In the Matter of the Claim of KELLENE V. SCINTA, Respondent.
COMMISSIONER OF LABOR, Respondent. EXAMONE WORLD WIDE INC., Appellant. And
Calendar Date: November 25, 2013
Littler Mendelson, PC, New York City (David Warner of counsel), for appellant.
Francis J. Smith, Albany, Kellene V. Scinta, respondent.
Before: Peters, P.J., Rose, Stein and Garry, JJ.
MEMORANDUM AND ORDER
Appeals from two decisions of the Unemployment Insurance Appeal Board, filed June 8, 2012, which ruled, among other things, that ExamOne World Wide Inc. was liable for unemployment insurance contributions based on remuneration paid to claimant and others similarly situated.
ExamOne World Wide Inc. is engaged in the business of providing medical information and laboratory results to insurance companies to assist them in underwriting various types of insurance. It retained individuals with phlebotomy licenses, such as claimant, to act as insurance examiners for the purpose of obtaining blood specimens, administering laboratory tests and taking medical histories from insurance applicants. After claimant ceased working for ExamOne and applied for unemployment insurance benefits, the Department of Labor issued an initial determination finding that claimant was eligible to receive benefits and that ExamOne was liable for contributions based upon remuneration paid to claimant and others similarly situated. An Administrative Law Judge sustained this determination following a hearing and the Unemployment Insurance Appeal Board concurred, ruling that claimant and others similarly situated were employees of ExamOne, not independent contractors . ExamOne now appeals.
Initially, it is well settled that the existence of an employer-employee relationship is a factual issue for the Board to decide and its decision will be upheld if supported by substantial evidence (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 N.Y.2d 734, 736 ; Matter of Cobrin [Telecom Consulting Group NE Corp.—Commissioner of Labor], 91 A.D.3d 992 ). Where, as here, medical professionals are involved, the pertinent inquiry is whether the purported employer exercised overall control over the work performed (see Matter of Salamanca Nursing Home [Roberts], 68 N.Y.2d 901, 903 ; Matter of Guidicipietro [Hariton & D'Angelo LLP—Commissioner of Labor], 24 A.D.3d 1159, 1160 ).
Here, evidence was presented that claimant responded to an advertisement for examiners posted by ExamOne on craigslist and, after completing an application detailing her qualifications and passing a background check, she was hired and signed an independent contractor agreement like that provided to all examiners. She was paid a percentage of the amount that ExamOne received from the insurance clients based upon the fee schedule for services prepared by ExamOne that was attached to the independent contractor agreement. In addition, ExamOne provided claimant and other examiners with an instruction manual and forms required by the insurance companies and a laboratory collection kit containing necessary medical supplies. Notably, representatives from ExamOne reviewed the completed forms to make sure they were in compliance with necessary requirements. Moreover, while claimant and other examiners were free to work for other employers, they could not assign work to others without ExamOne's approval. ExamOne also found replacements for examiners who canceled on short notice and fielded complaints about examiners' performances. Furthermore, ExamOne provided claimant and the examiners with identification badges that they were to wear when conducting exams. It also paid them regardless of whether it was paid by the client.
Notwithstanding other proof in the record that could support a contrary result, the foregoing constitutes substantial evidence supporting the conclusion that ExamOne retained sufficient overall control over important aspects of the work of claimant and other similarly situated examiners to be considered their employer (see Matter of Guidicipietro [Harton & D'Angelo LLP—Commissioner of Labor], 24 A.D.3d at 1160; Matter of Skeete [Cooper Sq. Nurses Registry—Commissioner of Labor] 253 A.D.2d 926 , lv denied 93 N.Y.2d 802 ; Matter of Boone [Shore Rd. Community Serv.—Sweeney], 245 A.D.2d 617, 619 ). Therefore, we find no reason to disturb the Board's decision. We have considered ExamOne's remaining contentions and find them to be unpersuasive.
Peters, P.J., Rose, Stein and Garry, JJ., concur.
ORDERED that the decisions are affirmed, ...