259 A.D. 486 | N.Y. App. Div. | 1940
The Unemployment Insurance Appeal Board, in a proceeding instituted under the provisions of the Labor Law (§ 523),1 has determined that appellant is liable for contributions upon the earnings of its salesmen.. This appeal is permitted by the Labor Law (§ 535).
The employer, a New York State corporation, is a wholly-owned subsidiary of Fidelity Investment Association, a West Virginia corporation. It contracts with investors to issue bonds or undertakings similar to the baby bonds issued by the United States government, whereunder the purchaser agrees to make monthly
Written agreements are made between appellant and its salesmen whereunder the latter inter alia agree not to solicit subscriptions in a dishonest or unethical manner nor .engage in any conduct which will adversely affect the business, good standing or reputation of the appellant. The contract provides that a salesman “ shall be free to exercise his own judgment in selecting persons from whom he will solicit subscriptions, and in choosing the time, place and manner of solicitation * * * ” and “ nothing contained in this agreement shall be construed to create the relationship of employer and employee between the party of the first part and the party of the second part.” The latter provision is not determinative of the relation in the event that the actualities indicate otherwise. (Matter of Glielmi v. Netherland Dairy Co., 254 N. Y. 60.)
The salesmen receive portfolios containing advertising material; are requested to file weekly reports of their activities; to call daily at headquarters to attend meetings whereat methods of canvassing are advocated and discussed. No expense allowance is made, but while attending the meetings they are permitted the occasional use of the company telephone. Prospects are not invited to meet the salesmen at the company’s office.
Five of appellant’s salesmen gave evidence concerning the actual relationship with appellant employer: (1) A sewing machine agent who worked at his regular occupation from nine-thirty a. m. until five or six in the afternoon and sold rock wool insulation and roofing in the evening. At the time he gave his testimony he was spending about two hours a week canvassing for the sale of the bonds. Before he began selling insulation and roofing he had averaged not over six hours a week. He attended the daily meetings “ possibly once a month.” He had made only two weekly reports in a year and a half and during that time had earned between $75 and $100. (2) Began work for appellant in August, 1938; was engaged in the real estate business and working for the Nassau County Chamber of Commerce in a membership drive. He devoted from
“As a general rule, where a person is employed to perform a certain kind of work * * * which requires the exercise of skill and judgment, * * * the execution of which is left entirely to his discretion, with no restriction as to its exercise and no limitation as to the authority conferred in respect to the same, and no provision is especially made as to the time in which the work is to be done, or as to the payment for the services rendered, and the compensation is dependent upon the value thereof, such person does not occupy the relation of a servant under the control of the master, but he is an independent contractor.” (Hexamer v. Webb, 101 N. Y. 377, 383.) An independent contractor is one who may perform the work at any reasonable time after the agreement has been made and is free to proceed in accordance with his own ideas and not subject to direction in respect of the method, means or procedure used, nor subject to discharge because the work is done in one way rather than in another. (Matter of Litis v. Risley Lumber Co., 224 N. Y. 321; Matter of Beach v. Velzy, 238 id. 100.) “ An agreement to perform work is not in true sense a contract of employment unless the workman is bound to submit to the will of
The decision of the Appeal Board is reversed on the law, with costs.
The court disapproves of the findings of fact and conclusions of law made and makes a new finding as matter of law that the salesmen of appellant, under the proof submitted, are not employees but independent contractors.
Bliss, Heffernan, Schenck and Foster, JJ., concur.
Decision of the Appeal Board reversed on the law, with costs against the Appeal Board.
The court disapproves of the findings of fact and conclusions of law made and makes a new finding as a matter of law that the salesmen of appellant, under the proof submitted, are not employees but independent contractors,