Ted Is Back Corp., Matter of

• Decision Date: 20 December 1984
• Citation: 485 N.Y.S.2d 742,475 N.E.2d 113,64 N.Y.2d 725
• Parties: , 475 N.E.2d 113 In the Matter of TED IS BACK CORPORATION, Respondent. Lillian Roberts, as Commissioner of Labor, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 742

485 N.Y.S.2d 742

64 N.Y.2d 725, 475 N.E.2d 113

In the Matter of TED IS BACK CORPORATION, Respondent.

Lillian Roberts, as Commissioner of Labor, Appellant.

Court of Appeals of New York.

Dec. 20, 1984.

Robert Abrams, Atty. Gen., New York City (Frederick M. Paola and O. Peter Sherwood, New York City, of counsel), for appellant.

Michael A. Haskel, Forest Hills, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 103 A.D.2d 932, 478 N.Y.S.2d 178, should be affirmed, with costs.

The decision of the Unemployment Insurance Appeal Board that an employment relationship exists between Ted Is Back Corporation and its salespeople is not supported by substantial evidence in the record. Although a determination that an employer-employee relationship exists may rest upon evidence that the employer exercises either control over the results produced or over the means used to achieve the results (Matter of 12 Cornelia St. 56 N.Y.2d 895, 897, 453 N.Y.S.2d 402, 438 N.E.2d 1117; Matter of Sullivan Co. 289 N.Y. 110, 112, 44 N.E.2d 387), control over the means is the more important factor to be considered. Thus, incidental control over the results produced without further indicia of control over the means employed to achieve the results will not constitute substantial evidence of an employer-employee relationship.

The administrative law judge emphasized the importance of the fact that the salespeople acted as agents for the corporation and that the corporation retained the right to approve the final price negotiated by them. That these salespeople acted as agents cannot be decisive, for this is equally true where salespeople are determined to be independent contractors (see, e.g., Matter of Levine 258 App.Div. 1023, 17 N.Y.S.2d 434, affd. 283 N.Y. 577, 27 N.E.2d 439; Matter of Waroshill, 263 App.Div. 546, 33 N.Y.S.2d 712). Nor is approval of price determinative for this is no more than the kind of incidental control over results that is "a necessarily wise business decision" (Matter of Green Engraving Corp. 95 A.D.2d 904, 905, 463 N.Y.S.2d 909). Here, the evidence does not support a finding of control over the means of achieving the results. The salespeople worked at their own convenience, were free to hold outside employment and were not limited to any particular territory. They were not reimbursed for expenses and received no salary or drawing account, but were paid strictly on a commission basis. No taxes were withheld...