Opinion
July 16, 1987
Appeal from the Unemployment Insurance Appeal Board.
The question presented on this appeal is whether claimant worked as an employee or independent contractor for the corporate employer, a manufacturer of wire and cable. Claimant was engaged by the employer to cut wires and place conductors on each end. She performed this service at home. Claimant picked up the wire, conductors and storage boxes at the employer's premises, and upon completion of each task would return the items to the employer. The employer weighed the wire both at pickup and return. Claimant learned how to attach the conductors from her mother who performed a similar service for the employer. Nonetheless, the employer provided specific written and oral instructions with each order. In addition, each order had a quota and some a deadline. Claimant provided the employer with a record of work performed and was paid on a piece-work basis at a rate set by the employer. If the work proved unsatisfactory, claimant was required to correct it at her own expense. Claimant was required to file a certificate of doing business as a precondition to obtaining work from the employer. The Unemployment Insurance Appeal Board concluded that claimant was an "[i]ndustrial homeworker" as defined in Labor Law § 350 (2) (f), that all industrial homeworkers are presumed to be employees pursuant to Labor Law § 361-a, and, in any event, that an employer-employee relationship existed under common-law principles.
The statutory provisions read as follows:
"`Industrial homeworker' means any person who manufactures in a home, in whole or in part, with or out of material furnished by an employer for industrial homework, any article or articles to be returned to such employer directly or indirectly, or to be delivered, mailed or shipped to others" (Labor Law § 350 [2] [f]).
"Employment status of industrial homeworkers
"All industrial homeworkers shall be presumed to be employees of their employer and not independent contractors" (Labor Law § 361-a).
On this appeal, the employer maintains that the statutory presumption was rebutted and that the characterization of claimant as an employee is not supported by substantial evidence. We disagree. As described, claimant's services fall squarely within the definition of "[i]ndustrial homeworker" (Labor Law § 350 [f]; see, Matter of Roberts v. Industrial Bd. of Appeals, 101 A.D.2d 674, 675, lv denied 63 N.Y.2d 607). Although rebuttable, the statutory presumption thus pertains. Whether an employer-employee relationship exists, however, remains a question of fact for the Board to determine on the basis of control exercised by the employer over the services performed (see, Matter of Rivera [State Line Delivery Serv. — Roberts], 69 N.Y.2d 679, cert denied ___ US ___, 107 S Ct 2181; Matter of Field Delivery Serv. [Roberts], 66 N.Y.2d 516, 521). While control over the results produced and the means utilized is generally determinative, it is evident that the basic nature of claimant's work is not such that permits constant supervision (see, Matter of Daugherty [Catherwood], 24 A.D.2d 919, 920, lv denied 17 N.Y.2d 422; Andrews v. Commodore Knitting Mills, 257 App. Div. 515, 517). An analogy may be drawn to the work of professionals whose specialized services are similarly not subject to control in the manner of other employees (see, Matter of Salamanca Nursing Home [Roberts], 68 N.Y.2d 901, 903). Considering the factors described above, we find sufficient indicia of over-all control to support the Board's finding of an employer-employee relationship (see, Matter of Sepe [Mildred Victor Typing Serv. — Corsi], 281 App. Div. 272; Andrews v Commodore Knitting Mills, supra). That there is evidence indicative of an independent contractor relationship does not compel a different result, where, as here, the Board's determination is supported by substantial evidence (see, Matter of Field Delivery Serv. [Roberts], supra; Matter of Villa Maria Inst. of Music [Ross], 54 N.Y.2d 691, 693).
Decision affirmed, without costs. Main, J.P., Casey, Weiss, Mikoll and Yesawich, Jr., JJ., concur.