Relay Express Inc. v. Comm'r of Labor

• Decision Date: 21 April 2022
• Docket Number: 532844
• Citation: 204 A.D.3d 1265,167 N.Y.S.3d 587
• Parties: In the Matter of RELAY EXPRESS INC., Appellant. v. COMMISSIONER OF LABOR, Respondent.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 1265

167 N.Y.S.3d 587

In the Matter of RELAY EXPRESS INC., Appellant.

v.COMMISSIONER OF LABOR, Respondent.

532844

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

Calendar Date: March 22, 2022

Decided and Entered: April 21, 2022

Littler Mendelson, PC, Melville (William H. Ng of counsel), for appellant.

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

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

MEMORANDUM AND ORDER

Lynch, J.P. Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 29, 2020, which assessed Relay Express Inc. for additional unemployment insurance contributions based upon remuneration paid to certain persons.

Relay Express Inc. (hereinafter RE) is a professional corporation engaged in the business of providing same-day delivery service, brokerage services, warehousing and other transportation logistics for its customers and clients. To provide these logistics and delivery services, RE retains the services of, among others, experienced and trained courier drivers using small vehicles and owner/operator delivery drivers using large transport vehicles (hereinafter collectively referred to as the drivers). Prior to providing any of their services, the drivers entered into written agreements with RE. As a result of an audit for the period January 1, 2013 to June 30, 2016, the Department of Labor issued a determination that assessed RE additional unemployment insurance contributions based upon remuneration paid to certain drivers included in the audit. Hearings ensued, and the Unemployment Insurance Appeal Board ultimately sustained the Department's determination assessing additional unemployment insurance contributions, finding, in relevant part, that RE exercised or reserved the right to exercise sufficient supervision, direction or control over the services performed by the delivery drivers to establish an employment relationship for purposes of additional unemployment insurance contributions. RE 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 [purported] 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 indicates that some indicia of control by RE was necessitated by regulatory and legal requirements governing the commercial transportation industry, which, alone, are 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 [drivers]" ( Matter of Joseph Fisheries Corp. [Commissioner of Labor], 202 A.D.3d 1238, 1240, 164 N.Y.S.3d 670 [2022] ; see Matter of Kablan [Medical Delivery Servs.-Commissioner of Labor], 201 A.D.3d 1220, 1221, 162 N.Y.S.3d 194 [2022] ; 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, the record, which includes a written agreement (standard equipment lease and independent contractor agreement) executed by RE and one of its drivers, establishes various indicia of control that RE exercised over the drivers that went beyond what was required by regulatory and legal requirements.

The record reflects...