Lead Opinion
Appeals from two decisions of the Unemployment Insurance Appeal Board, filed December 23, 2014, which ruled, among other things, that Gail & Rice, Inc. was liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.
Gail and Rice, Inc. (hereinafter G & R) is an entertainment and communication business located in Michigan that primarily secures brand ambassadors for its clients, mostly automotive companies, to market and promote client products in live settings. Claimant, an actor with experience as a brand ambassador, was hired to work a one-day promotional event for a client of G & R, a food company, in New York City on New Year’s Eve in 2013. After claimant applied for unemployment insurance benefits, G & R objected, claiming that he was an independent contractor and not an employee. A hearing was held and the Unemployment Insurance Appeal Board ulti
We have reviewed the record and conclude that the Board’s determination that claimant was an employee of G & R is not supported by substantial evidence (see Matter of Lee [Encore Nationwide Inc. — Commissioner of Labor], 127 AD3d 1399, 1399 [2015]). In determining whether an employer-employee relationship existed, the dispositive inquiry is whether “the [purported] employer exercise [d] control over the results produced or the means used to achieve the results,” although “control over the means is the more important factor to be considered” (Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010] [internal quotation marks and citation omitted]; see Matter of Ritch [Island Tutoring Ctr., Inc. — Commissioner of Labor], 139 AD3d 1151, 1152 [2016]). Here, the uncontroverted testimony of G & R’s account executive established that G & R did not train or instruct claimant on his duties for this event, was not present on the event day and lacked any authority to and did not supervise claimant or the means by which he performed these duties for the client. G & R advertised the position on a Facebook page for brand ambassadors, using information about the event position provided by the client, and it received via email resumes and accompanying photographs from applicants, which it reviewed and submitted to the client, which selected its brand ambassadors. Claimant was free to decline the position and was permitted to and had worked for other brand promoters; after the client selected claimant and other individuals for this event, G & R provided them with written show information and guidelines supplied by the client, which outlined the details and expectations for the event.
G & R also sent claimant a welcome letter agreement — that the parties signed — designating him as an independent contractor and that required, among other provisions, that any substitutes be approved; it also set forth the client’s expectations and rules.
While the agreement provided that Michigan law governed, the issue here is not one of contract interpretation but, rather, a determination as to claimant’s entitlement to unemployment insurance benefits in New York and G & R’s obligation for unemployment insurance contributions on remuneration paid in New York to claimant and others similarly situated, which is governed by the laws of New York.
Concurrence Opinion
concur. Ordered that the decisions are reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court’s decision.
