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In re Claim of Lamar

Supreme Court of New York, Third Department

September 19, 2013

In the Matter of the Claim of CINDY E. LAMAR, Respondent. and EDEN TECHNOLOGIES, INC., Appellant. COMMISSIONER OF LABOR, Respondent.

Calendar Date: July 29, 2013

Baker & Hostetler, LLP, New York City (Amy J. Traub of counsel), for appellant.

Francis J. Smith, Albany, for Cindy E. Lamar, respondent.

Eric T. Schneiderman, Attorney General, Albany (Marjorie S. Leff of counsel), for Commissioner of Labor, respondent.

Before: Peters, P.J., Lahtinen, McCarthy and Garry, JJ.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 16, 2012, which ruled that Eden Technologies, Inc. is liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.

Claimant worked for Eden Technologies, Inc. from February 2008 through October 2009 providing computer software and systems training services to one of Eden's clients. After her employment ended, claimant applied for unemployment insurance benefits and a hearing was held on the issue of whether claimant was an employee or an independent contractor. Ultimately, the Unemployment Insurance Appeal Board determined that claimant was an employee of Eden and that Eden was liable for contributions based on remuneration paid to claimant and others similarly situated. Eden now appeals.

The existence of an employer-employee relationship is a factual determination for the Board to resolve and its determination will not be disturbed if supported by substantial evidence (see Matter of Jimenez [C & I Assoc., Inc.—Commissioner of Labor], 74 A.D.3d 1587, 1588-1589 [2010]; Matter of Khan [Mirage Limousine Serv., Inc.—Commissioner of Labor], 66 A.D.3d 1098, 1099-1100 [2009], lv denied 13 N.Y.3d 717 [2010]; Matter of Singh [Thomas A. Sirianni, Inc.—Commissioner of Labor], 43 A.D.3d 498, 498 [2007]). This Court has held that "'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 Singh [Thomas A. Sirianni, Inc.—Commissioner of Labor], 43 A.D.3d at 499, quoting Matter of Kimberg [Hudacs], 188 A.D.2d 781, 781 [1992]). In this case, there is proof that Eden sought, interviewed and selected claimant to perform services at the request of a client. On a weekly basis, claimant was required to submit time sheets provided by Eden, including information about what services were provided. Eden then paid claimant directly on a biweekly basis at a set hourly rate and billed the client separately. Additionally, certain restrictions were placed upon claimant's provision of services to Eden's clients and other entities during her employment and for one year following separation. Thus, although there is evidence that could support a different result, we find substantial evidence to support the Board's decision (see Matter of Jaeger [Vendor Control Serv., Inc.—Commissioner of Labor], 106 A.D.3d 1360, 1360-1361 [2013]; Matter of Wells [Madison Consulting, Inc.—Commissioner of Labor], 77 A.D.3d 993, 995 [2010]).

Peters, P.J., Lahtinen, McCarthy and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.


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