Ordinarily, when we are called upon to decide whether a person is an employee engaged in a "covered employment" under the unemployment insurance law (Labor Law, art. 18), we examine into the particular facts of the relationship between that person and the person or entity said to be his *Page 116 "employer." Then, ordinarily, we apply to those discovered facts the settled rule that if the worker is subject to the orders of another as to the method and manner of his work, he is an employee, and, if not so subject, that he is an independent contractor. (Matter of Morton, 284 N.Y. 167.) But there are occupations in which, by command of statute, one who works under the control of another, is, perforce, an employee and not an independent contractor. Whatever be the language of the contracts under which such a person works, the law, to effectuate its own policy, inserts in the contract the law's own terms, to the effect that the worker is, and must be considered, an employee.
Clearly, this is so with real estate brokers and real estate salesmen. The occupation of selling, renting and managing real property for others is closely regulated, in this State, by statutory law. Those statutes exhibit a plainly stated, unmistakable public policy that persons licensed as real estate salesmen may not lawfully work in that calling except as employees of others who are licensed as real estate brokers, that salesmen may not sell real property except under the direction of brokers, and that brokers must assume responsibility for the acts or omissions of their salesmen. No other reason can be assigned for the numerous careful distinctions made by the Legislature, throughout article 12-A of the Real Property Law, between brokers and salesmen. A salesman may, by his particular employer, be permitted considerable freedom of action. He may search out his own prospects and available properties, he may work on commission only and have his choice of hours and places of work — but, if the law is to be obeyed, he must be at all times under the direction and control of a broker, and the broker must stand sponsor for him with the State and with the public.
The very definition of "real estate salesman" in section 440 of the Real Property Law, says that the term means one who is "employed by a licensed real estate broker." No one may become a licensed broker until he has "actively participated in the general real estate brokerage business as a licensed real estate salesman under the supervision of a licensed real estate broker" or has had equivalent experience, for certain specified periods of time; one applying for a salesman's license must set forth the name of the *Page 117 "broker by whom he is to be employed" and a temporary license may be issued when the salesman's "employer" expresses "willingness to stand responsible for the acts of such salesman * * *." (Real Property Law, § 441.) A salesman's license must set forth the name of the broker "by whom the salesman is employed" and every such salesman's license must be sent by the Department of State, not to the salesman, but to the "real estate broker by whom such salesman is employed" and must be kept "in the custody and control of such broker;" when a salesman leaves the employment of a broker, the latter returns the salesman's license to the Department, which re-issues it and sends it on to the new broker-employer (§ 441-a). A license as salesman cannot be issued to an officer of a brokerage corporation or to a member of a brokerage partnership (§ 441-b, subd. 2). A salesman, for his services in selling, renting or otherwise dealing with real property, is forbidden to receive or demand compensation from any person "other than a duly licensed real estate broker regularly employing the salesman * * *" (§ 442-a). When a salesman's employment with a broker is discontinued, the broker must send the salesman's license back to the State Department, and the salesman cannot thereafter work as such, until there has been issued to him a new license bearing the name of a new broker-employer (§ 442-b).
This repeated use by the Legislature of the word "employed" is not to be considered inadvertent, particularly since everything else in article 12-A of the Real Property Law paints a picture of the conventional relationship of employer and employee, between broker and salesman. When, later on, the Legislature, in enacting the unemployment insurance law, came to describe the persons and relationships intended to be covered, it used the words "employment," "employer" and "employee" and defined them so broadly (Labor Law, § 502) that no reason is left for excluding the real estate salesmen as to whom the Legislature had earlier used the same verbiage, in the Real Property Law. We should not ascribe different meanings to the same word, as used in different statutes, unless compelling reasons so dictate. There are no such reasons here. To hold as matter of law that these salesmen are independent contractors, we would have to say that there is in this relationship a total absence of the "marks which ordinarily characterize the *Page 118 relationship of employer and employee." (Matter of Morton,supra, p. 173.) Those "marks" have here been plainly painted in by the Legislature itself since it has decreed that such salesmen are to function as employees, and not otherwise. The inconveniences, if any there be, in applying the provisions of the unemployment insurance law to these salesmen, are not for the courts to deal with.
The order of the Appellate Division should be reversed, and the determination of the Unemployment Insurance Appeal Board reinstated, with costs.
RIPPEY, LEWIS and CONWAY, JJ., concur with FINCH, J., DESMOND, J., dissents in opinion in which LEHMAN, Ch. J., and LOUGHRAN, J., concur.
Order affirmed. *Page 119