IN RE: the Claims of Rosemarie NOEL et al. (2007)

Appeals from five decisions of the Unemployment Insurance Appeal Board, filed February 24, 2006, which, upon reconsideration, adhered to its prior decisions ruling that Life Alert Emergency Response, Inc. was liable for additional unemployment insurance contributions based on remuneration paid to claimants and others similarly situated.

Claimants worked as direct sellers for Life Alert Emergency Response, Inc., maker and provider of personal emergency response devices and related services.   After termination of their employment, claimants filed for unemployment insurance benefits.   The Commissioner of Labor initially determined that claimants were employees of Life Alert and that Life Alert was liable for additional contributions based on remuneration paid to claimants and to all others similarly situated.   Life Alert objected on the ground that claimants were independent contractors.   After a hearing, the Administrative Law Judge sustained the initial determinations and the Unemployment Insurance Appeal Board affirmed.   Subsequently, upon reconsideration, the Board adhered to its prior decisions.   Life Alert now appeals.

 The existence of an employer-employee relationship is a factual issue for the Board to resolve and its determination will not be disturbed if it is supported by substantial evidence, even if other evidence in the record could support a contrary conclusion (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 N.Y.2d 734, 736, 469 N.Y.S.2d 78, 456 N.E.2d 1201 [1983];  Matter of O'Neil-Haight [County of Yates-Commissioner of Labor], 34 A.D.3d 1041, 1042, 823 N.Y.S.2d 632 [2006] ).   Although all aspects of the arrangement must be examined, “evidence of control over the results produced or the means used to achieve those results are relevant considerations, with the latter being more important” (Matter of La Fleur [LTI, Inc.-Commissioner of Labor], 27 A.D.3d 935, 936, 811 N.Y.S.2d 467 [2006], lv. dismissed 7 N.Y.3d 783, 820 N.Y.S.2d 544, 853 N.E.2d 1112 [2006];  see Matter of Hertz Corp. [Commissioner of Labor], 2 N.Y.3d 733, 735, 778 N.Y.S.2d 743, 811 N.E.2d 5 [2004];  Matter of Ted Is Back Corp. [Roberts], 64 N.Y.2d 725, 726, 485 N.Y.S.2d 742, 475 N.E.2d 113 [1984] ).

 Here, evidence was presented indicating, among other things, that Life Alert recruited its direct sellers through advertisements and referrals and required them to complete application forms (see Matter of Walker [Parents Information Group for Exceptional Children-Commissioner of Labor], 271 A.D.2d 769, 769, 706 N.Y.S.2d 221 [2000] ), provided them with training and scripts for their sales calls (see Matter of Booth [Eagle Intl.-Commissioner of Labor], 26 A.D.3d 692, 693, 809 N.Y.S.2d 655 [2006];  Matter of Venettozzi [Secured-Care Mgt. Servs.-Sweeney], 234 A.D.2d 845, 651 N.Y.S.2d 933 [1996] ), imposed sales quotas which had to be met to avoid termination (see Matter of MacFarlane [Aid Assoc. for Lutherans Corp.-Commissioner of Labor], 35 A.D.3d 1076, 1077, 828 N.Y.S.2d 592 [2006] ), set their commission rate and product prices and handled and reviewed their customer complaints (see Matter of McCarthy [Monsieur Touton Selection-Commissioner of Labor], 276 A.D.2d 988, 988, 714 N.Y.S.2d 583 [2000];  Matter of Esposito [National Write Your Congressman-Commissioner of Labor], 264 A.D.2d 927, 928, 696 N.Y.S.2d 100 [1999] ).   Life Alert also provided them with sales leads, desk space, mailboxes and telephones (see Matter of O'Toole [Biomet, Marx & Diamond, Inc.-Commissioner of Labor], 13 A.D.3d 767, 768, 786 N.Y.S.2d 606 [2004] ).   In addition, evidence was presented indicating that the direct sellers were encouraged to work certain set shifts and were required to sign in each day they worked and to attend meetings concerning the methods they were to use to sell the products (see Matter of Fratello [M & R Consumer Goods-Commissioner of Labor], 271 A.D.2d 880, 881, 706 N.Y.S.2d 517 [2000];  Matter of Dolhon [United Group Agency of N.Y.-Sweeney], 236 A.D.2d 749, 654 N.Y.S.2d 46 [1997] ).

Under these circumstances, we find substantial evidence in the record to support the Board's determination that Life Alert exercised sufficient overall control to establish an employer-employee relationship (see Matter of Priester [City & Suburban Delivery Sys.-Commissioner of Labor], 273 A.D.2d 654, 654-655, 711 N.Y.S.2d 361 [2000], appeal dismissed 96 N.Y.2d 897, 730 N.Y.S.2d 793, 756 N.E.2d 81 [2001] ).   The existence of a written agreement identifying claimants as independent contractors does not compel a different result (see Matter of Kelly [Frank Gallo, Inc.-Commissioner of Labor], 28 A.D.3d 1044, 1045, 814 N.Y.S.2d 340 [2006], lv. dismissed 7 N.Y.3d 844, 823 N.Y.S.2d 772, 857 N.E.2d 67 [2006] ).   Accordingly, we affirm.

ORDERED that the decisions are affirmed, without costs.