In re the Claim of Lee

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 20, 2013, which ruled, among other things, that Encore Nationwide Inc. is liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.

Encore Nationwide Inc. challenges a decision of the Unemployment Insurance Appeal Board finding, among other things, that claimant and others similarly situated were its employees, not independent contractors, for whom is it liable for unemployment insurance contributions. Based upon a thorough review of the record before us, we are compelled to find that the Board’s decision is not supported by substantial evidence and, therefore, it must be reversed.

Encore is an event staffing company that refers individuals, which it calls brand ambassadors, to clients that want to promote a product or service at an event. Claimant worked as a brand ambassador. Encore maintains a database that contains postings of client events as well as a list of brand ambassadors. Encore assembles the list by having the brand ambassadors, most of whom are promotional models, complete a registration form, a W9-form and a profile containing specific information about themselves. When client events are posted on Encore’s website, those interested in working the event express their interest and the client selects them from the database. The client then informs Encore which, in turn, bills the client for services rendered as well as an agency fee after the event is concluded.

In determining whether an employment relationship existed between Encore and its brand ambassadors, the pertinent inquiry is whether Encore exercised control “over the results produced or the means used to obtain those results, with control over the' latter being the more important factor to consider” (Matter of Holleran [Jez Enters., Inc. —Commissioner of Labor], 98 AD3d 757 , 758 [2012]; see Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d 433 , 437 [2010]; Matter of Smith [College Network Inc.— Commissioner of Labor], 109 AD3d 1058 , 1059 [2013]). Here, the evidence reveals that Encore retained little or no control over either the means or results of the work performed by the brand ambassadors. Significantly, Encore did not conduct

Lahtinen, J.P., Egan Jr., Rose and Clark, JJ. concur.

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