New Team, LLC v. Comm'r of Labor

201 A.D.3d 1140

161 N.Y.S.3d 471

In the Matter of NEW TEAM, LLC, Appellant.

v.COMMISSIONER OF LABOR, Respondent.

530592

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

Calendar Date: November 22, 2021

Decided and Entered: January 13, 2022

Littler Mendelson PC, Melville (Kelly C. Spina of counsel), for appellant.

Letitia James, Attorney General, New York City (Mary Hughes of counsel), for respondent.

Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 24, 2019, which assessed New Team, LLC for additional unemployment insurance contributions.

New Team, LLC is a professional corporation that offers, among other things, marketing services and the development of branding campaigns and/or marketing strategies to its clients. To facilitate the provision of these services, New Team recruits brand ambassadors (also known as promotional specialists) through word of mouth and online advertising and then maintains a database that contains a list of brand ambassadors who would provide services at bars and other venues where New Team's clients would hold marketing events. As a result of an audit for the period of July 1, 2010 through September 30, 2013, the Department of Labor issued a determination that assessed New Team additional unemployment insurance contributions based upon remuneration paid to its brand ambassadors. Hearings ensued, and the Unemployment Insurance Appeal Board ultimately sustained the Department's determination assessing additional unemployment insurance contributions, finding, in relevant part, that New Team exercised or reserved the right to exercise sufficient supervision, direction or control over the services performed by the brand ambassadors to establish an employment relationship for purposes of additional unemployment insurance contributions. New Team appeals.

We affirm. "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 Thomas [US Pack Logistics, LLC–Commissioner of Labor], 189 A.D.3d 1858, 1859, 138 N.Y.S.3d 244 [2020] [internal quotation marks and citations omitted]; see Matter of Vega [Postmates Inc. -Commissioner of Labor], 35 N.Y.3d 131, 136, 125 N.Y.S.3d 640, 149 N.E.3d 401 [2020] ). "Substantial evidence is a minimal standard requiring less than a preponderance of the evidence. As such, if the evidence reasonably supports the Board's choice, we may not interpose our judgment to reach a contrary conclusion" ( Matter of Vega [Postmates Inc. -Commissioner of Labor], 35 N.Y.3d at 136–137, 125 N.Y.S.3d 640, 149 N.E.3d 401 [internal quotation marks, brackets and citations omitted]). "Traditionally, the Board considers a number of factors in determining whether a worker is an employee or an independent contractor, examining all aspects of the arrangement. But the touchstone of the analysis is whether the employer exercised control over the results produced by the worker or the means used to achieve the results. The doctrine is necessarily flexible because no enumerated list of factors can apply to every situation faced by a worker, and the relevant indicia of control will necessarily vary depending on the nature of the work" ( id. at 137, 125 N.Y.S.3d 640, 149 N.E.3d 401 [internal quotation marks, brackets, footnote and citations omitted]; see Matter of Mayo [Epstein–Commissioner of Labor], 193 A.D.3d 1199, 1200, 145 N.Y.S.3d 675 [2021] ; Matter of Jordan [Alterna Holdings Corp.-Commissioner of Labor], 187 A.D.3d 1264, 1265, 131 N.Y.S.3d 440 [2020] ).

The record reflects that New Team advertised for brand ambassadors using the Internet and directed potential brand ambassadors, many of whom were actors and models given their experience in promotional work, to submit online applications. New Team provided the brand ambassadors with training and emailed the training materials to brand...