IN RE: the Claim of Annette D. MULHOLLAND

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: the Claim of Annette D. MULHOLLAND, Respondent. Motherly Love Care Inc., Appellant. Commissioner of Labor, Respondent.

Decided: February 25, 1999

Before:  CARDONA, P.J., MIKOLL, MERCURE, CARPINELLO and GRAFFEO, JJ. Duncan & Fish LLP (Livia Vogel of counsel), Setauket, for appellant. McNamee, Lochner, Titus & Williams P.C. (Francis J. Smith of counsel), Albany, for Annette D. Mulholland, respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 16, 1997, which ruled that Motherly Love Care Inc. was liable for additional unemployment insurance contributions based upon remuneration paid to claimant and those similarly situated.

Motherly Love Care Inc. responds to requests for in-home nursing care for critically ill children by soliciting pediatric nurses through newspaper advertisements.   It does not have a standard registry of nurses.   It pays the nurses on a weekly basis per attendance sheets completed by the nurse and signed by the child's parents.   Claimant, a registered nurse, provided services through Motherly Love via a written agreement identifying her as an independent contractor.   After being relieved of particular placements, she filed a claim for unemployment insurance benefits claiming to be an employee of Motherly Love. The Unemployment Insurance Appeal Board ruled that claimant and those similarly situated were in fact employees of Motherly Love. This appeal ensued.

We are persuaded by Motherly Love's contention that the record does not contain substantial evidence demonstrating that claimant and those similarly situated were its employees.   This determination turns on Motherly Love's lack of overall control over claimant's work (see, Matter of Concourse Ophthalmology Assocs. [Roberts], 60 N.Y.2d 734, 736, 469 N.Y.S.2d 78, 456 N.E.2d 1201).   While the nurses are indeed paid by Motherly Love, they are free to refuse an offered placement, may work for other agencies and can leave a family at any time.   Their hourly rate is negotiable.   Moreover, the nurses are responsible for carrying their own malpractice insurance and for finding replacement coverage that meets with the approval of a child's parents.   Significantly, nurses can independently solicit work from the families for whom they are providing care after placement by Motherly Love without any repercussions from the latter.   The nurses are evaluated by the family and the family has the final word on all hiring and firing.

Additionally, Motherly Love does not set “the parameters of care to be provided by the nurse” (cf., Matter of Skeete [Cooper Sq. Nurses Registry-Commissioner of Labor], 253 A.D.2d 926, 678 N.Y.S.2d 153, lv. denied 93 N.Y.2d 802, 687 N.Y.S.2d 626, 710 N.E.2d 273).   Rather, the nurses get their orders from the child's physician, and the nurse and physician together “come up with a care plan”.   If nurses have any problems, they contact the physician.   Nor is there any daily or weekly supervision of the nurses' work performance (cf., id.).

Twice per year, Motherly Love is required by the State Department of Health to evaluate all nurses it places.   In fulfilling the mandates of the State, however, Motherly Love does not exercise control over the nurses or the nature of their work, nor does it exercise the right to curtail their services.   Rather, it simply evaluates their performance and reports any deficiencies.   Notably, if a nurse receives a bad evaluation, Motherly Love notifies the child's parents who alone decide whether to continue employing that nurse.   It simply has no control or right to remove a nurse from a household for any reason, including a poor evaluation.   Under these circumstances, we are unable to conclude that substantial evidence exists in the record to support the Board's decision that Motherly Love exercises sufficient control over claimant's work to establish an employee-employer relationship (see, Matter of HTA of New York [Commissioner of Labor], 255 A.D.2d 733, 680 N.Y.S.2d 725;  cf., Matter of Loughran [Foley Nursing Agency-Commissioner of Labor], 258 A.D.2d 857, 686 N.Y.S.2d 510 [decided herewith];  Matter of Boone [Shore Rd. Community Serv.-Sweeney], 245 A.D.2d 617, 664 N.Y.S.2d 679).

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.

CARPINELLO, J.

CARDONA, P.J., MIKOLL, MERCURE and GRAFFEO, JJ., concur.

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