State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 25, 2015 519965 

________________________________

In the Matter of the Claim of 

BARBARA B. INGLE, 

Respondent.

THE MECHANICAL SECRETARY, 

INC.,

Appellant. MEMORANDUM AND ORDER

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: June 2, 2015

Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.

__________

Roy Jacobs & Associates, New York City (Roy L. Jacobs of

counsel), for appellant.

Cynthia Feathers, Glens Falls, for Barbara B. Ingle,

respondent.

__________

Lynch, J.

Appeal from a decision of the Unemployment Insurance Appeal

Board, filed January 10, 2014, which ruled, among other things,

that The Mechanical Secretary, Inc. was liable for unemployment

insurance contributions based on remuneration paid to claimant

and others similarly situated.

Claimant was a transcriber of administrative hearing tapes

for The Mechanical Secretary, Inc., a company that provides

various transcription services for its clients. By initial

determination, the Department of Labor granted claimant's
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application for unemployment insurance benefits. Following a

hearing, an Administrative Law Judge found claimant to be an

independent contractor and overruled the initial determination. 

Ultimately, the Unemployment Insurance Appeal Board ruled, among

other things, that an employer-employee relationship existed

between The Mechanical Secretary and claimant and those similarly

situated and that The Mechanical Secretary was liable for

additional unemployment contributions based upon remuneration

paid to those transcribers. This appeal ensued.

"Whether an employment relationship exists within the

meaning of the unemployment insurance law is a question of fact,

no one factor is determinative and the determination of the

[Board], if supported by substantial evidence on the record as a

whole, is beyond further judicial review even though there is

evidence in the record that would have supported a contrary

conclusion" (Matter of Concourse Ophthalmology Assoc. [Roberts],

60 NY2d 734, 736 [1983] [citation omitted]). "An employeremployee relationship exists when the evidence shows that the

employer exercises control over the results produced or the means

used to achieve the results" (Matter of Empire State Towing &

Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437

[2010] [citation omitted]). Here, the record establishes that

The Mechanical Secretary advertised for transcriber positions. 

The president would interview the applicants and assess the

quality of their work. The transcriber was required to have

certain equipment, but The Mechanical Secretary would loan the

transcriber a transcription machine if needed. The Mechanical

Secretary arranged to have the work delivered to and picked up

from the transcribers within a certain area. In claimant's case,

however, because she did not live in close proximity to the

company, she was required to pick her work up at its office and

to return the completed work to that office by 9:00 a.m. 

Claimant was occasionally reimbursed for her travel expenses. 

Significantly, The Mechanical Secretary set the nonnegotiable pay

rate, supplied all the paper needed by the transcribers, and

reviewed the final product for mistakes and would correct any

minor mistakes or, where the mistakes were significant, send it

back to be corrected by the transcriber. Furthermore, The

Mechanical Secretary had to be notified if a transcriber was

going to take any vacation. Given the evidence produced, we find
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that there is substantial evidence to support the Board's finding

that The Mechanical Secretary exercised a sufficient degree of

control over claimant's work to establish an employment

relationship (see Matter of Amoroso [Laraine T. Carmichael Ltd.-

Commissioner of Labor], 22 AD3d 940, 942 [2005]; Matter of

Medical Transcription Plus [Commissioner of Labor], 302 AD2d 689,

690 [2003]; Matter of Bailey [Remee Prods. Corp.-Roberts], 132

AD2d 820, 821 [1987]. 

We are unpersuaded by The Mechanical Secretary's contention

that the Board was bound by a prior unappealed Administrative Law

Judge decision that found medical transcribers that it had used

to be independent contractors. Claimant, who is not a medical

transcriber, was not involved in that prior proceeding such that

there was a full and fair opportunity for her to contest the

decision, nor is the Board "required to conform to the precedent

established in the prior unappealed decision or offer a rational

explanation for not doing so" (Matter of Bull [Yansick Lbr. Co.-

Sweeney], 235 AD2d 722, 723 [1997], lv dismissed 90 NY2d 913

[1997]). In any event, the record before us discloses that The

Mechanical Secretary exercised additional indicia of control over

claimant's work not found with regard to the medical

transcribers.

Peters, P.J., Lahtinen and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court