Opinion
May 7, 1998
Appeal from the Unemployment Insurance Appeal Board.
The principal issue on this appeal is whether the Unemployment Insurance Appeal Board's decision that claimant, a sales representative for Dinaire Corporation, was an employee rather than an independent contractor is supported by substantial evidence.
It is now well settled that a determination that an employer-employee relationship exists may rest upon evidence that the employer exercises either control over the results produced or, more importantly, over the means used to achieve the results (see, Scott v. Massachusetts Mut. Life Ins. Co., 86 N.Y.2d 429, 433; Matter of Ted Is Back Corp. [Roberts], 64 N.Y.2d 725, 726). Here, the Board predicated its determination on the fact that claimant worked regularly for Dinaire during the base period and the employment agreement assigned her a specific territory and prohibited her from selling to certain national accounts, but nevertheless required her to visit those accounts periodically. Claimant was also prohibited from selling any products that directly competed with Dinaire's. The Board also attached significance to the fact that Dinaire provided sales aids to claimant at no cost and established the prices for the products claimant sold.
Dinaire, on the other hand, maintains that claimant was an independent contractor, pointing out that she worked strictly on a commission basis out of her own home on a schedule of her own choosing and was free to substitute the services of third parties for her own. Dinaire further points out that it did not provide training, support services, fringe benefits, take deductions from claimant's salary or reimburse her for her expenses. Additionally, claimant was not required to file mandatory reports, attend regular meetings or follow Dinaire's personnel policies.
In our view, the fact that claimant was assigned a specific sales territory and prohibited from selling products that competed with Dinaire's, along with the fact that her relationship with the national accounts was governed by Dinaire, show that Dinaire exercised control over the means claimant used to perform her work, thereby providing substantial evidence for the Board's determination (see, Matter of Neil [Enesco Imports Corp. — Hudacs], 180 A.D.2d 990, lv denied 80 N.Y.2d 758; compare, Matter of Monti Moving Stor. [Sweeney], 241 A.D.2d 734, 735). We note that while the record would support a contrary conclusion, inasmuch as the Board's determination is supported by substantial evidence it must be upheld (see, Matter of Caufield-Ori [Blumberg — Sweeney], 233 A.D.2d 558, lv dismissed 89 N.Y.2d 982).
Turning to the secondary issues, we conclude that the Board did not err in ruling that its finding of employment status with respect to claimant applied to other salespersons working for Dinaire under the same terms and conditions (see, Labor Law § 620 Lab. [1][b]). Finally, Dinaire's argument premised on Labor Law § 511 Lab. (1)(b)(2) is misplaced since the Board's determination was not founded on that statute (see, Matter of Pepsi Cola Buffalo Bottling Corp. [Hartnett], 144 A.D.2d 220).
Mercure, J.P., Peters, Spain and Carpinello, JJ., concur.
Ordered that the decision is affirmed, without costs.