In re the Claim of Ortega

217 A.D.2d 725, 628 N.Y.S.2d 889, 1995 N.Y. App. Div. LEXIS 7651

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1995
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 4,1993, which, inter alia, assessed the employer for additional unemployment insurance contributions.

Barbara Neiman, doing business as Health Discovery Systems (hereinafter the employer), employed claimant as an occupational therapy assistant. Claimant applied for unemployment insurance benefits. The Board ultimately determined that claimant was an employee of the employer and eligible for such benefits, and that the employer was liable for unemployment insurance contributions based upon the status of claimant and others as employees rather than independent contractors. The employer appeals.

The record indicates that the employer, which maintained a registry of therapists and assistants, recruited and screened applicants and selected their assignments. Further, payment was made directly by the employer, who essentially set the hourly rate paid. The therapists and assistants were required to report to the employer for quality control, to submit invoices as to hours worked and to notify the employer if unable to fulfill an assignment. In the case of complaints, the employer could remove the therapist or assistant from its registry. Finally, the employer alone billed and collected fees from the clients. We find that these facts provide substantial evidence to support the Board’s decision that the employer exercised sufficient supervision, direction and control to establish an employer / employee relationship.

Mikoll, J. P., Crew III, Casey, Yesawich Jr. and Spain, JJ., concur. Ordered that the decision is affirmed, without costs.