IN RE: the Claim of Aston R. THOMAS (2020)

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 17, 2019, which ruled that U.S. Pack Logistics, LLC was liable for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated.

US Pack Logistics, LLC is in the business of facilitating the logistics of, among other things, deliveries for its clients.  Claimant applied for and was hired by U.S. Pack to pick up and deliver blood samples for one of its clients.  The Unemployment Insurance Appeal Board determined that claimant was an employee of U.S. Pack and that U.S. Pack was liable for unemployment insurance contributions on remuneration paid to claimant and those similarly situated.  US Pack appeals.

We affirm.  “Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the Board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion” (Matter of Thorndike [Penn Mut. Life Ins. Co.-Commissioner of Labor], 185 A.D.3d 1255, 1255, 127 N.Y.S.3d 213 [2020] [internal quotation marks and citations omitted];  see Matter of Vega [Postmates Inc.-Commissioner of Labor], 35 N.Y.3d 131, 136, 125 N.Y.S.3d 640, 149 N.E.3d 401 [2020] ).  “Traditionally, the Board considers a number of factors in determining whether a worker is an employee or an independent contractor, examining all aspects of the arrangement.  But the touchstone of the analysis is whether the employer exercised control over the results produced by the worker or the means used to achieve the results” (Matter of Vega [Postmates Inc.-Commissioner of Labor], 35 N.Y.3d at 137, 125 N.Y.S.3d 640, 149 N.E.3d 401 [internal quotation marks, brackets and citations omitted] ).

Upon our review of the record, we find substantial evidence to support the Board's finding of an employer-employee relationship.  The record reflects that claimant was assigned specific workdays and hours by U.S. Pack's operations manager and was issued an identification badge bearing U.S. Pack's name.  Claimant was required to sit in the client's parking lot during set hours – for which he was paid a set fee – and wait for U.S. Pack to contact him with assignments.  The client would notify U.S. Pack about assignments, which, in turn, would call claimant to retrieve the assignments.  Claimant was required to call dispatch at U.S. Pack once the assignments were loaded into his car.  Once a delivery was completed, claimant was required to call dispatch again, providing the name of the person who accepted the delivery and the time delivery was complete, before moving onto the next delivery.  Although claimant could refuse an assignment, he testified that when he did, he was told he could be fired, and the following day was punished by being passed over for assignments.  Some compensation was negotiated, although claimant testified that U.S. Pack set the compensation of some of the deliveries.

Although the record establishes that claimant used his own vehicle and was not reimbursed any expenses, the record nevertheless supports the Board's conclusion that U.S. Pack exercised sufficient supervision, direction and control over significant aspects of claimant's work to establish an employer-employee relationship (see Matter of Vega [Postmates Inc.-Commissioner of Labor], 35 N.Y.3d at 139–140, 125 N.Y.S.3d 640, 149 N.E.3d 401;  Matter of Ramlall [Medical Delivery Servs.-Commissioner of Labor], 182 A.D.3d 960, 961, 123 N.Y.S.3d 255 [2020];  Matter of Crystal [Medical Delivery Servs.-Commissioner of Labor], 150 A.D.3d 1595, 1597, 55 N.Y.S.3d 518 [2017];  Matter of Voisin [Dynamex Operations E., Inc.-Commissioner of Labor], 134 A.D.3d 1186, 1187–1188, 20 N.Y.S.3d 243 [2015];  Matter of Mitchum [Medifleet, Inc.-Commissioner of Labor], 133 A.D.3d 1156, 1157, 20 N.Y.S.3d 235 [2015] ).  To the extent that U.S. Pack challenges the Board's finding that an employment relationship applies to others similarly situated, we find it to be without merit (see Matter of Mitchum [Medifleet, Inc.-Commissioner of Labor], 133 A.D.3d at 1157–1158, 20 N.Y.S.3d 235).  We have reviewed U.S. Pack's remaining contentions and find them to be without merit.

ORDERED that the decision is affirmed, without costs.

Pritzker, J.

Lynch, J.P., Clark, Aarons and Reynolds Fitzgerald, JJ., concur.