In the Matter of the Claim of PATRICK DESRAVINES, Respondent. and Logic Corporation, Appellant. Commissioner of Labor, Respondent.
Calendar Date: December 13, 2016
& Gold, LLP, New York City (Ryan W. Lawler of counsel),
Ferrara, Monticello, for Patrick Desravines, respondent.
T. Schneiderman, Attorney General, New York City (Mary Hughes
of counsel), for Commissioner of Labor, respondent.
Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons,
MEMORANDUM AND ORDER
from two decisions of the Unemployment Insurance Appeal
Board, filed April 10, 2015, which ruled, among other things,
that Logic Corporation was liable for unemployment insurance
contributions on remuneration paid to claimant and others
Corporation is a recruitment and placement agency that
assists its clients in retaining individuals to perform work
for the clients based upon job descriptions and skill
requirements specified by the client, primarily information
technology (hereinafter IT) services. Claimant was hired in
January 2012 to perform IT and computer services as a desktop
engineer for OSP Group, a client of Logic. After OSP
terminated claimant, claimant applied for unemployment
insurance benefits. The Department of Labor determined that
he was an employee of Logic entitled to such benefits, and
that Logic was liable for additional contributions based upon
remuneration paid to claimant and others similarly situated.
Following hearings,  an Administrative Law Judge concluded
that claimant was an independent contractor and not an
employee of Logic and overruled the initial determination. On
claimant's appeal, the Unemployment Insurance Appeal
Board reversed and upheld the initial determination, finding
that claimant was an employee of Logic, and that Logic was
liable for additional unemployment insurance contributions
based upon remuneration paid to claimant and others similarly
situated. Logic now appeals.
an employer-employee relationship exists is a factual
determination for the Board, and its decision will be upheld
if supported by substantial evidence" (Matter of
Corrente [Select Med. Corp., Inc.-Commissioner of
Labor], 139 A.D.3d 1283, 1284  [internal quotation
marks and citations omitted]). "An employer-employee
relationship ordinarily exists where the putative employer
exercises control over the results produced or the means used
to achieve the results, with control over the latter of more
importance, " although "incidental control over the
results produced without further indicia of control over the
means employed to achieve the results will not constitute
substantial evidence of an employer-employee
relationship" (Matter of Eiber Translations, Inc.
[Commissioner of Labor ], 143 A.D.3d 1080, 1081 
[internal quotation marks and citation omitted]).
claimant responded to an advertisement placed by Logic on a
recruitment website that contained a job description and
information provided by OSP. Claimant and other applicants
submitted resumes to Logic; upon review, Logic forwarded
multiple resumes that met OSP's needs to OSP for
selection. OSP interviewed the applicants of its choice and,
after an interview, OSP offered claimant an IT position as a
desktop engineer. Claimant was paid an hourly rate set by OSP
and agreed to by claimant, with some negotiation. Claimant
worked full time at OSP's offices on a schedule set by
OSP, with work assigned and directed by OSP managers, and an
OSP supervisor approved his time sheets, which were submitted
along with an invoice to Logic for payment to claimant. Logic
thereafter billed OSP for claimant's services and its
fee, but did not pay claimant unless OSP paid Logic. Logic
did not require claimant to attend meetings or submit reports
and provided no training or supplies. Logic did not hire or
fire claimant, did not supervise him or evaluate his work and
did not restrict him from working for OSP's competitors.
Logic essentially "acted as little more than an
intermediary" between OSP and claimant (Matter of
Eiber Translations, Inc. [Commissioner of Labor], 143
A.D.3d at 1082). Contrary to the Board's finding, Logic
did not enter into an independent contractor agreement with
claimant. Rather, the record reflects that while Logic sent
claimant a written independent contractor agreement that
contained no-compete and no-solicitation clauses, among other
provisions, claimant testified that the signature on the
document was not his and the agreement was never signed by
the foregoing, we find that the record fails to contain
substantial evidence to support the Board's conclusion
that Logic exercised sufficient supervision and control over
claimant to demonstrate an employer-employee relationship,
and that any control retained by Logic was, at most,
incidental (see Matter of Yoga Vida NYC, Inc.
[Commissioner of Labor], 28 N.Y.3d 1013, 1015 ;
Matter of Eiber Translations, Inc. [Commissioner of
Labor], 143 A.D.3d at 1082). Even assuming, without
deciding, that claimant's IT position was a professional
one, as the Board concluded, we similarly find that the
record lacks substantial evidence that Logic exercised
"overall control... over important aspects of the
services performed other than results or means"
(Matter of Empire State Towing & Recovery Assn., Inc.
[Commissioner of Labor], 15 N.Y.3d 433, 437-438 
[internal quotation marks and citation omitted]; accord
Matter of Crahan [Progress Rail Servs. Corp.-Commissioner of
Labor], 116 A.D.3d 1277, 1278 ). The unrefuted
testimony of claimant and Logic's principal is that,
aside from recruiting claimant and paying him, Logic had
little knowledge of the services that he provided to OSP or
his job duties, had no control over his assignments or work
performance and did not evaluate or supervise his work.
McCarthy, J.P., Egan Jr., Clark and Aarons, JJ., concur.
that the decisions are reversed, without costs, and matter
remitted to the Unemployment Insurance Appeal Board for
further proceedings not ...