State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 3, 2015 520076 

________________________________

In the Matter of the Claim of

JESSIE THOMAS,

Respondent.

GENEVA CONSULTING GROUP, MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: October 21, 2015

Before: Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ.

__________

Timothy McEnaney, Port Washington, for appellant.

Francis J. Smith, Albany, for Jessie Thomas, respondent.

Eric T. Schneiderman, Attorney General, New York City (Gary

Leibowitz of counsel), for Commissioner of Labor, respondent.

__________

Lahtinen, J.P.

Appeals from two decisions of the Unemployment Insurance

Appeal Board, filed February 20, 2014, which ruled, among other

things, that claimant was entitled to receive unemployment

insurance benefits. 

Geneva Consulting Group is a consulting firm that brokers

relationships between its clients and consultants who possess the

skills that the clients need, who are hired to perform

information technology (hereinafter IT) services for the clients. 

Claimant was hired to perform IT services for a Geneva client, a
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large bank, from August 20, 2012 until December 14, 2012. After

claimant's employment ended, she applied for unemployment

insurance benefits and the Department of Labor determined that

she was an employee of Geneva entitled to such benefits and that

Geneva was liable for additional contributions based upon

remuneration paid to claimant and others similarly situated. 

Following a hearing, an Administrative Law Judge upheld that

determination and the Unemployment Insurance Appeal Board

sustained that determination. Geneva appeals.

The evidence at the hearing demonstrated that claimant, who

runs her own consulting business, Jessica Consultant LLC,

responded to an advertisement placed by Geneva that listed the

job requirements and necessary IT background for a position with

its client; Geneva screened her and forwarded her credentials to

its client, which interviewed and approved of claimant. Geneva

required that claimant sign a contract that designated her as the

consultant assigned to perform the IT services for the client,

and labeled her as an independent contractor. Geneva employed

approximately 35 people as consultants who received benefits and

designated another 15 consultants as independent contractors who

were required to be in business for themselves and to obtain,

among other things, their own liability insurance, but Geneva's

chief financial officer conceded that both groups provided the

"same services" and had the "same skills." Geneva contracted

with its client to provide claimant's services and charged the

client for those services, and Geneva paid claimant a negotiated

daily rate. Claimant worked a full-time schedule set by the

client and performed services in the client's office where she

was provided a desk, computer, supplies and support staff. 

Claimant reported regularly to the client's manager, who

instructed her on the client's needs and expectations, trained

her on the client's systems, gave her assignments, set her

deadlines and approved her time sheets, which were submitted to

Geneva for payment. Claimant could not provide substitutes or

refuse assigned work and needed the client's approval to take

time off from work. Notwithstanding evidence in the record to

support a contrary conclusion, the foregoing evidence constitutes

substantial evidence that Geneva, through its clients, supervised

and exercised control over the results produced by claimant as

well as the means employed to achieve those results so as to
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establish that she was an employee of Geneva (see Matter of

Dwightmoore [Fanfair-Commissioner of Labor], 126 AD3d 1221, 1222-

1223 [2015]; Matter of DeRose [Winston Retail Solutions, LLCCommissioner of Labor], 119 AD3d 1174, 1175 [2014]; Matter of

Victor [Aubrey Organics, Inc.-Commissioner of Labor], 116 AD3d

1327, 1327-1328 [2014]; Matter of Rios [La Prairie, Inc.-

Commissioner of Labor], 279 AD2d 681, 681 [2001]). 

However, Geneva's contention that claimant was not entitled

to unemployment insurance benefits because she was not totally

unemployed (see Labor Law § 591 [1]) must be remitted for a

determination thereon. While the original notice of hearing did

not list the issue of total unemployment as an issue to be

determined at the hearing, claimant testified on crossexamination, without objection, about tasks performed and

expenditures made on behalf of her ongoing company after her

services for Geneva were terminated. The Administrative Law

Judge determined that the issue was "premature" and otherwise not

supported by sufficient record evidence (see 12 NYCRR 461.4 [d];

compare Matter of American Home Improvement Prods. [Commissioner

of Labor], 261 AD2d 760, 762 [1999]), a finding undisturbed by

the Board, which we conclude is not supported by substantial

evidence. The issue should have been further developed and

resolved since a finding that claimant was not totally unemployed

would have resulted in a denial of benefits (see Labor Law § 591

[1]; Matter of Lewis [Commissioner of Labor], 106 AD3d 1313,

1313-1314 [2013]).

Egan Jr., Lynch and Devine, JJ., concur.
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ORDERED that the decisions are modified, without costs, by

reversing so much thereof as failed to determine whether claimant

was totally employed and as awarded claimant unemployment

insurance benefits; matters remitted to the Unemployment

Insurance Appeal Board for further proceedings not inconsistent

with this Court's decision; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court