State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 28, 2016 520636 

________________________________

In the Matter of the Claim of

 MICHAEL D. STRAUSS,

Respondent.

RMC RESEARCH CORPORATION, MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: December 15, 2015

Before: McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

__________

Day Pitney, LLP, Stamford, Connecticut (Daniel L. Schwartz

of counsel), for appellant.

Michelle I. Rosien, Philmont, for Michael D. Strauss,

respondent.

Eric T. Schneiderman, Attorney General, New York City

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

__________

McCarthy, J.P.

Appeals from two decisions of the Unemployment Insurance

Appeal Board, filed May 12, 2012, which ruled, among other

things, that RMC Research Corporation is liable for additional

unemployment insurance contributions on remuneration paid to

claimant and others similarly situated.

RMC Research Corporation, an educational research firm,

contracted with the New York City Department of Education to
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provide teaching consultants, known as "peer observers," for the

purpose of evaluating teachers who had received unsatisfactory

ratings by school administrators. RMC retained former teachers,

including claimant, to act as peer observers at various schools

within the Department's jurisdiction. After entering into a

"consultant agreement" with RMC and receiving a case assignment,

claimant was required to make 10 site visits to the school where

the unsatisfactory teacher was assigned, six for observation,

three for consultation and one for final assessment. In

addition, he was required to prepare specific documentation –

including observation reports, an individualized professional

development plan and a final assessment letter – in connection

with his assignment, and to complete it within 10 weeks. 

Ultimately, claimant's evaluation and those of the other peer

observers were used to assist school administrators in

determining whether a disciplinary proceeding should be brought

to remove the teacher under review.

The sole issue presented here is whether substantial

evidence supports the Unemployment Insurance Appeal Board's

finding that claimant, and other similarly situated peer

observers, were employees of RMC. Initially, we note that the

existence of an employment relationship is a factual issue for

the Board to resolve, and its determination in this regard is

beyond judicial review if it is supported by substantial evidence

(see Matter of Empire State Towing & Recovery Assn., Inc.

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

Lobban [Precinct Security & Investigations, Inc.–Commissioner of

Labor], 131 AD3d 1294, 1294 [2015]). While no single factor is

determinative, where, as here, the services of teaching

professionals are involved, "the pertinent inquiry is 'whether

the purported employer retains control of important aspects of

the services performed'" (Matter of Wilner [Primary Stages Co.,

Inc.–Commissioner of Labor], 128 AD3d 1148, 1149 [2015], lv

dismissed 26 NY3d 955 [2015], quoting Matter of Piano School of

N.Y. City [Commissioner of Labor], 71 AD3d 1358, 1359 [2010]).

Turning to the facts applicable to claimant and the other

peer observers, claimant was required as part of RMC's hiring

process to submit an application, undergo an interview and

provide references. Once hired and after signing the consultant
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agreement, he received six hours of training, was paid a hourly

rate set by RMC, was expected to work three to four hours per

week for a total of 36 weeks during the 10-week assignment and

submitted a voucher provided by RMC on the 15th of each month to

receive payment for hours worked. Notably, claimant was paid for

services rendered regardless of whether RMC received payment from

the client. Moreover, RMC's name appeared at the top of the

documents that claimant was required to prepare and it determined

their format. Furthermore, during the course of his assignment,

claimant interacted with RMC's project director who reviewed his

observation reports for comprehensiveness, clarity, spelling and

grammar. Any complaints about claimant's performance or that of

the other peer observers were directed to RMC, and it arranged

for a replacement if an assignment could not be completed. The

foregoing illustrates that there is substantial evidence that RMC

retained overall control over important aspects of claimant's

work to establish the existence of an employment relationship

(see Matter of Wilner [Primary Stages Co. Inc.–Commissioner of

Labor], 128 AD3d at 1149-11150; Matter of Stewart [ALM Partners

LLC–Commissioner of Labor], 118 AD3d 1198, 1199 [2014]). 

Accordingly, we find no reason to disturb the Board's decisions.

Egan Jr., Lynch and Clark, JJ., concur.

ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court