State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 20, 2016 521187
________________________________
In the Matter of EIBER
TRANSLATIONS, INC.,
Appellant.
MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
Respondent.
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Calendar Date: September 14, 2016
Before: McCarthy, J.P., Lynch, Rose, Devine and Mulvey, JJ.
__________
Whiteman Osterman & Hanna LLP, Albany (John J. Henry of
counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York City (Mary
Hughes of counsel), for respondent.
__________
Devine, J.
Appeal from a decision of the Unemployment Insurance Appeal
Board, filed September 29, 2014, which assessed Eiber
Translations, Inc. for additional unemployment insurance
contributions.
Eiber Translations, Inc. supplies language interpretation
and translation services to its clients performed by interpreters
and translators (hereinafter collectively referred to as
interpreters) selected from its computer database. Following an
audit, the Department of Labor issued a determination finding
that Eiber owed additional unemployment insurance contributions
due to remuneration it had paid to the interpreters from 2007 to
2009. Eiber objected upon the ground that the interpreters were
independent contractors and, after a hearing, an Administrative
Law Judge sustained the objection. The Unemployment Insurance
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Appeal Board found that the interpreters were employees and
reversed. Eiber appeals, and we now reverse.
Whether an employer-employee relationship exists is a
question of fact for the Board, and its determination will be
upheld if supported by substantial evidence in the record (see
Matter of Empire State Towing & Recovery Assn., Inc.
[Commissioner of Labor], 15 NY3d 433, 437 [2010]; Matter of Bin
Yuan [Legal Interpreting Servs., Inc.–Commissioner of Labor], 140
AD3d 1550, 1550 [2016]). An employer-employee relationship
ordinarily exists where the putative employer exercises control
over the results produced or the means used to achieve the
results, with control over the latter of more importance (see
Matter of Empire State Towing & Recovery Assn., Inc.
[Commissioner of Labor], 15 NY3d at 437; Matter of Bin Yuan
[Legal Interpreting Servs., Inc.–Commissioner of Labor], 140 AD3d
at 1551). That being said, "incidental control over the results
produced without further indicia of control over the means
employed to achieve the results will not constitute substantial
evidence of an employer-employee relationship" (Matter of Ted Is
Back Corp. [Roberts], 64 NY2d 725, 726 [1984]; see Matter of
Empire State Towing & Recovery Assn., Inc. [Commissioner of
Labor], 15 NY3d at 437).
Here, Eiber would place any individual on its list of
interpreters so long as his or her resumé indicated that he or
she had experience in the industry (see e.g. Matter of Richins
[Quick Change Artistry, LLC–Commissioner of Labor], 107 AD3d
1342, 1344 [2013]). Eiber did not enter into a written contract
with the interpreters, did not supervise them or evaluate their
work and did not forbid them from working for competitors. The
interpreters were not required to attend any training or meetings
by Eiber, nor were they provided with any materials or equipment,
given fringe benefits or reimbursed for expenses. Eiber's
involvement was limited to forwarding the resumés of qualified
interpreters to clients for selection purposes or, if time did
not permit a client review, to directly gauge an interpreter's
availability. The selected interpreter was notified of the time
and place that the client expected him or her to work and was
free to decline the assignment. The interpreter was also free to
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perform an accepted assignment in whatever manner he or she saw
fit, including by walking out if he or she had issues with a
client, retaining assistants or substitutes to do the work or
leaving it unfinished in the event of a scheduling conflict. The
interpreter would then send an invoice to Eiber on his or her own
form that charged an hourly rate of his or her own choosing, and
Eiber would bill the client for the invoice amount plus a fee to
account for Eiber's involvement in arranging the services
(compare Matter of Spinnell [Commissioner of Labor], 300 AD2d
770, 771 [2002], and Matter of Seaver [Glens Falls Newspapers–
Hartnett], 162 AD2d 841, 842 [1990], with Matter of Ruano [Legal
Interpreting Servs., Inc.–Commissioner of Labor], 118 AD3d 1088,
1089 [2014], lv dismissed 24 NY3d 1039 [2014], and Matter of FMI
Interpreting Servs. [Hudacs], 192 AD2d 1006, 1006 [1993]).1
The record accordingly demonstrates that the interpreters
were autonomous and that Eiber acted as little more than an
intermediary between them and the clients. Thus, while the Board
cited factors such as Eiber's practice of paying "bust fees" to
interpreters if their assignments were canceled and its fielding
of client complaints, such evidence of "incidental control over
the results produced without further indicia over the means
employed to achieve the results" was insufficient to establish an
employer-employee relationship (Matter of Ted Is Back Corp.
[Roberts], 64 NY2d at 726; see Matter of Leazard [TestQuest,
Inc.–Commissioner of Labor], 74 AD3d 1414, 1416 [2010]; Matter of
International Student Exch. [Commissioner of Labor], 302 AD2d
1
The Board misleadingly asserted in its decision, and
continues to suggest upon appeal, that Eiber was free to
determine that the hourly rates charged by the interpreters were
too high. The record instead reveals that Eiber would try to
avoid billing disputes by referring interpreters who charged
hourly rates that were acceptable to the specific client. Eiber
would only take action if it were unable to charge the client the
full amount sought by the interpreter, and the nature of that
action was not specified in the record. The hearing testimony
indicated, in fact, that Eiber would "accept whatever fee [the
interpreters] submit[ted]."
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834, 835 [2003]; Matter of Pavan [UTOG 2-Way Radio Assn.–
Hartnett], 173 AD2d 1036, 1038 [1991], lv denied 78 NY2d 857
[1991]).
Eiber's remaining contentions have been rendered academic
in light of the foregoing.
McCarthy, J.P., Lynch, Rose and Mulvey, 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.
ENTER:
Robert D. Mayberger
Clerk of the Court