Opinion
2015-04-02
In the Matter of the Claim of John RAMIREZ, Respondent. Propoint Graphics LLC, Appellant. Commissioner of Labor, Respondent.
Cozen O'Connor, New York City (Michael C. Schmidt of counsel), for appellant. Francis J. Smith, Albany, for John Ramirez, respondent.
Cozen O'Connor, New York City (Michael C. Schmidt of counsel), for appellant. Francis J. Smith, Albany, for John Ramirez, respondent.
Before: LAHTINEN, J.P., ROSE, EGAN JR. and CLARK, JJ.
Appeals from two decisions of the Unemployment Insurance Appeal Board, filed August 30, 2013, which, among other things, ruled that Propoint Graphics LLC was liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.
Claimant, a graphic designer, performed services for Propoint Graphics LLC from October 2011 until January 2012. He subsequently applied for unemployment insurance benefits. The Department of Labor ruled that he was eligible to receive benefits and also assessed Propoint for additional unemployment insurance contributions based on remuneration paid to claimant and others similarly situated. Propoint objected and, following a hearing, an Administrative Law Judge overruled these determinations. The Unemployment Insurance Appeal Board, however, reversed and concluded that an employment relationship existed between Propoint and claimant, as well as others similarly situated. Propoint now appeals.
Initially, it is well settled that the existence of an employment relationship is a factual issue for the Board to resolve and its determination will not be disturbed if supported by substantial evidence ( see Matter of LaValley [West Firm PLLC–Commissioner of Labor], 120 A.D.3d 1498, 1499, 992 N.Y.S.2d 378 [2014]; Matter of Yoga Vida NYC Inc. [Commissioner of Labor], 119 A.D.3d 1314, 1314, 989 N.Y.S.2d 710 [2014], lv. granted24 N.Y.3d 909, 2014 WL 6475794 [2014] ). “The determination rests not on one single factor, but consideration is given to whether control was exercised over the results or the means used to achieve those results, with the latter factor deemed more important” (Matter of McCollum [Fire Is. Union Free Sch. Dist.-Commissioner of Labor], 118 A.D.3d 1203, 1204, 987 N.Y.S.2d 708 [2014] [citations omitted]; see Matter of Yoga Vida NYC Inc. [Commissioner of Labor], 119 A.D.3d at 1314, 989 N.Y.S.2d 710).
Here, claimant responded to a website posting and, after being interviewed, was selected by Propoint to work on client projects at a mutually agreed pay rate of $28 per hour. He was paid every two weeks regardless of whether Propoint received payment from the client. Although there were no set working hours, claimant performed most of his work at the employer's premises, where he was provided with a computer, software and related items, and he was required to turn in daily time cards. Propoint did not provide claimant with any leave time or other benefits, withhold taxes from his paychecks or prohibit him from working for others, and it required him to sign an independent contractor agreement. Propoint, however, retained the right to review claimant's work product and direct him to make changes. Moreover, the confidentiality provisions of the independent contractor agreement precluded claimant from including client projects in his personal portfolio. Inasmuch as the foregoing demonstrates that Propoint retained control over both the means and the results of claimant's work, substantial evidence supports the Board's finding of an employment relationship ( see generally Matter of Limperis [Aufbau Trust–Commissioner of Labor], 9 A.D.3d 762, 762, 779 N.Y.S.2d 845 [2004]; Matter of Ibarra [Jes Label & Tape Inc.-Sweeney], 238 A.D.2d 664, 655 N.Y.S.2d 675 [1997] ). Although Propoint asserts that the Board's finding is inconsistent with a prior determination of the Department of Labor that treated another of its graphic designers as an independent contractor, the record does not contain sufficient information concerning the nature of this individual's relationship with Propoint to make a comparison. Therefore, we find no reason to disturb the Board's decisions.
ORDERED that the decisions are affirmed, without costs.