State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 30, 2016 520357
________________________________
In the Matter of the Claim of
BIN YUAN,
Respondent.
LEGAL INTERPRETING SERVICES,
INC.,
Appellant.
COMMISSIONER OF LABOR,
Respondent.
(Claim No. 1.)
________________________________
In the Matter of the Claim of
YAQIN CHOU,
Respondent.
LEGAL INTERPRETING SERVICES,
INC., MEMORANDUM AND ORDER
Appellant.
COMMISSIONER OF LABOR,
Respondent.
(Claim No. 2.)
________________________________
In the Matter of the Claim of
SUZANNE LYNCH,
Respondent.
LEGAL INTERPRETING SERVICES,
INC.,
Appellant.
COMMISSIONER OF LABOR,
Respondent.
(Claim No. 3.)
________________________________
-2- 520357
In the Matter of the Claim of
ELIZABETH HERRERA,
Respondent.
LEGAL INTERPRETING SERVICES,
INC.,
Appellant.
COMMISSIONER OF LABOR,
Respondent.
(Claim No. 4.)
________________________________
Calendar Date: April 19, 2016
Before: Peters, P.J., Garry, Rose, Clark and Aarons, JJ.
__________
Greenberg Traurig, LLP, New York City (Jerrold F. Goldberg
of counsel) and Law Offices of Jonathan Weinberger, New York City
(Jonathan Weinberger of counsel), for appellant.
Bruce E. Knoll, Albany, for Bin Yuan and others,
respondents.
Eric T. Schneiderman, Attorney General, New York City (Mary
Hughes of counsel), for Commissioner of Labor, respondent.
__________
Clark, J.
Appeals from eight decisions of the Unemployment Insurance
Appeal Board, filed June 23, 2014, June 25, 2014, September 17,
2014 and October 21, 2014, which ruled, among other things, that
-3- 520357
Legal Interpreting Services, Inc. is liable for unemployment
insurance contributions on remuneration paid to claimants and
others similarly situated.
Legal Interpreting Services, Inc. (hereinafter LIS) is
engaged in the business of providing foreign language
interpreting services and maintains a database of individual
interpreters, such as claimants, who provide those services to
its clients. Claimants filed for unemployment insurance
benefits, and the Unemployment Insurance Appeal Board ultimately
determined that claimants were employees of LIS, that claimants
were entitled to unemployment insurance benefits and that LIS was
liable for unemployment insurance contributions on remuneration
paid to claimants and others similarly situated. LIS appeals.
We affirm. "The existence of an employer-employee
relationship is a factual issue for the Board to resolve and its
decision will be upheld if supported by substantial evidence"
(Matter of Ruano [Legal Interpreting Servs., Inc.–Commissioner of
Labor], 118 AD3d 1088, 1088 [2014] [citations omitted], lv
dismissed 24 NY3d 1039 [2014]; see Matter of Soo Tsui [Language
Servs. Assoc., Inc.–Commissioner of Labor], 135 AD3d 1098, 1099
[2016]). "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 Automotive Serv. Sys., Inc. [Commissioner
of Labor], 56 AD3d 854, 855 [2008] [citations omitted]; see
Matter of Viau [New York State Off. of Ct. Admin.–Commissioner of
Labor], 125 AD3d 1223, 1225 [2015], abrogated on other grounds
Matter of Mitchum [Medifleet, Inc.–Commissioner of Labor], 133
AD3d 1156, 1158 n [2015]). We have held that "an organization
which screens the services of professionals, pays them at a set
rate and then offers their services to clients exercises
sufficient control to create an employment relationship" (Matter
of Lobban [Precinct Sec. & Investigations, Inc.–Commissioner of
Labor], 131 AD3d 1294, 1294 [2015] [internal quotation marks and
citations omitted]; accord Matter of Ritch [Island Tutoring Ctr.,
Inc.–Commissioner of Labor], 139 AD3d 1151, 1152 [2016]; Matter
of Klotz [Blue Perimeter, Inc.–Commissioner of Labor], 127 AD3d
1459, 1460 [2015]).
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The record establishes that LIS recruits through
advertisements in newspapers and social media. Before adding an
individual to its database of available interpreters, LIS
recruiters meet with the applicant, review his or her resume,
request certain personal identification information and negotiate
his or her hourly pay rate. Claimants signed contracts, which
set forth rules and regulations governing their conduct when
providing translation or interpretation services. Although the
principal of LIS testified that the rules and regulations were
included at the insistence of certain customers and were merely
"suggestions," the contracts were drafted by an attorney hired by
LIS and printed on LIS letterhead and do not indicate that the
rules and regulations were merely suggestions.
When clients contacted LIS to request interpretation
services, LIS selected a linguist from its database and provided
that linguist with the specifics of the assignment, including the
languages required and the date, time and location. Linguists
were free to accept or decline assignments at their convenience.
However, once they accepted an assignment, the linguists were
required to notify LIS if they were running late, were unable to
complete the assignment or were sending a substitute in their
stead. With respect to pay, LIS required the linguists to submit
time sheets, billed its clients and paid its linguists prior to
receiving payment from those clients. A linguist's payment was
not contingent upon the client's payment of the bill.
Notwithstanding the existence of evidence that could have
supported a contrary finding, the foregoing constitutes
substantial evidence supporting the Board's determinations that
LIS and claimants were in an employer-employee relationship (see
Matter of Ritch [Island Tutoring Ctr., Inc.–Commissioner of
Labor], 139 AD3d at 1152; Matter of Ruano [Legal Interpreting
Servs., Inc.–Commissioner of Labor], 118 AD3d at 1088; Matter of
FMI Interpreting Servs. [Hudacs], 192 AD2d 1006, 1006-1007
[1993]). Additionally, the Board did not err in ruling that LIS
is liable for contributions on remuneration paid to all other
individuals determined to be similarly situated (see Matter of
Soo Tsui [Language Servs. Assoc., Inc.–Commissioner of Labor],
135 AD3d at 1099-1100; Matter of Mitchum [Medifleet, Inc.–
Commissioner of Labor], 133 AD3d 1156, 1157 [2015]).
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Further, we are unpersuaded by LIS's assertion that the
Board failed to follow certain guidelines adopted by the
Department of Labor to provide guidance to the translating and
interpreting industry in determining whether an employment
relationship exists. The guidelines make clear that "[n]o one
single factor is controlling" (New York State Department of
Labor, Guidelines for Determining Worker Status: Translating and
Interpreting Industry, http://www.labor.ny.gov/formsdocs/ui/
IA318.20.pdf [last updated Jan. 2014]), and "we discern no
inconsistency between the [Board's] decisions and such
guidelines, which expressly adopt the well-established common-law
tests of master and servant" (Matter of Soo Tsui [Language Servs.
Assoc., Inc.–Commissioner of Labor], 135 AD3d at 1100; see Matter
of Armison [Gannett Co., Inc.–Commissioner of Labor], 122 AD3d
1101, 1103 [2014], lv dismissed 24 NY3d 1209 [2015]).
LIS's remaining contentions, to the extent not specifically
addressed herein, have been reviewed and found to be lacking in
merit.
Peters, P.J., Garry, Rose and Aarons, JJ., concur.
ORDERED that the decisions are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court