In re the Claim of Cohen

Appeals from two decisions of the Unemployment Insurance Appeal Board, filed July 9, 2014, which ruled, among other things, that Classic Riverdale Inc. is liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.

Classic Riverdale Inc. operates a senior living facility. Claimant is a fitness instructor who provided exercise classes to the facility’s residents from 2002 to 2010. After Classic Riverdale ceased using claimant’s services, he applied for unemployment insurance benefits and the Department of Labor granted his application upon finding that he was an employee of Classic Riverdale and not an independent contractor. A hearing was held that resulted in an Administrative Law Judge overruling the Department’s determination and finding that claimant was an independent contractor. The Unemployment Insurance Appeal Board reversed that decision and found that an employment relationship existed between claimant and Classic Riverdale entitling him to benefits and that Classic Riverdale was liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated. Classic Riverdale appeals.

We reverse. “An employer-employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results” with the second factor deemed to be more important (Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d 433 , 437 [2010]; see Matter of Encore Music Lessons LLC [Commissioner of Labor], 128 AD3d 1313 , 1314 [2015]). The Board’s determination will be upheld where it is

After learning from a client that Classic Riverdale was seeking an exercise instructor, claimant contacted the facility’s executive director and offered his services. Claimant and the director negotiated a flat fee for each class and set a schedule for the classes. Classic Riverdale did not provide any training or require claimant to wear a uniform. He was not required to punch in or out on the employee time clock, did not use the employee facilities, such as the locker room or cafeteria, and was not invited to attend employee meetings. Claimant alone determined the content of the classes and method of instruction (compare Matter of Yoga Vida NYC, Inc. [Commissioner of Labor], 119 AD3d 1314 , 1314-1315 [2014], lv granted 24 NY3d 909 [2014]). There was no limitation placed on the amount of time that claimant could miss from work and his attendance was not monitored. He was never given a performance evaluation and was not subject to any form of discipline (see Matter of Leazard [TestQuest, Inc. —Commissioner of Labor], 74 AD3d 1414 , 1415 [2010]). Claimant also maintained his own liability insurance (compare Matter of Fitness Plus [Commissioner of Labor], 293 AD2d 909 , 910 [2002]). Notably, in addition to providing classes at the facility, claimant also provided services to other clients and solicited the facility’s residents for private, one-on-one classes without any objection from Classic Riverdale (compare Matter of Raynor [Synchronicity, Inc. —Commissioner of Labor], 135 AD3d 1261 [2016]; see Matter of Leazard [TestQuest, Inc. —Commissioner of Labor], 74 AD3d at 1415 ).

The fact that claimant taught the classes on the facility’s premises does not indicate an employment relationship, given that claimant was retained for that very purpose (see Matter of Hertz Corp. [Commissioner of Labor], 2 NY3d 733 , 735 [2004]).

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

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.