In re the Claim of Jhaveri

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed November 5, 2013, which ruled, among other things, that Stacy Blackman Consulting, Inc. was liable for unemployment insurance contributions based on remuneration paid to claimant and others similarly situated.

Stacy Blackman Consulting, Inc. (hereinafter SBC) is engaged in the business of assisting students who are applying to business school. Claimant performed that work, and the Unemployment Insurance Appeal Board ruled that he and others similarly situated were SBC’s employees. SBC now appeals.

“Whether an employee-employer relationship exists ‘is a

SBC did not screen claimant, but retained his services because he had been introduced to its president through a mutual acquaintance as someone who had gone to business school and was familiar with the application process. Claimant thereafter executed an agreement that designated him an independent contractor. He further negotiated his own fee, was not reimbursed for expenses, and was not provided with any benefits. SBC did not train, supervise or otherwise direct claimant in the performance of his work, although it did require him to turn over whatever application materials he had helped prepare. SBC also did not perform any substantive review of claimant’s work, did not require him to attend any meetings or consult with it, and allowed him to decline assignments and take time off as he saw fit. Moreover, while the parties’ agreement required claimant to keep sample application materials provided by SBC confidential and imposed restrictions on his ability to work for competitors in the field, the president of SBC testified without contradiction that she had never enforced those provisions and had permitted claimant to work elsewhere. Under these circumstances, we are unable to conclude that SBC exercised sufficient control over claimant to establish an employer-employee relationship (see Matter of Jennings [American Delivery Solution, Inc. — Commissioner of Labor], 125 AD3d at 1153 ; Matter of Richins [Quick Change Artistry, LLC— Commissioner of Labor], 107 AD3d 1342 , 1344 [2013]; compare Matter of Ivy League Tutoring Connection, Inc. [Commissioner of Labor], 119 AD3d 1260 , 1261 [2014]).

The remaining arguments of SBC have been rendered academic in light of the foregoing.

Ordered that the decisions are reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court’s decision.