State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 15, 2016 522468
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In the Matter of the Claim of
DELANO C. BURGESS,
Respondent.
ATTACK! MARKETING, LLC, MEMORANDUM AND ORDER
Appellant.
COMMISSIONER OF LABOR,
Respondent.
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Calendar Date: November 16, 2016
Before: Egan Jr., J.P., Lynch, Rose, Clark and Aarons, JJ.
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Littler Mendelson, PC, Walnut Creek, California (William
Hays Weissman, admitted pro hac vice), for appellant.
Michelle I. Rosien, Philmont, for Delano C. Burgess,
respondent.
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Rose, J.
Appeals from two decisions of the Unemployment Insurance
Appeals Board filed March 30, 2015, which ruled, among other
things, that Attack! Marketing, LLC was liable for unemployment
insurance contributions based upon remuneration paid to claimant
and others similarly situated.
Claimant worked as a brand ambassador for Attack!
Marketing, LLC, an event referral agency that is in the business
of providing brand ambassadors to its clients for their marketing
campaigns. To facilitate its business, Attack maintains a
database that contains a list of brand ambassadors. Attack
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creates this database by having the brand ambassadors complete a
profile page on its website and provide personal and contact
information, a description of their appearance, their
availability and experience with promotional work. One of
Attack's clients, Blackberry, selected claimant from Attack's
database to demonstrate its cell phones in the New York City
region as part of Blackberry's marketing campaign. When the
campaign ended, claimant applied for unemployment insurance
benefits. The Department of Labor determined that claimant was
an employee entitled to benefits and that Attack was liable for
additional contributions on remuneration paid to claimant and
others similarly employed. Following a hearing, an
Administrative Law Judge sustained Attack's objection and
overruled the Department's initial determinations. Upon
administrative appeal, the Unemployment Insurance Appeal Board
reversed the determinations of the Administrative Law Judge and
upheld the Department's initial determinations. Attack now
appeals.
We reverse. "Whether there exists an employment
relationship is a factual issue for resolution by the Board and
its decision will not be disturbed when supported by substantial
evidence" (Matter of Greystoke Indus. LLC [Commissioner of
Labor], 142 AD3d 746, 746 [2016] [internal quotation marks and
citations omitted]; see Matter of Eray Inc. [Commissioner of
Labor], 136 AD3d 1129, 1130 [2016]). "Although no single factor
is determinative, the relevant inquiry is whether the purported
employer exercised control over the results produced or the means
used to achieve those results, with control over the latter being
the more important factor" (Matter of Dwyer [Nassau Regional
Off-Track Corp.—Commissioner of Labor], 138 AD3d 1369, 1370
[2016]; see Matter of Empire State Towing & Recovery Assn., Inc.
[Commissioner of Labor], 15 NY3d 433, 437 [2010]).
Here, the record evidence reflects that Attack retained
little or no control over the means or results of the work
performed by claimant and the other brand ambassadors. Although
Attack required claimant to fill out a profile page and provide
certain personal information and work experience, Attack did not
interview or audition claimant, nor did it conduct a background
check. Significantly, pursuant to the written agreement that
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claimant executed with Attack, the rate of pay of compensation,
as well as the nature and duration of the services that claimant
would provide, were dictated by the clients and not Attack.
Similarly, Attack did not provide any training, supervision or
materials and did not establish claimant's work schedule. Nor
did Attack provide claimant with any benefits, and claimant was
not paid until the client paid Attack. Although claimant could
not directly solicit work from Attack's clients, he was also free
to work as a brand ambassador for other companies. Accordingly,
while some factors cited by the Board constitute evidence of
incidental control, the record as a whole does not contain
sufficient evidence to establish that Attack exercised control
over the means used or the results produced by the brand
ambassadors or the existence of an employer-employee
relationship, and we therefore reverse the Board's decisions (see
Matter of Berger [Gail & Rice, Inc.—Commissioner of Labor], 143
AD3d 1024, 1026 [2016]; Matter of Lee [Encore Nationwide
Inc.—Commissioner of Labor], 127 AD3d 1399, 1399-1400 [2015];
Matter of Richins [Quick Change Artistry, LLC—Commissioner of
Labor], 107 AD3d 1342, 1343 [2013]; compare Matter of Waggoneer
[Preston Leasing Corp.—Commissioner of Labor], 137 AD3d 1380,
1381 [2016]). In light of the foregoing, we need not address
Attack's remaining contentions.
Egan Jr., J.P., Lynch, Clark and Aarons, 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.
ENTER:
Robert D. Mayberger
Clerk of the Court