In re Securities Research Services, Inc.

122 A.D.2d 504, 505 N.Y.S.2d 468, 1986 N.Y. App. Div. LEXIS 59782

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 31, 1986
• Status: Published

Opinions

— Casey, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 19, 1985.

Securities Research Services, Inc. (Securities) maintains a listing of individuals, known as consultants, who have expertise in various fields of the banking and securities industry. When a client has a need for the services of a consultant, Securities selects the appropriate individual and sends him to the client for an interview. Both the client and the consultant are free to reject the offer. The consultant works at the client’s premises and the consultant’s activities are directed by the client. The Unemployment Insurance Appeal Board, in adopting the findings and conclusions of the Administrative Law Judge, found that Securities does not exercise direction and control over the consultants. Nonetheless, the Board found an employer-employee relationship on the basis of the similarity between the instant case and that of the ordinary employment agency situation, citing Matter of Rinaldi (General Off. Serv. Bur. — Corsi) (281 App Div 1051, lv denied 306 NY 982). There must be a reversal.

The linchpin of the employer-employee relationship is the reservation of control and direction to the employer (Matter of Villa Maria Inst. [Ross], 54 NY2d 691). Hence, it has been said that "[a] determination that an 'employer-employee’ relationship exists must rest upon evidence that [the 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 NY2d 895, 897), and control over the means has been described as "the more important factor to be considered” (Matter of Ted Is Back Corp. [Roberts], 64 NY2d ). "Thus, incidental control over the results produced without further indicia of control over the means employed to achieve the results will not constitute substantial evidence of an employer-employee relationship” (id.). In those cases involving professional services which do not lend themselves to control over the details of the work and the results produced, the Board’s determination of an employer-employee relationship will be sustained if it is "supported by substantial evidence of control over important aspects of the services performed other than results or means” (Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736).

In the case at bar, the Board expressly found that "[t]he employer takes no deductions and other than advising the consúltanos] as to where they are to report for an assignment the employer does not direct in any matter the work that is performed”. In view of the Board’s finding of a lack of control over any important aspect of the services performed by the consultants, the determination cannot be sustained, even under the less stringent standard set forth in Matter of Concourse Ophthalmology Assoc. (Roberts) (supra).

Although Board decisions finding an employer-employee relationship under fact patterns similar to that herein have been sustained (see, e.g., Matter of Schwartz [Creative Tutoring —Roberts], 91 AD2d 778; Matter of Rinaldi [General Off. Serv. Bur. — Corsi], supra), in no case has the Board found an employment relationship despite an express finding that the alleged employer does not direct "in any matter” the work that is performed. Such inconsistent findings render the Board’s decision irrational.

We have examined Matter of Gentile Nursing Servs. (Roberts) (106 AD2d 763, revd on dissenting opn below 65 NY2d 622), relied upon by the dissent, and find that case distinguishable on its facts.

Decision reversed, with costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. Mahoney, P. J., Casey, Yesawich, Jr., and Harvey, JJ., concur.