Jordan v. Alterna Holdings Corp.

• Decision Date: 01 October 2020
• Docket Number: 530043
• Citation: 131 N.Y.S.3d 440,187 A.D.3d 1264
• Parties: In the MATTER OF the Claim of Robin E. JORDAN, Respondent. Alterna Holdings Corporation, Appellant. Commissioner of Labor, Respondent.
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 1264

131 N.Y.S.3d 440

In the MATTER OF the Claim of Robin E. JORDAN, Respondent. Alterna Holdings Corporation, Appellant. Commissioner of Labor, Respondent.

530043

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

Calendar Date: September 15, 2020

Decided and Entered: October 1, 2020

Seyfarth Shaw, LLP, New York City (Loren Gesinsky of counsel), for appellant.

Bruce Evans Knoll, Albany, for Robin E. Jordan, respondent.

Letitia James, Attorney General, New York City (Linda D. Joseph of counsel), for Commissioner of Labor, respondent.

Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Aarons, J.

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed March 4, 2019, which ruled, among other things, that Alterna Holding Corporation was liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.

Alterna Holding Corporation produces haircare products that are sold at various retail stores. To facilitate its business, Alterna places sales and education representatives at the stores. These representatives educate store employees and customers about Alterna's products. Claimant was a representative for Alterna at Sephora stores in the New York City area from April 2012 to September 2014. When her employment ended, she applied for unemployment insurance benefits. The Department of Labor issued initial determinations finding claimant to be Alterna's employee and holding Alterna liable for additional unemployment insurance contributions on remuneration paid to claimant and all others similarly situated. Alterna objected and, following a hearing, an Administrative Law Judge overruled the determinations. The Unemployment Insurance Appeal Board, however, disagreed and sustained the initial determinations. Alterna appeals.

We reverse. "Whether there exists an employment relationship is a factual issue for resolution by the Board and its decision will not be disturbed when supported by substantial evidence" ( Matter of Duno [Anthony Stone Investigative & Sec. Servs., Inc. -Commissioner of Labor], 120 A.D.3d 1512, 1512, 992 N.Y.S.2d 385 [2014] [citations omitted]; see Matter of Escoffery [Park W. Exec. Servs. Inc.-Commissioner of Labor], 180 A.D.3d 1294, 1295, 122 N.Y.S.3d 126 [2020] ). "Although no single factor is determinative, the relevant inquiry is whether the purported employer exercised control over the results produced or the means used to achieve those results, with control over the latter being the more important factor" ( Matter of Escoffery [Park W. Exec. Servs. Inc.-Commissioner of Labor], 180 A.D.3d at 1295, 122 N.Y.S.3d 126 [citations omitted]; see Matter of Walsh [TaskRabbit Inc. -Commissioner of Labor], 168 A.D.3d 1323, 1324, 92 N.Y.S.3d 750 [2019] ). "The doctrine is necessarily flexible because no enumerated list of factors can apply to every situation faced by a worker, and the relevant indicia of control will necessarily vary depending on the nature of the work" ( Matter of Vega [Postmates Inc.-Commissioner of Labor], 35 N.Y.3d 131, 137, 125 N.Y.S.3d 640, 149 N.E.3d 401 [2020] ). "Substantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably — probatively and logically" ( Matter of Yoga Vida NYC, Inc. [Commissioner of Labor], 28 N.Y.3d 1013, 1015, 41 N.Y.S.3d 456, 64 N.E.3d 276 [2016] ...