Joseph Fisheries Corp. v. Comm'r of Labor

• Decision Date: 10 February 2022
• Docket Number: 532585
• Citation: 202 A.D.3d 1238,164 N.Y.S.3d 670
• Parties: In the Matter of JOSEPH FISHERIES CORP., Appellant. v. COMMISSIONER OF LABOR, Respondent.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 1238

164 N.Y.S.3d 670

In the Matter of JOSEPH FISHERIES CORP., Appellant.

v.COMMISSIONER OF LABOR, Respondent.

532585

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

Calendar Date: January 14, 2022

Decided and Entered: February 10, 2022

Law Office of Neil R. Finkston, Great Neck (Neil R. Finkston of counsel), for appellant.

Letitia James, Attorney General, New York City (Marjorie S. Leff of counsel), for respondent.

Before: Garry, P.J., Clark, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 23, 2020, which assessed Joseph Fisheries Corp. additional unemployment insurance contributions based on remuneration paid to certain persons.

Joseph Fisheries Corp. (hereinafter JFC) is a commercial fishing enterprise that owns two federally-permitted fishing vessels. To operate its business and the fishing vessels, JFC, through word of mouth, recruits and retains the services of boat captains who, in turn, recruit crew members within the fishing community. Prior to providing any of their services, the boat captains and crew members entered into written agreements with JFC, as is required by federal law.¹ As a result of an audit for the period January 1, 2014 to December 31, 2016, the Department of Labor issued a determination that assessed JFC additional unemployment insurance contributions based upon remuneration paid to its captains and crew members included in the audit. A hearing ensued, and the Unemployment Insurance Appeal Board ultimately sustained the Department's determination assessing additional unemployment insurance contributions, finding, in relevant part, that JFC exercised or reserved the right to exercise sufficient supervision, direction or control over the services performed by the captains and crew members to establish an employment relationship for purposes of additional unemployment insurance contributions.² JFC appeals.

We affirm. "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 Thomas [US Pack Logistics, LLC–Commissioner of Labor], 189 A.D.3d 1858, 1859, 138 N.Y.S.3d 244 [2020] [internal quotation marks and citations omitted]; see Matter of Vega [Postmates Inc. -Commissioner of Labor], 35 N.Y.3d 131, 136, 125 N.Y.S.3d 640, 149 N.E.3d 401 [2020] ). "Substantial evidence is a minimal standard requiring less than a preponderance of the evidence. As such, if the evidence reasonably supports the Board's choice, we may not interpose our judgment to reach a contrary conclusion" ( Matter of Vega [Postmates Inc. -Commissioner of Labor], 35 N.Y.3d at 136–137, 125 N.Y.S.3d 640, 149 N.E.3d 401 [internal quotation marks, brackets and citations omitted]). "Traditionally, the Board considers a number of factors in determining whether a worker is an employee or an independent contractor, examining all aspects of the arrangement. But the touchstone of the analysis is whether the employer exercised control over the results produced by the worker or the means used to achieve the results. 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" ( id. at 137, 125 N.Y.S.3d 640, 149 N.E.3d 401 [internal quotation marks, brackets, footnote and citations omitted]; see Matter of Mayo [Epstein–Commissioner of Labor], 193 A.D.3d 1199, 1200, 145 N.Y.S.3d 675 [2021] ; Matter of Jordan [Alterna Holdings Corp.-Commissioner of Labor], 187 A.D.3d 1264, 1265, 131 N.Y.S.3d 440 [2020] ).

The record establishes that some indicia of control by JFC was mandated by federal law — such as requiring that an agreement must be made between JFC and the captains and crew members, providing for the recovery of wages and requiring the captains and crew members to notify JFC of any illness, disability or injury (see 46 USC §§ 10601, 10602, 10603 ) — which, alone, is not sufficient to establish an employer-employee relationship. Nevertheless, such indicia of control can still be considered as part of the overall determination of control exercised over the captains and crew members (see Matter of Cohen [Just Energy Mktg. Corp.-Commissioner of Labor], 117 A.D.3d 1112, 1112–1113, 985 N.Y.S.2d 190 [2014], lv dismissed 24 N.Y.3d 928, 993 N.Y.S.2d 539, 17 N.E.3d 1136 [2014] ). As the Board found, certain...