State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 27, 2016 520746 

________________________________

In the Matter of the Claim of 

BERTRAND BAEZ,

Respondent.

PD 10276, INC., Doing Business 

as JAN-PRO CLEANING MEMORANDUM AND ORDER

SYSTEMS,

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: September 8, 2016

Before: Garry, J.P., Egan Jr., Lynch, Rose and Aarons, JJ.

__________

Jackson Lewis, PC, White Plains (Penny Ann Lieberman of

counsel), for appellant.

Pamela B. Bleiwas, Ithaca, for Bertrand Baez, respondent.

Eric T. Schneiderman, Attorney General, New York City

(Steven Koton of counsel), for Commissioner of Labor, respondent.

__________

Aarons, J.

Appeals from two decisions of the Unemployment Insurance

Appeal Board, filed May 28, 2014, which, among other things,

ruled that PD 10276, Inc. was liable for unemployment insurance

contributions on renumeration paid to claimant and others

similarly situated.
-2- 520746 

Claimant operated a janitorial cleaning service based upon

a franchise agreement entered into with PD 10276, Inc., doing

business as Jan-Pro Cleaning Systems (hereinafter Jan-Pro). In

2009, claimant ceased his operations and applied for unemployment

insurance benefits. At the same time, the Department of Labor

conducted an unemployment insurance tax audit of Jan-Pro for the

period January 2006 through December 2007. The Department issued

initial determinations finding that claimant and others similarly

situated were employees of Jan-Pro and that Jan-Pro owed

additional unemployment insurance contributions in the amount of

$30,166.93. Jan-Pro objected and, after a hearing, an

Administrative Law Judge reversed the Department's determinations

and sustained Jan-Pro's objections to the additional

contributions due. On administrative appeal, the Unemployment

Insurance Appeal Board reversed the determinations of the

Administrative Law Judge and found, among other things, that

claimant was an employee of Jan-Pro. These appeals by Jan-Pro

ensued.

Whether an employment relationship exists within the

meaning of the unemployment insurance law is a factual question

for the Board to determine and no one factor is determinative

(see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d

734, 736 [1983]; Matter of Corbin [Telecom Consulting Group NE

Corp.–Commissioner of Labor], 91 AD3d 992, 993 [2012]). "An

employment relationship will be found when the evidence shows

that the employer exercises control over the results produced or

the means used to achieve the results, with control over the

means [being] the more important factor" (Matter of McAlevey

[Agewell Physical Therapy & Wellness, P.C.–Commissioner of

Labor], 126 AD3d 1219, 1220 [2015] [internal quotation marks and

citation omitted]; see Matter of Kristensen [Law Offs. of David

C. Birdoff–Commissioner of Labor], 138 AD3d 1318, 1319 [2016]). 

When the Board's decision is supported by substantial evidence,

it is beyond judicial review even if evidence supporting a

contrary result exists in the record (see Matter of Isaacs

[Speedy Media Assoc., LLC–Commissioner of Labor], 125 AD3d 1077,

1078 [2015]; Matter of Odyssey Transp., LLC [Commissioner of

Labor], 62 AD3d 1175, 1176 [2009]). 
-3- 520746 

We conclude that substantial evidence exists to support the

Board's finding of an employer-employee relationship. The record

evidence demonstrates that Jan-Pro assigned claimant a specific

geographic territory and required new franchisees to undergo

initial mandatory training, which was paid for by Jan-Pro. 

Franchisees were also required to operate the business in

accordance with the procedures established at the training and

the standards set forth by Jan-Pro (see Matter of Gluck [DaVinci

3D Corp.–Commissioner of Labor], 132 AD3d 1045, 1046 [2015];

Matter of Joyce [Coface N. Am. Ins. Co.–Commissioner of Labor],

116 AD3d 1132, 1134 [2014]). To that end, franchisees had to use

Jan-Pro-sanctioned equipment, supplies, products and business

forms (see Matter of Armbuster [Summit Health, Inc.–Commissioner

of Labor], 138 AD3d 1367, 1368 [2016], lv dismissed 28 NY3d 946

[2016]). Jan-Pro helped resolve any complaints between a

customer and a franchisee and retained the right to discontinue a

franchisee's services to any client any time (see Matter of

McAlevey [Agewell Physical Therapy & Wellness, P.C.–Commissioner

of Labor], 126 AD3d at 1220). Jan-Pro provided franchisees with

a starter set of business cards, which contained Jan-Pro's logo,

and claimant's business card listed Jan-Pro's name, logo and

address (see Matter of Interlandi [Cremosa Foods Co., LLC–

Commissioner of Labor], 70 AD3d 1150, 1151 [2010]). Although

claimant had the option of designing his own business card, any

such designs required Jan-Pro's approval. Furthermore, according

to the franchise agreement, if claimant developed any new

concepts or techniques that improved Jan-Pro's business, they

became Jan-Pro's property (see Matter of Redwoodturral [Everest

Prod. Corp.–Commissioner of Labor], 133 AD3d 1064, 1065 [2015]). 

The franchise agreement also contained a non-compete

provision barring claimant from operating for one year in any

area of Jan-Pro's affiliates or franchises (see Matter of

Garbowski [Dynamex Operations E., Inc.–Commissioner of Labor],

136 AD3d 1079, 1080 [2016]). Moreover, the franchise agreement

gave Jan-Pro the sole right to invoice and collect from

claimant's customer accounts, maintain revenue records with

respect to such accounts and accept payment from claimant's

customers. While the franchise agreement designated claimant as

an independent contractor, such terms are not dispositive of

claimant's status (see Matter of Francis [West Sanitation
-4- 520746 

Servs.–Sweeney], 246 AD2d 751, 752 [1998], lvs dismissed 92 NY2d

886 [1998], 93 NY2d 833 [1999]; cf. Matter of Dwyer [Nassau

Regional Off-Track Corp.–Commissioner of Labor], 138 AD3d 1369,

1370 [2016]). 

Based on the foregoing, even though the record contains

evidence that could support a contrary result, because the

Board's decision is supported by substantial evidence, we decline

to disturb it (see Matter of Odyssey Transp., LLC [Commissioner

of Labor], 62 AD3d at 1176; Matter of Pepsi Cola Buffalo Bottling

Corp. [Hartnett], 144 AD2d 220, 222 [1988]). Finally, we find no

error in the Board's determination that Jan-Pro is liable for

contributions on renumeration paid to all others similarly

situated to claimant (see Matter of Ritch [Island Tutoring Ctr.,

Inc.–Commissioner of Labor], 139 AD3d 1151, 1153 [2016]).

Garry, J.P., Egan Jr., Lynch and Rose, JJ., concur.

ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court