State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 21, 2015 519861 

________________________________

In the Matter of the Claim of

RENEA E. AUSSICKER,

Respondent.

PARK RIDE FLY USA, MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: March 31, 2015

Before: Peters, P.J., Garry, Rose and Devine, JJ.

__________

Tabner, Ryan & Keniry, LLP, Albany (Brian M. Quinn of

counsel), for appellant.

Cynthia Feathers, Glens Falls, for Renea E. Aussicker,

respondent.

Eric T. Schneiderman, Attorney General, New York City

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

__________

Appeals from two decisions of the Unemployment Insurance

Appeal Board, filed December 10, 2013, which ruled, among other

things, that Park Ride Fly USA was liable for unemployment

insurance contributions based on remuneration paid to claimant

and others similarly situated. 

Park Ride Fly USA (hereinafter PRF) is a third-party

booking agency servicing customers seeking to make reservations

at various off-site airport parking facilities. It maintains a

website through which the majority of its customers make their
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reservations. PRF engaged individuals, such as claimant, to act

as customer service representatives to provide telephone support

to customers needing assistance with booking online reservations. 

Claimant provided such services for PRF for approximately one

year, after which she applied for unemployment insurance

benefits. Claimant was subsequently awarded benefits and PRF was

assessed unemployment insurance contributions based on

remuneration paid to claimant and others similarly situated. The

Unemployment Insurance Appeal Board agreed, upon concluding that

an employment relationship existed between PRF and claimant, as

well as other similarly situated customer service

representatives. PRF now appeals. 

We affirm. Initially, "[i]t is well settled that the

existence of an employment relationship is a factual issue for

the Board to decide and its determination will be upheld if

supported by substantial evidence" (Matter of Speilberger

[Commissioner of Labor], 122 AD3d 998, 999 [2014]; see Matter of

Empire State Towing & Recovery Assn., Inc. [Commissioner of

Labor], 15 NY3d 433, 437 [2010]). "While no single factor is

determinative, control over the results produced or the means

used to achieve those results are pertinent considerations, with

the latter being more important" (Matter of Joyce [Coface N. Am.

Ins. Co.–Commissioner of Labor], 116 AD3d 1132, 1134 [2014]

[internal quotation marks and citations omitted]). 

Here, claimant was offered the position after an informal

interview with PRF's Director of Online Services who agreed to

pay her the requested hourly rate of $11. Although claimant and

other representatives worked from home and were required to

provide their own Internet service, PRF furnished them with

special phones that utilized the voice over Internet protocol

necessary to assist customers. In addition, PRF provided

training on use of the phones as well as the services that it

provided to its customers. Although PRF did not establish set

hours and allowed the representatives to hold other jobs, it set

up a schedule online that the representatives completed by

selecting the hours that they wished to work, and PRF emailed

them their final schedules. Claimant and the other

representatives submitted invoices for hours worked that PRF

would, in turn, check against their work schedules. Notably, PRF
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was able to monitor the representatives while they were assisting

customers to verify that they were working and to ensure quality

service. Moreover, PRF handled customer complaints and took

corrective action where necessary. In view of the foregoing,

although there is evidence that would support a contrary

conclusion, substantial evidence supports the Board's finding

that PRF exercised sufficient control over the manner in which

claimant and the other customer service representatives performed

their work such as to be deemed their employer (see Matter of

Yoga Vida NYC, Inc. [Commissioner of Labor], 119 AD3d 1314, 1315

[2014], lv granted 24 NY3d 909 [2014]; Matter of Cohen [Just

Energy Mktg. Corp.–Commissioner of Labor], 117 AD3d 1112, 1113

[2014], lv dismissed 24 NY3d 928 [2014]). Therefore, we find no

reason to disturb the Board's decisions.

Peters, P.J., Garry, Rose and Devine, JJ., concur.

ORDERED that the decisions are affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court