NY Go Express Inc. v. Comm'r of Labor (In re Dorsey)

• Decision Date: 15 July 2021
• Docket Number: 531180
• Citation: 196 A.D.3d 941,151 N.Y.S.3d 727
• Parties: In the MATTER OF the Claim of Roshonda DORSEY, Respondent. NY GO Express Inc., Appellant. v. Commissioner of Labor, Respondent.
• Court: New York Supreme Court — Appellate Division

196 A.D.3d 941

151 N.Y.S.3d 727

In the MATTER OF the Claim of Roshonda DORSEY, Respondent.NY GO Express Inc., Appellant.

v.Commissioner of Labor, Respondent.

531180

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

Calendar Date: June 2, 2021

Decided and Entered: July 15, 2021

Peter Fidopiastis, Queensbury, for appellant.

Cooper, Erving & Savage, LLP, Albany (Carolyn B. George of counsel), for Roshonda Dorsey, respondent.

Letitia James, Attorney General, New York City (Gary Leibowitz of counsel), for Commissioner of Labor, respondent.

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

MEMORANDUM AND ORDER

Aarons, J. Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 19, 2019, which ruled, among other things, that N.Y. GO Express Inc. was liable for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated.

NY GO Express Inc. (hereinafter Express) is a logistics broker in the transportation industry that makes arrangements with couriers to provide delivery services to its clients. Express retained Subcontracting Concepts LLC (hereinafter SCI) to act as a third-party administrator for the purpose of screening the couriers, handling payroll and dealing with other personnel matters. In March 2016, claimant visited Express' base of operations and inquired about becoming a courier. The dispatcher gave claimant documentation that she needed to complete and provide to SCI. After she provided the requested information and proof of a valid driver's license, current registration and insurance, she signed an owner/operator agreement with SCI that made her eligible to perform delivery services on behalf of Express. She then entered into a written service agreement with Express and began making deliveries both on demand and by a dedicated route. Most of the deliveries that claimant performed were by a dedicated route that was established in connection with a contract that Express had with the City of New York.

After claimant stopped making these deliveries, she filed a claim for unemployment insurance benefits. This prompted an inquiry by the Department of Labor into claimant's employment status. Thereafter, the Department issued initial determinations finding that claimant was eligible to receive benefits and that Express was liable for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated. Express sought review of these determinations and, following a combined hearing, they were upheld by an Administrative Law Judge. These decisions were subsequently affirmed by the Unemployment Insurance Appeal Board. This appeal by Express ensued.

Initially, "[w]hether 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 appeal 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 N.Y.2d 734, 736, 469 N.Y.S.2d 78, 456 N.E.2d 1201 [1983] ; see Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 N.Y.3d 433, 437, 912 N.Y.S.2d 551, 938 N.E.2d 984 [2010] ). "[T]he 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. v. Commissioner of Labor], 180 A.D.3d 1294, 1295, 122 N.Y.S.3d 126 [2020] ; see Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 N.Y.3d at 437, 912 N.Y.S.2d 551, 938 N.E.2d 984 ). Significantly, "[a]ll aspects of the arrangement must be examined to determine whether the degree of control and direction reserved to the [purported] employer establishes an employment relationship" ( Matter of Cowan [Bimbo Foods Bakeries Distr. Inc. v. Commissioner of Labor ], 159 A.D.3d 1312, 1313–1314, 73 N.Y.S.3d 653 [2018] ; see Matter of Villa Maria Inst. of Music [Ross], 54 N.Y.2d 691, 692, 442 N.Y.S.2d 972, 426 N.E.2d 466 [1981] ).

Here, after Express received a call from a client with a particular delivery need, it communicated with SCI through an online portal to find an available courier. Once SCI identified a courier, Express contacted the courier directly and explained the details of the delivery, including the proper etiquette to be followed in interacting with the client. The courier was free to accept...