Opinion
January 22, 1970
Appeal by the alleged employer from a decision of the Unemployment Insurance Appeal Board, filed August 8, 1968, assessing additional contributions for the period from January 1, 1966 to December 31, 1966. Appellant is engaged in the business of conducting market surveys and employs the services of interviewers in connection with these surveys. The sole question presented on this appeal is whether there is substantial evidence in the record to sustain the board's finding that these interviewers were employees rather than independent contractors. The record reveals they were furnished questionnaires for each survey. The purpose for the questionnaires was to enable the interviewers to obtain the information desired by appellant's clients. Instructions were given by appellant in the use of the questionnaires. There was a deadline for the return of the questionnaires to the employer. At times the interviewers were advised where to conduct the surveys and even at what time of day. Their work was validated by telephoning a percentage of those interviewed. They were usually paid on an hourly basis. If the work was not done properly, they were not paid. Whether an individual is an employee or an independent contractor depends on the existence of a right of control in respect to the manner in which his work is to be done. ( Matter of Morton [ Miller], 284 N.Y. 167, 172.) An employee works under the instructions and orders of the employer as to the way he does his work; the independent contractor may use his own discretion in doing it. In the instant case the evidence sustains the finding that there was sufficient control over the interviewers by the employer to justify the board's decision. Since this is a factual determination we must accept it as final and conclusive. ( Matter of Electrolux Corp. [ Miller], 288 N.Y. 440; Matter of Nicotera [ Catherwood], 33 A.D.2d 584; Matter of Hawley [ Catherwood], 30 A.D.2d 1002.) Decision affirmed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur in memorandum by Sweeney, J.