New York Employment Law: Find the Independent Contractor

12.10.21

The New York State Appellate Division, 3rd Dept. published three decisions on Thursday, December 9, 2021, determining whether an unemployment insurance claimant is an employee or an independent contractor.  

Before we discuss the rulings, try to guess behind which door there is an independent contractor [there may be more than one independent contractor or none]:

Door #1: Photographer Researcher for a publishing company. This person was an employee before changing over to a contractor, working on an “as needed” basis. Did the exact same things he did before work on a contract basis. 

Door #2: Licensed Architect who refers to himself as self-employed with no set work hours.

Door #3: Professional Actor paid hourly by an Acting School to help teach students the art of acting and directing. 

Which is the independent contractor? 

If you guessed, Doors #1 and #3, you win.

Door #1: In Matter of Levick v. Rosen Publishing Group, the Appellate Division reversed the Unemployment Insurance Appeals Board’s (UIAB) finding that a photograph researcher who worked on projects for a children’s book publishing company was not an employee because he only worked on a project-by-project basis. The court found the fact that the claimant was previously an employee, a distinction that weighed favorably for Rosen Publishing because after the employment status ended, the claimant could accept or reject any assignment.

Door #2: In Matter of Blomstrom v. Stephen H. Katz, the Third Department affirmed the UIAB’s finding of employment. The claimant was an architect who was retained by Katz, another architect and sole proprietor to assist on a project. The claimant held himself out to be an independent contractor, both with the Department of Labor and on social media sites. But the court believed that the fact that the claimant had been given a key to Katz’s place of business, and used his equipment, was enough to create an employment relationship.

Door #3: In Matter of the Claim of Ewens v. School of Visual Arts, the Appellate Division reversed the UIAB’s determination of employment and found that because the claimant was a professional actor, the putative employer would need to have control over the important aspects of his work. The court believed that there was insufficient evidence for a UIAB of employment, despite being paid a flat hourly fee set by the art school and required to give 24 hours’ notice to cancel. The court found that the fact that the claimant had his own website and IMBD listing was consequential to determining independence.

Comment: These three decisions do not give any clarity as to who is or is not an independent contractor in New York. From my perspective, all three are independent contractors, and the difference between an architect who holds himself out as an independent contractor and does professional work at a mutually agreed rate on a project-by-project basis is no different than a professional researcher or actor who both also did their work on a project-by-project basis

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