In re Clarke

• Decision Date: 19 May 2016
• Citation: 2016 N.Y. Slip Op. 03934,31 N.Y.S.3d 684,139 A.D.3d 1285
• Parties: In the Matter of the Claim of Karyn CLARKE, Respondent. Select Medical Corporation, Inc., also known as Select Employment Services Inc., Appellant. Commissioner of Labor, Respondent. (Claim No. 1.). In the Matter of the Claim of Helene M. Walsh, Respondent. Select Medical Corporation, Inc., also known as Select Employment Services Inc., Appellant. Commissioner of Labor, Respondent. (Claim No. 2.).
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 1285
31 N.Y.S.3d 684
2016 N.Y. Slip Op. 03934

In the Matter of the Claim of Karyn CLARKE, Respondent.

Select Medical Corporation, Inc., also known as Select Employment Services Inc., Appellant.

Commissioner of Labor, Respondent. (Claim No. 1.).

In the Matter of the Claim of Helene M. Walsh, Respondent.

Select Medical Corporation, Inc., also known as Select Employment Services Inc., Appellant.

Commissioner of Labor, Respondent. (Claim No. 2.).

Supreme Court, Appellate Division, Third Department, New York.

May 19, 2016.

31 N.Y.S.3d 685

Clifton Budd & DeMaria, LLP, New York City (Daniel C. Moreland of counsel), for appellant.

Michelle I. Rosien, Philmont, for Kayrn Clarke and Helene M. Walsh, respondents.

Before: McCARTHY, J.P., GARRY, EGAN JR., DEVINE and AARONS, JJ.

DEVINE, J.

139 A.D.3d 1286

Appeals (1) from four decisions of the Unemployment Insurance Appeal Board, filed July 17, 2014, which ruled, among other things, that Select Medical Corporation, Inc. was liable for unemployment insurance contributions on remuneration paid to claimants and others similarly situated, and (2) from four decisions of said Board, filed November 19, 2014, which denied a request by Select Medical Corporation, Inc. for reconsideration and/or reopening.

The State Department of Education administers supplemental educational services to eligible children that include speech and occupational therapy (see 20 U.S.C. § 1400 et seq.; 20 U.S.C. § 6301 et seq.; Education Law § 4401 et seq.; Matter of Wright [Mid Is. Therapy Assoc., LLC–Commissioner of Labor], 134 A.D.3d 1216, 1217, 20 N.Y.S.3d 252 [2015] ). Metro

31 N.Y.S.3d 686

Therapy, Inc., a subsidiary of Select Medical Corporation, Inc. (hereinafter collectively referred to as the agency), contracts with county health departments and school districts to provide those services to children. The agency accordingly maintains a database of certified service providers consisting of, as relevant here, licensed occupational therapists, including claimant Karyn Clarke, and occupational therapy assistants, including claimant Helene M. Walsh. Upon receiving a request from its governmental client, the agency contacts potential providers in that area via email or direct calls. The agency paid claimants directly pursuant to a fee schedule that was subject to negotiation, and billed its clients using invoices prepared by claimants documenting the services rendered. Claimants were not reimbursed for expenses and paid for their own liability insurance, obtained their own licenses and required certifications and did not receive employee benefits. Claimants signed independent contractor agreements with the agency that, among other things, permitted them to work for other agencies but prohibited them from soliciting the agency's clients while they worked for the agency and for a two-year period thereafter.

Claimants applied for unemployment insurance benefits in 2010. A combined hearing was held at which Walsh and the vice-president of Metro Therapy, Conrad Kupferman, testified.

139 A.D.3d 1287

The Unemployment Insurance Appeal Board determined, in four decisions, that claimants and those similarly situated were employees of the agency, and that the agency was responsible for unemployment insurance contributions. The agency's subsequent request for reopening and/or reconsideration was denied by the Board in four decisions. The agency now appeals from all of the Board's decisions.

While we are unpersuaded that the Board failed to explain its departure from somewhat similar prior precedent (see Matter of Charles A. Field Delivery Serv. [Roberts], 66 N.Y.2d 516, 520, 498...