In the Matter of the Claim of ROBERT A. CRYSTAL, Respondent. MEDICAL DELIVERY SERVICES, Appellant. COMMISSIONER OF LABOR, Respondent.
Calendar Date: May 4, 2017
Fidopiastis, Queensbury, for appellant.
E. Woodin, Catskill, for Robert A. Crystal, respondent.
T. Schneiderman, Attorney General, New York City (Dawn A.
Foshee of counsel), for Commissioner of Labor, respondent.
Before: Peters, P.J., McCarthy, Egan Jr., Devine and Mulvey,
MEMORANDUM AND ORDER
from two decisions of the Unemployment Insurance Appeal
Board, filed October 28, 2015, which ruled, among other
things, that Medical Delivery Services was liable for
additional unemployment insurance contributions on
remuneration paid to claimant and others similarly situated.
Delivery Services (hereinafter MDS) is a provider of courier
services specializing in the transportation of time-sensitive
radioactive medications that is regulated by state and
federal law. MDS engaged the services of drivers to transport
these medications and contracted with Subcontracting Concepts
Inc. (hereinafter SCI), a payroll company, to act as the
third-party administrator to handle employment-related
matters involving the drivers. Claimant responded to an
advertisement placed by MDS and, after satisfying necessary
requirements, was retained as a driver using his own vehicle.
He entered into an owner/operator agreement with SCI in
connection therewith. When this work ended, he filed a claim
for unemployment insurance benefits. This prompted the
Department of Labor to undertake an inquiry to ascertain the
nature of the relationship between MDS and claimant, as well
as other drivers. The Department concluded that an employment
relationship existed and determined that MDS was liable for
additional contributions on remuneration paid to claimant and
others similarly situated. Following an evidentiary hearing,
a Administrative Law Judge sustained these determinations and
the Unemployment Insurance Appeal Board ultimately agreed.
MDS now appeals.
challenges the Board's assessment of additional
contributions based upon its finding of an employment
relationship. It is well settled that "[w]hether an
employer-employee relationship exists is a question of fact,
to be decided on the basis of evidence from which it can be
found that the alleged employer exercises control over the
results produced ... or the means used to achieve the
results" (Matter of Charles A. Field Delivery Serv.
[Roberts], 66 N.Y.2d 516, 521  [internal quotation
marks and citation omitted]; see Matter of Desravines
[Logic Corp.-Commissioner of Labor], 146 A.D.3d 1205,
1206 ). Notably, control over the means is the more
important factor as it has been recognized that
"[i]ncidental control over the results produced -
without further evidence of control over the means employed
to achieve the results - will not constitute substantial
evidence of an employer-employee relationship"
(Matter of Empire State Towing & Recovery Assn. Inc.
[Commissioner of Labor], 15 N.Y.3d 433, 437 
[internal quotation marks and citation omitted]; see
Matter of Mitchell [The Nation Co. Ltd Partners-Commissioner
of Labor ], 145 A.D.3d 1404, 1405-1406 ).
Furthermore, where some indicia of control is necessitated by
regulatory and legal requirements, such indicia will not,
standing alone, be sufficient to establish an employment
relationship (see Matter of Bogart [LaValle Transp.,
Inc.-Commissioner of Labor], 140 A.D.3d 1217, 1218-1219
; Matter of Harold [Leonard's Transp.-
Commissioner of Labor], 133 A.D.3d 1069, 1070 ,
lv dismissed 26 N.Y.3d 1136');">26 N.Y.3d 1136 ).
MDS placed the advertisement for owner/operator drivers and,
when claimant responded, it conducted the initial interview
and screening, paid for necessary drug tests and provided
claimant with hazardous material training that was required
by the Department of Transportation. Although claimant was
actually paid by SCI and was designated an independent
contractor under the owner/operator agreement, MDS provided
SCI with the funds to pay claimant, set claimant's pay
rate at 59 cents per mile and dictated other aspects of his
compensation, including reimbursement for tolls and fuel
surcharges. Significantly, claimant dealt with MDS, not SCI,
in the performance of his work duties.
accordance with regulatory and legal requirements, MDS
required claimant to adhere to a strict delivery schedule,
report each delivery via his cell phone and submit specific
invoices to MDS for each delivery. In addition, MDS required
claimant to carry certain safety equipment in his vehicle,
including a dosimeter, which MDS monitored to detect
radiation levels. MDS also imposed a dress code, providing
claimant with polo shirts bearing its logo, and furnished him
with an identification badge, lanyard and clipboard
advertising its name. Furthermore, in the event that claimant
wanted to take time off, he needed to provide MDS with
advance notice, and MDS, not claimant, selected the
replacement driver. Although much of the control exercised by
MDS was occasioned by the highly regulated nature of the work
performed, many other aspects of the control that MDS
exercised were not. In view of the foregoing, we find that
substantial evidence supports the Board's finding of an
employment relationship notwithstanding the evidence that
would support a contrary conclusion (see Matter of Harold
[Leonard's Transp.- Commissioner of Labor], 133
A.D.3d at 1071; Matter of Scott [CR England
Inc.-Commissioner of Labor], 133 A.D.3d 935, 938-939
). To the extent that MDS further contends that the
Board's finding should not be applied to other drivers
similarly situated, we find this claim to be without merit
(see Matter of Mitchum [Medifleet, Inc.-Commissioner of
Labor], 133 A.D.3d 1156, 1157 ).
McCarthy, Egan Jr., Devine and ...