State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 9, 2015 519720 

________________________________

In the Matter of the Claim of

NICOLE S. LEE,

Respondent.

ENCORE NATIONWIDE INC., MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: February 24, 2015

Before: Lahtinen, J.P., Egan Jr., Rose and Clark, JJ.

__________

Brody & Associates, LLC, Westport, Connecticut (Robert G.

Brody of counsel), for appellant.

McNamee, Lochner, Titus & Williams, PC, Albany (Francis J.

Smith of counsel), for Nicole S. Lee, respondent.

Eric T. Schneiderman, Attorney General, New York City

(Marjorie S. Leff of counsel), for Commissioner of Labor,

respondent. 

__________

Appeal from a decision of the Unemployment Insurance Appeal

Board, filed November 20, 2013, which ruled, among other things,

that Encore Nationwide Inc. is liable for unemployment insurance

contributions on remuneration paid to claimant and others

similarly situated.

Encore Nationwide Inc. challenges a decision of the

Unemployment Insurance Appeal Board finding, among other things,

that claimant and others similarly situated were its employees,
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not independent contractors, for whom is it liable for

unemployment insurance contributions. Based upon a thorough

review of the record before us, we are compelled to find that the

Board's decision is not supported by substantial evidence and,

therefore, it must be reversed.

Encore is an event staffing company that refers

individuals, which it calls brand ambassadors, to clients that

want to promote a product or service at an event. Claimant

worked as a brand ambassador. Encore maintains a database that

contains postings of client events as well as a list of brand

ambassadors. Encore assembles the list by having the brand

ambassadors, most of whom are promotional models, complete a

registration form, a W9-form and a profile containing specific

information about themselves. When client events are posted on

Encore's website, those interested in working the event express

their interest and the client selects them from the database. 

The client then informs Encore which, in turn, bills the client

for services rendered as well as an agency fee after the event is

concluded.

In determining whether an employment relationship existed

between Encore and its brand ambassadors, the pertinent inquiry

is whether Encore exercised control "over the results produced or

the means used to obtain those results, with control over the

latter being the more important factor to consider" (Matter of

Holleran [Jez Enters., Inc.–Commissioner of Labor], 98 AD3d 757,

758 [2012]; see Matter of Empire State Towing & Recovery Assn.,

Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]; Matter of

Smith [College Network Inc.–Commissioner of Labor], 109 AD3d

1058, 1059 [2013]). Here, the evidence reveals that Encore

retained little or no control over either the means or results of

the work performed by the brand ambassadors. Significantly,

Encore did not conduct interviews, auditions or background

checks, did not review credentials or set the rate of pay, did

not provide training or supervision at events, did not establish

work schedules, did not supply equipment, clothing or props and

did not evaluate performance. Notably, it was the clients who

directed the brand ambassadors by providing them with instruction

on how to promote the specific products or services. Contrary to

claimant's suggestion, there is nothing to indicate that these
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clients were acting as agents of Encore. Accordingly, inasmuch

as we find the requisite control lacking, we reverse the Board's

decision (see Matter of Richins [Quick Change Artistry,

LLC–Commissioner of Labor], 107 AD3d 1342, 1344 [2013]; Matter of

Best [Lusignan–Commissioner of Labor], 95 AD3d 1536, 1537-1538

[2012]; compare Matter of Ivy League Tutoring Connection, Inc.

[Commissioner of Labor], 119 AD3d 1260, 1261 [2014]). In light

of the foregoing, we need not address Encore's remaining claims.

Lahtinen, J.P., Egan Jr., Rose and Clark, JJ. concur.

ORDERED that the decision is reversed, without costs, and

matter remitted to the Unemployment Insurance Appeal Board for

further proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court