State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 28, 2016 521398 

________________________________

In the Matter of the Claim of 

LINDA ARMBRUSTER,

Respondent.

SUMMIT HEALTH, INC., MEMORANDUM AND ORDER

Appellant.

COMMISSIONER OF LABOR,

Respondent.

________________________________

Calendar Date: March 25, 2016

Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

__________

DLA Piper, New York City (Erin Carney D'Angelo of counsel),

for appellant.

David E. Woodin, Catskill, for Linda Armbruster,

respondent.

Eric T. Schneiderman, Attorney General, New York City (Gary

Leibowitz of counsel), for Commissioner of Labor, respondent.

__________

Lynch, J.

Appeals from two decisions of the Unemployment Insurance

Appeal Board, filed October 6, 2014, which ruled, among other

things, that Summit Health, Inc. was liable for unemployment

insurance contributions on remuneration paid to claimant and

others similarly situated.

Claimant, a licensed practical nurse, worked as a health

examiner for Summit Health, Inc., a health and wellness company
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that provides nurses to perform health screening and testing to

employees of its corporate clients at the client's workplace. 

The Unemployment Insurance Appeal Board determined, among other

things, that claimant was an employee of Summit and that Summit

was liable for unemployment insurance contributions on

remuneration paid to claimant and others similarly situated. 

Summit appeals.

We affirm. Under established law, "[t]he existence of an

employer-employee relationship is a factual issue for the Board

to resolve and its decision will be upheld if supported by

substantial evidence" (Matter of Lobban [Precinct Sec. &

Investigations, Inc.–Commissioner of Labor], 131 AD3d 1294, 1294

[2015]). Here, where "the work of medical professionals is

involved, the pertinent inquiry is whether the purported employer

retained overall control over the work performed" (Matter of

Lawlor [ExamOne World Wide, Inc.–Commissioner of Labor], 130 AD3d

1345, 1346 [2015] [internal quotation marks and citation

omitted]; see Matter of Salamanca Nursing Home, Inc. [Roberts],

68 NY2d 901, 903 [1986]). Moreover, "an organization which

screens the services of professionals, pays them at a set rate

and then offers their services to clients exercises sufficient

control to create an employment relationship" (Matter of Lobban

[Precinct Sec. & Investigations, Inc.–Commissioner of Labor], 131

AD3d at 1294 [internal quotation marks and citation omitted]).

During the relevant period, Summit posted openings for

medical examiners on its website, interviewed applicants and

screened their education, license credentials and experience to

ensure their qualifications and ability to perform the required

medical services. Summit scheduled the clinics with its clients,

who determined what services were needed; Summit then posted the

clinic dates, enabling examiners to sign up to work based upon

their availability, and they were paid a set hourly rate. Summit

provided all of the equipment and supplies for the clinics and

reimbursed the examiners for certain travel and other expenses. 

If examiners could not work as scheduled, they reported to

Summit, which looked for a replacement. Summit solicited

claimant to work for it after reviewing her credentials posted on

a job website. Claimant worked as a health examiner and a

registrar as well as a lead examiner responsible for oversight of
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the clinic, bringing and returning supplies and equipment

provided by Summit, submitting patient consent forms to Summit,

resolving problems and reporting back to Summit after the clinic

was completed. Examiners were required to sign contracts

designating them as independent contractors, which obligated them

to comply with industry best practices and provided training

available for that purpose; they were required to wear a Summit

identification badge and to abide by a dress code at clinics,

among other provisions.

Given the foregoing, we find that there was substantial

evidence to support the Board's determination that Summit

retained sufficient overall control over the work performed by

claimant to establish that she was an employee of Summit,

notwithstanding evidence in the record that would support a

contrary conclusion. To that end, we find the pertinent facts

here to be materially indistinguishable from those in a prior

case in which we concluded that Summit is the employer of its

certified medical technicians (see Matter of Goddard [Summit

Health, Inc.–Commissioner of Labor], 118 AD3d 1200, 1201 [2014],

lv dismissed 24 NY3d 975 [2014]). Finally, the Board correctly

held that its finding of employment applies to others determined

to be similarly situated to claimant (see Labor Law § 620 [1]

[b]; Matter of Mitchum [Medifleet, Inc.–Commissioner of Labor],

133 AD3d 1156, 1157-1158 [2015]).

McCarthy, J.P., Garry, Devine and Clark, JJ., concur.

ORDERED that the decisions are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court