Med. Delivery Servs. v. Comm'r of Labor (In re Kablan)

201 A.D.3d 1220

162 N.Y.S.3d 194

In the MATTER OF the Claim of Pierre KABLAN, Respondent.

Medical Delivery Services, Appellant.

v.Commissioner of Labor, Respondent.

531309

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: December 15, 2021

Decided and Entered: January 20, 2022

Peter Fidopiastis, Glens Falls, for appellant.

Teresa C. Mulliken, Harpersfield, for Pierre Kablan, respondent.

Letitia James, Attorney General, New York City (Dawn Foshee of counsel), for Commissioner of Labor, respondent.

Before: Egan Jr., J.P., Clark, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeals from two decisions of the Unemployment Insurance Appeal Board, filed September 27, 2019, 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.

Medical Delivery Services (hereinafter MDS) is a provider of courier services specializing in the transportation of time-sensitive radioactive medications and is regulated by federal and state laws. MDS retained the services of drivers including claimant to transport the medications, and contracted with a payroll company to act as a third-party administrator handling employment related matters for drivers hired by MDS. MDS retained claimant as a driver after he was screened and vetted for qualifications. When this arrangement ended, claimant applied for unemployment insurance benefits. After an inquiry, the Department of Labor concluded that an employment relationship existed and that MDS was liable for additional contributions on remuneration paid to claimant and other similarly situated drivers. Following a hearing, the Unemployment Insurance Appeal Board ultimately found that an employer-employee relationship existed between MDS and claimant and ruled that MDS was liable for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated. MDS appeals.

We affirm. 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, 498 N.Y.S.2d 111, 488 N.E.2d 1223 [1985] [internal quotation marks, ellipsis and citation omitted]; see Matter of Vega [Postmates Inc.-Commissioner of Labor] , 35 N.Y.3d 131, 137, 125 N.Y.S.3d 640, 149 N.E.3d 401 [2020] ). In Matter of Crystal (Medical Delivery Servs.-Commissioner of Labor ), 150 A.D.3d 1595, 1596–1597, 55 N.Y.S.3d 518 (2017) and a series of subsequent decisions, this Court affirmed findings by the Board that certain claimants performing similar courier services for MDS, under materially indistinguishable circumstances and during the same time period herein, were employees entitled to unemployment insurance benefits (see Matter of Gawrys [Medical Delivery Servs.—Commissioner of Labor], 193 A.D.3d 1195, 147 N.Y.S.3d 183 [2021] ; Matter of Castillo–Mota [Medical Delivery Servs. -Commissioner of Labor], 184 A.D.3d 924, 123 N.Y.S.3d 553 [2020] ; Matter of Ramlall [Medical Delivery Servs. -Commissioner of Labor], 182 A.D.3d 960, 123 N.Y.S.3d 255 [2020] ).

Here, as in the prior MDS cases, the record reflects that MDS exercised or reserved the right to exercise similar indicia of control, including with regard to MDS screening and training claimant, imposing a dress code, setting claimant's rate of pay, handling client complaints, reimbursing claimant for expenses related to the delivery and requiring claimant to adhere to a strict delivery schedule, reporting schedule and submission of invoices. Although here some indicia of control is necessitated by regulatory and legal requirements, which, standing alone, is not sufficient to establish an employment...