State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 19, 2015 519220
________________________________
In the Matter of the Claim of
CHRISTOPHER FAHRSON,
Respondent.
AARON CASEY INSURANCE AGENCY, MEMORANDUM AND ORDER
Appellant.
COMMISSIONER OF LABOR,
Respondent.
________________________________
Calendar Date: December 2, 2014
Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.
__________
Aaron Casey, Aaron Casey Insurance Company, Rochester, for
appellant.
Cynthia Feathers, Glens Falls, for Christopher Fahrson,
respondent.
Eric T. Schneiderman, Attorney General, New York City
(Steven Koton of counsel), for Commissioner of Labor, respondent.
__________
Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed October 2, 2013, which ruled, among other
things, that Aaron Casey Insurance Agency was liable for
unemployment insurance contributions based on remuneration paid
to claimant and others similarly situated.
Claimant worked as an insurance agent with Aaron Casey
Insurance Agency for approximately six months. After his
employment ended, claimant applied for unemployment insurance
benefits and the Department of Labor determined that claimant was
-2- 519220
an employee of Aaron Casey Insurance and that it was liable for
contributions based on remuneration paid to claimant and others
similarly situated. Aaron Casey Insurance objected on the ground
that claimant was an independent contractor and, following a
hearing, an Administrative Law Judge sustained the initial
determination and the Unemployment Insurance Appeal Board
affirmed. Aaron Casey Insurance now appeals, and we affirm.
Whether an employee-employer relationship exists "is a
factual question to be resolved by the Board and we will not
disturb its determination when it is supported by substantial
evidence in the record" (Matter of McCollum [Fire Is. Union Free
Sch. Dist.–Commissioner of Labor], 118 AD3d 1203, 1203 [2014];
see Matter of Joyce [Coface N. Am. Ins. Co.–Commissioner of
Labor], 116 AD3d 1132, 1133-1134 [2014]). "While no single
factor is determinative, control over the results produced or the
means used to achieve those results are pertinent considerations,
with the latter being more important" (Matter of Joyce [Coface N.
Am. Ins. Co.–Commissioner of Labor], 116 AD3d at 1134 [internal
quotation marks and citations omitted]; see Matter of MacFarlane
[Aid Assn. for Lutherans Corp.—Commissioner of Labor], 35 AD3d
1076, 1077 [2006]).
Here, there is ample evidence to support the finding that
Aaron Casey Insurance exercised control over numerous aspects of
claimant's work. For example, claimant was required to work a
minimum of 30 hours per week, per a schedule set by Aaron Casey
Insurance, and needed permission to take time off. In addition
to servicing customers outside the office, claimant was
responsible for performing in-office work, including answering
phones and servicing walk-in customers. Claimant was paid an
hourly wage plus commissions and was reimbursed for the costs
associated with obtaining his insurance license. Additionally,
claimant was provided training and was required to report back
regarding sales leads, his work was reviewed by Aaron Casey
Insurance and he had a sales quota and faced termination if it
was not met. In our view, the foregoing is more than sufficient
to support the Board's finding of an employment relationship,
notwithstanding the existence of other proof that could support a
contrary conclusion (see Matter of Joyce [Coface N. Am. Ins.
Co.–Commissioner of Labor], 116 AD3d at 1134; Matter of
-3- 519220
MacFarlane [Aid Assn. for Lutherans Corp.—Commissioner of Labor],
35 AD3d at 1077). Aaron Casey Insurance's remaining contentions,
including its argument regarding the Board's failure to
articulate its consideration of relevant guidelines adopted by
the Department in ascertaining claimant's employment status (see
Guidelines for Determining Worker Status: Insurance Sales
Industry, http://www.labor.ny.gov/formsdocs/ui/ia318.18.pdf),
have been examined and found to be lacking in merit.1
Peters, P.J., Lahtinen, Garry and Lynch, JJ., concur.
ORDERED that the decisions are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court
1
The Board properly concluded that the parties' agreement
did not satisfy the requirements of Labor Law § 511 (21) and,
thus, the statute did not bar claimant's application for
unemployment insurance benefits.