In the Matter of the Claim of JESSE SLATER, Respondent. KAUFMAN LEASING COMPANY LLC, Appellant. COMMISSIONER OF LABOR, Respondent.
Calendar Date: November 15, 2017
J. Wachtel, New York City, for appellant.
Michelle I. Rosien, Philmont, for Jesse Slater, respondent.
T. Schneiderman, Attorney General, New York City (Mary Hughes
of counsel), for Commissioner of Labor, respondent.
Before: Egan Jr., J.P., Rose, Devine, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
from two decisions of the Unemployment Insurance Appeal
Board, filed May 12, 2016, which ruled, among other things,
that Kaufman Leasing Company LLC was liable for unemployment
insurance contributions on remuneration paid to claimant and
others similarly situated.
worked as an office leasing broker for Kaufman Leasing
Company LLC, which is engaged in the business of commercial
real estate brokerage. After claimant was terminated from his
position, he was deemed eligible for unemployment insurance
benefits on the basis that an employer-employee relationship
existed, and Kaufman was assessed for additional unemployment
insurance contributions on remuneration paid to claimant and
those similarly situated. Kaufman objected to the finding of
an employment relationship and, following a hearing, an
Administrative Law Judge affirmed the initial determination.
The Unemployment Insurance Appeal Board affirmed that
decision and this appeal ensued.
affirm. "A determination that an employer-employee
relationship exists must rest upon evidence that [the
purported employer] exercises control over the results
produced by its salespersons or the means used to achieve the
results" (Matter of 12 Cornelia St. [Ross], 56
N.Y.2d 895, 897  [internal quotation marks and citation
omitted]). "Whether an employment relationship exists
within the meaning of the unemployment insurance law is a
question of fact, no one factor is determinative and the
determination of the [Board], if supported by substantial
evidence on the record as a whole, is beyond further judicial
review even though there is evidence in the record that would
have supported a contrary conclusion" (Matter of
Concourse Ophthalmology Assoc. [Roberts], 60 N.Y.2d 734,
736  [citations omitted]; see Matter of Link
[Cantor & Pecorella, Inc.-Commissioner of Labor],
153 A.D.3d 1061, 1062 ).
the record establishes that claimant, a licensed real estate
salesperson, submitted his resume and was interviewed twice
before being hired as an office leasing broker and signing an
independent contractor agreement. Kaufman provided claimant
and those similarly situated an extensive training program
that included assignment of a mentor and instruction by a
third-party vendor hired by the Kaufman that took place
either at Kaufman's offices or the vendor's location.
The training included instruction on best practices, basic
leasing terminology, how to identify prospects, how to make
cold calls and how to negotiate a transaction. Even after
claimant successfully completed the training program within
the probationary period, the services of the vendor were
still available to him. Claimant was paid a draw during the
probationary and training period, for which Kaufman did not
seek reimbursement. Kaufman also provided claimant and those
similarly situated an office with equipment and supplies -
including desks, computers, Internet and multiple listing
service - where claimant and those similarly situated were
expected to report when the office opened at 8:30 a.m. or
otherwise inform a supervisor of his or her whereabouts
during the day.
addition, Kaufman issued claimant and those similarly
situated a work email address, as well as business cards with
the salesperson's name and Kaufman's name on them.
Pursuant to the signed agreement, Kaufman reimbursed claimant
and those similarly situated for certain professional
expenses, set the commission rates, reserved the right to
request monthly reports, required confidential final
transaction reports, provided health insurance at
Kaufman's expense, prohibited the performance of similar
services outside the company and required that the services
be performed to the best of the salesperson's abilities
in a timely and productive manner. Under these circumstances,
substantial evidence supports the Board's finding that
the level of supervision and control exerted by Kaufman
amounted to an employer-employee relationship,
notwithstanding that there was other evidence in the record
to support a contrary conclusion (see Matter of Cushman
& Wakefield, Inc., ___ A.D.3d ___, ___, 61 N.Y.S.3d
732, 735 ; Matter of Link [Cantor &
Pecorella-Commissioner of Labor], 153 A.D.3d at
1062-1063; Matter of Lambert [Staubach Retail Servs. New
England, LLC-Commissioner of Labor], 18 A.D.3d 1049,
1050 ; Matter of Atac [Fashion Realty
Group-Commissioner of Labor], 265 A.D.2d 777, 777
). To the extent that the testimony from a Kaufman
representative contradicted claimant's testimony, this
created a credibility issue for the Hearing Officer to
resolve (see Matter of Spielberger [Commissioner of
Labor], 122 A.D.3d 998, 1000 ).
we find no reason to disturb the Board's finding that the
supervision, direction and control exercised by Kaufman was
beyond the required supervision, as set forth in 19 NYCRR
175.21, of a broker over a real estate salesperson. Finally,
we are unpersuaded by Kaufman's assertion that, in view
of the written agreement, no employment relationship existed
as a matter of law pursuant to Labor Law § 511 (19).
Inasmuch as a review of the written agreement establishes
that it does not set forth all of the required statutory
provisions, the Board properly concluded that the services
provided by claimant, as well as those similarly situated,
were not excluded from the definition of employment as a
matter of law (see Labor Law § 511  [c];
Matter of Nanwani [Greer Real Estate-Hudacs], 193
A.D.2d 1023, 1024 ; see also Matter of Joyce
[Coface N. Am. Ins. Co.-Commissioner of Labor, 116
A.D.3d 1132, 1133 ). Kaufman's remaining
contentions have been reviewed and found to be without merit.
Jr., J.P., Rose, Devine and ...