A Place for Rover Inc. v. Comm'r of Labor (In re Hawkins)

• Decision Date: 21 October 2021
• Docket Number: 530002
• Citation: 198 A.D.3d 1120,155 N.Y.S.3d 243
• Parties: In the MATTER OF the Claim of Benjamin HAWKINS, Respondent. A Place for Rover Inc., Appellant. v. Commissioner of Labor, Respondent.
• Court: New York Supreme Court — Appellate Division

198 A.D.3d 1120

155 N.Y.S.3d 243

In the MATTER OF the Claim of Benjamin HAWKINS, Respondent.A Place for Rover Inc., Appellant.

v.Commissioner of Labor, Respondent.

530002

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

Calendar Date: September 17, 2021

Decided and Entered: October 21, 2021

Ogletree, Deakins, Nash, Smoak & Stewart PC, New York City (Robert M. Tucker of counsel), for appellant.

Teresa C. Mulliken, Harpersfield, for Benjamin Hawkins, respondent.

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

Before: Garry, P.J., Egan Jr., Lynch, Clark and Pritzker, JJ.

MEMORANDUM AND ORDER

Lynch, J. Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 12, 2019, which ruled, among other things, that A Place for Rover Inc. was liable for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated.

A Place for Rover Inc. (hereinafter Rover) operates an online platform, accessed through its website or a smartphone application, that connects pet owners with pet service providers or "sitters" who offer pet boarding, sitting, walking, day care and drop-in services. Rover employs approximately 200 people in its Seattle, Washington headquarters, who primarily provide technological and customer service support, and its platform contains profiles for about 85,000 service providers nationwide. Claimant worked as a provider for approximately one year, from 2015 to 2016 in Brooklyn, when he applied for unemployment insurance benefits.¹ The Department of Labor issued an initial decision finding that claimant was an employee of Rover, which was responsible for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated. Rover objected, contending that claimant and the other providers were independent contractors and, following a hearing, an Administrative Law Judge upheld the initial determination. The Unemployment Insurance Appeal Board affirmed, and Rover appeals.

"[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 ... [B]oard, 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 decision" ( 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] [internal quotation marks, brackets and citations omitted]; see Matter of Lowry [Uber Tech., Inc.-Commissioner of Labor], 189 A.D.3d 1863, 1863, 138 N.Y.S.3d 238 [2020], lv dismissed 37 N.Y.3d 1045, 154 N.Y.S.3d 569, 176 N.E.3d 306 [Oct. 14, 2021] ). In making the determination regarding employment status, "[a]ll aspects of the arrangement" must be considered, "[b]ut 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" ( 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] [internal quotation marks and citation omitted]). To that end, "the relevant indicia of control will necessarily vary depending on the nature of the work" ( id. ).

A review of the testimony of the sole witness, Rover's legal manager,² and the documentary evidence demonstrates that Rover did not, in any respect, exercise control over the manner in which providers completed the pet services that they were retained to perform for the owners, the means used to supply those services or the results produced (see Matter of Walsh [TaskRabbit Inc.-Commissioner of Labor], 168 A.D.3d 1323, 1324–1325, 92 N.Y.S.3d 750 [2019] ; see also Matter of Jordan [Alterna Holdings Corp.-Commissioner of Labor], 187 A.D.3d 1264, 1265–1266, 131 N.Y.S.3d 440 [2020] ; compare Matter of Vega [Postmates Inc.-Commissioner of Labor], 35 N.Y.3d at 135–140, 125 N.Y.S.3d 640, 149 N.E.3d 401 ; Matter of Lowry [Uber Tech., Inc.-Commissioner of Labor], 189 A.D.3d at 1864–1866, 138 N.Y.S.3d 238 ). The evidence established that providers set up an account and create a profile indicating which services they will provide and at what price; after they pass a background check, their profile is reviewed for completeness and appropriateness and, if their profiles are in order, they are activated and they become providers. No particular experience is required, although providers may include it on their profile, and no training is required, only optional tutorials offered by Rover. Further, provider homes and cars are not inspected. Significantly, providers establish their own rates, the geographic area where they will offer services and which specific services they will perform, and they determine their own availability and schedule. They are permitted to work for Rover's competitors. Although Rover's manager testified that providers must sign a contract containing the terms of service and testified regarding those terms, an example of which was admitted as an exhibit, he also testified that Rover did not have a contract with claimant and no signed contract was admitted into evidence.

The manager's testimony established that owners search the site by date, location and service needed and the platform generates a list of profiles for available providers meeting the criteria searched; the owner then reviews the provider profiles, selects which person to use and contacts the selected provider, often meeting in advance of services to be sure both sides are satisfied. Either side may decline to do business, and providers may not use substitutes after owners book services with them. Owners communicate any care instructions for their pets directly to the providers. For privacy reasons, all communication is through the site and no personal information is exchanged. Once the owner and the provider agree on terms, at the time of the booking the owner pays a third-party payment provider for the services, the money is held until after the services are completed, Rover takes 20%³ to cover its overhead expenses and then the balance is transferred to the provider's account. Providers may select their own cancellation policy, which...