State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: September 18, 2014 517750 

________________________________

In the Matter of AMOS E. 

MACKEY,

Respondent.

PROMETRIC INC., MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: August 4, 2014

Before: Lahtinen, J.P., McCarthy, Lynch, Devine and Clark, JJ.

__________

Jackson Lewis, LLP, Albany (Kristi M. Rich of counsel), for

appellant.

Cynthia Feathers, Glens Falls, for Amos E. Mackey,

respondent.

__________

Appeals from two decisions of the Unemployment Insurance

Appeal Board, filed January 15, 2013, which ruled, among other

things, that Prometric Inc. is liable for additional unemployment

insurance contributions based on remuneration paid to claimant

and others similarly situated.

Prometric Inc. is a provider of testing and assessment

services, and had a contract with New York to evaluate candidates

wishing to become certified nursing assistants. Prometric

entered into consulting and service agreements with individuals

known as nurse aide evaluators (hereinafter NAEs) to proctor the

written tests and administer the practical skills examinations

given to these candidates. NAEs were required to be registered
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nurses in good standing in New York with at least two years of

experience and one year of experience in long-term care. 

Claimant was retained by Prometric for this purpose. When he

ceased working for Prometric, he applied for unemployment

insurance benefits. Following extended proceedings, the

Unemployment Insurance Appeal Board ruled that claimant and other

similarly situated NAEs were employees of Prometric and that it

is liable for additional unemployment insurance contributions

based on remuneration paid to these individuals. It further

ruled that claimant was entitled to receive benefits. Prometric

appeals from both of these decisions.

The sole issue is whether there is an employment

relationship between Prometric and claimant, and the other

similarly situated NAEs. It is well settled that the existence

of an employment relationship is a factual issue for the Board to

decide and its determination will be upheld if supported by

substantial evidence (see Matter of Concourse Ophthalmology

Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of Crahan

[Progress Rail Servs. Corp.–Commissioner of Labor], 116 AD3d

1277, 1277-1278 [2014]). Significantly, where, as here, the work

of medical professionals is involved, the pertinent inquiry is

whether the purported employer retained overall control over the

work performed (see Matter of Goddard [Summit Health, Inc.

–Commissioner of Labor], 118 AD3d 1200, 1201 [2014]; Matter of

Scinta [Examone World Wide Inc.–Commissioner of Labor], 113 AD3d

959, 960 [2014]; Matter of Guidicipietro [Hariton & D'Angelo,

LLP–Commissioner of Labor], 24 AD3d 1159, 1160 [2005]). 

Here, Prometric developed an assessment tool to be used to

evaluate the skills that a test candidate needed to perform and

conducted annual training sessions with claimant and other NAEs

to ensure consistency in testing. Prometric interviewed

individuals that it wished to retain as NAEs and reimbursed them

for mileage and travel expenses. It established an hourly rate

of pay for specific work activities, but other rates were

sometimes negotiated depending upon the circumstances. The work

of the NAEs was performed off site either at nursing homes or

training facilities and the NAEs chose their work assignments

from a computer-generated list. Although the NAEs had

flexibility in scheduling their assignments and did not have set
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hours, if an NAE was unable to show, Prometric was responsible

for finding a replacement or canceling the test. Notably,

Prometric provided claimant with all testing materials and other

equipment needed to evaluate the candidates, had him wear an

identification badge and required him to maintain strict

confidentiality. Furthermore, Prometric had a senior nurse

evaluator conduct an annual review of claimant's work who

assisted him in correcting any deficiencies. The foregoing

indicates that Prometric retained sufficient overall control over

the work of claimant and other similarly situated NAEs to be

considered their employer (see Matter of Goddard [Summit Health

Inc.–Commissioner of Labor], 118 AD3d at 1201-1202). 

Accordingly, notwithstanding the written agreement labeling

claimant an independent contractor (see Matter of Professional

Career Ctr. [Commissioner of Labor], 105 AD3d 1219, 1220 [2013]),

substantial evidence supports the Board's decisions.

Lahtinen, J.P., McCarthy, Lynch, Devine and Clark, JJ.,

concur.

ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court