid to claimant and others similarly situated. Precinct objected and, following a hearing, an Administrative Law Judge upheld the Department's determination. The Unemployment Insurance Appeal Board affirmed and Precinct now appeals.
We affirm. “The existence of an employer-employee relationship is a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence” (Matter of Ruano [Commissioner of Labor], 118 A.D.3d 1088, 1088, 987 N.Y.S.2d 491 [2014], lv. dismissed 24 N.Y.3d 1039, 998 N.Y.S.2d 163, 22 N.E.3d 1031 [2014] [citations omitted]; see Matter of Mackey [Prometric Inc.-Commissioner of Labor], 120 A.D.3d 1493, 1494, 992 N.Y.S.2d 376 [2014] ). Moreover, “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 Kimberg [Hudacs], 188 A.D.2d 781, 781, 591 N.Y.S.2d 98 [1992] ; see Matter of Klotz [Commissioner of Labor], 127 A.D.3d 1459, 1460, 7 N.Y.S.3d 674 [2015] ; Matter of Ivy League Tutoring Connection, Inc. [Commissioner of Labor], 119 A.D.3d 1260, 1260, 990 N.Y.S.2d 358 [2014] ; Matter of Ray Catena Corp. [Commissioner of Labor], 274 A.D.2d 819, 820, 711 N.Y.S.2d 223 [2000] ).
Here, the hearing testimony reflects that Precinct places advertisements on Craigslist seeking security guards, although we note that claimant was referred to Precinct by another security guard. Precinct interviews applicants about their experience and verifies that the applicants are licensed as security guards in New York. As to claimant, he was assigned by Precinct to a hotel. Precinct negotiated with the hotel in setting claimant's rate of pay. Precinct billed the hotel based upon the negotiated hourly rate and paid claimant after subtracting one third of claimant's pay as a commission. If claimant could not report to work on a certain day, he was required to inform Precinct, and claimant could not find his own replacement. In our view, substantial evidence supports the Board's decision, despite evidence in the record that could support a contrary result (see Matter of Klotz [Commissioner of Labor], 127 A.D.3d at 1460, 7 N.Y.S.3d 674 ; Matter of Ivy League Tutoring Connection, Inc. [Commissioner of Labor], 119 A.D.3d at 1261, 990 N.Y.S.2d 358 ; Matter of Lamar [Eden Tech., Inc.-Commissioner of Labor], 109 A.D.3d 1038, 1039, 971 N.Y.S.2d 369 [2013] ). Further, we reject Precinct's claim that it was denied its due process rights by not having an opportunity to cross-examine claimant. Precinct did not ask that claimant be called as a witness or request that the Administrative Law Judge issue a subpoena to ensure claimant's testimony (see Matter of O'Connor [Howell–Hartnett], 165 A.D.2d 946, 948, 561 N.Y.S.2d 318 [1990] ). In any event, Precinct was not prejudiced by claimant's absence at the hearing, as the Board's decisions are supported by the testimony of Precinct's witness (see Matter of Sweeney [Boeckmann, Jr. & Assoc.-Hudacs], 191 A.D.2d 911, 912, 595 N.Y.S.2d 262 [1993] ; Matter of O'Connor [Howell–Hartnett], 165 A.D.2d at 948, 561 N.Y.S.2d 318 ).
ORDERED that the decisions are affirmed, without costs.
McCARTHY, GARRY and EGAN JR., JJ., concur.