State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 17, 2014 517526 

________________________________

In the Matter of the Claim of

NATALIE M. DeROSE,

Respondent.

WINSTON RETAIL SOLUTIONS, LLC, MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

(And Two Other Related Claims.)

________________________________

Calendar Date: June 9, 2014

Before: Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.

__________

Epstein Becker & Green, PC, New York City (Dean L.

Silverberg of counsel), for appellant.

Francis J. Smith, Albany, for Natalie M. DeRose and others,

respondents.

__________

Appeals from six decisions of the Unemployment Insurance

Appeal Board, filed November 27, 2012, which ruled that Winston

Retail Solutions, LLC was liable for unemployment insurance

contributions based on remuneration paid to claimants and others

similarly situated.

Winston Retail Solutions, LLC is a retail consulting firm

that provides merchandising coordinators, such as claimants, to

various clothing manufacturers. The merchandising coordinators

assist Winston's clients by, among other things, installing,

stocking and cleaning their display areas in retail stores that
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sell their brand. After claimants ceased working for Winston and

applied for unemployment insurance benefits, the Department of

Labor issued initial decisions finding that Winston was liable

for contributions based upon the exercise of control over

claimants and others similarly situated. An Administrative Law

Judge sustained the decisions following a hearing and the

Unemployment Insurance Appeal Board agreed, ruling that claimants

and others similarly situated were employees of Winston, not

independent contractors. Winston now appeals.

We affirm. "Whether an employer-employee relationship

exists is a factual question to be resolved by the Board and its

determination in that regard will be upheld so long as it is

supported by substantial evidence, even though there may be

evidence in the record that could have supported a contrary

conclusion" (Matter of Perdue [Environmental Compliance,

Inc.–Commissioner of Labor], 47 AD3d 1139, 1139 [2008] [citations

omitted]; accord Matter of Victor [Aubrey Organics, Inc.–

Commissioner of Labor], 116 AD3d 1327, 1327 [2014]). Here, 

claimants were required to sign an agreement with Winston that

provided, among other things, that Winston would set their

schedule and claimants were prohibited from working for any of

Winston's clients during the term of the agreement and for six

months thereafter. Winston provided claimants with orientation

training and training manuals. Claimants were not free to hire

substitutes and had to inform Winston if they could not work on a

given day and Winston would arrange coverage. Winston also

required daily reports from claimants, in some cases, including

pictures, reflecting the services provided each day, and Winston

representatives would review the reports and require claimants to

fix any displays that they found unacceptable. Notwithstanding

the proof in the record that could support a contrary result, the

above constitutes substantial evidence supporting the

determination of the Board that claimants and those similarly

situated were Winston's employees and not independent contractors

(see Matter of Cohen [Just Energy Mktg. Corp.–Commissioner of

Labor], 117 AD3d 1112, 1113 [2014]; Matter of Tekmitchov [Musika

LLC], 110 AD3d 1301, 1301 [2013], lv dismissed 23 NY3d 941

[2014]). Finally, although Winston argues that our prior

decision involving similar employment in Matter of Baker

(P.I.M.M.S. Corp.–Hudacs) (209 AD2d 751 [1994]) is controlling,
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that case is factually distinguishable and we are not persuaded

that a different conclusion is warranted here.

Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.,

concur.

ORDERED that the decisions are affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court