Tender Age PT Inc. v. Comm'r of Labor (In re Giordano)

• Decision Date: 17 May 2018
• Docket Number: 522459
• Citation: 161 A.D.3d 1398,77 N.Y.S.3d 734
• Parties: In the MATTER OF the Claim of Toniann M. GIORDANO, Respondent. Tender Age PT Inc., Appellant. v. Commissioner of Labor, Respondent.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 1398

77 N.Y.S.3d 734

In the MATTER OF the Claim of Toniann M. GIORDANO, Respondent.Tender Age PT Inc., Appellant.

v.Commissioner of Labor, Respondent.

522459

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

Calendar Date: April 27, 2018

Decided and Entered: May 17, 2018

Carmel, Milazzo & DiChiara LLP, New York City (Ross D. Carmel of counsel), for appellant.

Thomas F. Garner, Middleburgh, for Toniann M. Giordano, respondent.

Barbara D. Underwood, Acting Attorney General, New York City (Mary Hughes of counsel), for Commissioner of Labor, respondent.

Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

McCarthy, J.P.

Appeal from three decisions of the Unemployment Insurance Appeal Board, filed April 22, 2015, which ruled, among other things, that Tender Age PT Inc. was liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.

The Department of Education administers supplemental education services to children with disabilities and special needs who are eligible for such services under federal law (see Education Law § 4401 et seq. ; 20 USC § 1400 et seq. ; 20 USC § 6301 et seq. ; Matter of Clarke [Select Medical Corp. Inc.–Commissioner of Labor], 139 A.D.3d 1285, 1286, 31 N.Y.S.3d 684 [2016] ). Tender Age PT Inc. (hereinafter TAPT) is an approved provider of such services and makes available to its clients—state and local government entities consisting primarily of counties and school districts—occupational therapy, physical therapy, speech therapy, special education and related services. TAPT contracts with service professionals possessing the requisite skills needed by its clients to perform the actual services. When TAPT is contacted by either a client or a parent regarding a child with a particular need, it consults its registry of approved service professionals within the specialty needed and, after finding an appropriate match, refers the case to the service professional to work directly with the child.

Claimant, an applied behavioral analyst therapist, filed a claim for unemployment insurance benefits after she stopped receiving assignments from TAPT. The Department of Labor, in turn, conducted an audit of TAPT's operations covering the years 2008 and 2009. At the conclusion of the audit, it rendered initial determinations finding, among other things, that TAPT was liable for additional unemployment insurance contributions on remuneration paid to claimant and other similarly situated service professionals.¹ Following combined hearings on cases related to the audit, an Administrative Law Judge sustained these determinations. Thereafter, the Unemployment Insurance Appeal Board upheld the assessment of additional contributions upon finding that an employment relationship existed between TAPT and claimant, as well as other similarly situated service professionals.² TAPT appeals.

Initially, the existence of an employer-employee relationship is a factual issue for the Board to resolve and its decision will not be disturbed if it is supported by substantial evidence (see Matter of Empire 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] ; Matter of Desravines [Logic Corp.–Commissioner of Labor], 146 A.D.3d 1205, 1205, 44 N.Y.S.3d 811 [2017] ). Significantly, in situations like the one here, where "the details of the work performed are difficult to control because of considerations such as professional responsibilities, courts have applied the overall control test, which requires that the employer exercise control over important aspects of the services performed" ( Matter of Wright [Mid Is. Therapy Assoc. LLC–Commissioner of Labor], 134 A.D.3d 1216, 1217, 20 N.Y.S.3d 252 [2015] [internal quotation marks and citation omitted]; see Matter of Empire Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 N.Y.3d at 437–438, 912 N.Y.S.2d 551, 938 N.E.2d 984 ; Matter of Corrente [Select Medical Corp., Inc.–Commissioner of Labor], 139 A.D.3d 1283, 1284, 31 N.Y.S.3d 681 [2016] ).

In view of this Court's recent decisions in Matter of Clarke (Select Medical Corp., Inc.–Commissioner of Labor) (supra ), Matter of Corrente (Select Medical Corp., Inc.–Commissioner of Labor) (supra ) and Matter of Wright (Mid Is. Therapy Assoc. LLC–Commissioner of Labor) (supra ), all of which involved approved agencies providing supplemental educational services under arrangements similar to the one here, we cannot conclude that substantial evidence supports the Board's finding of an employment relationship. As in those cases, TAPT's overall control over important aspects of the service professionals' work is lacking largely because the policies and procedures related thereto are "dictated by statutes and regulations governing the provision of supplemental educational and related services" ( Matter of Corrente [Select Medical Corp., Inc.–Commissioner...