Matter of Alemic (Commr. of Labor)

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 30, 2016 521480
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In the Matter of the Claim of
MIRELA ALEMIC,
Respondent.
HERALD PUBLISHING CO., Doing
Business as THE MEMORANDUM AND ORDER
POST-STANDARD,
Appellant.
COMMISSIONER OF LABOR,
Respondent.
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Calendar Date: May 31, 2016
Before: Lahtinen, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.
__________
The Zinser Law Firm, PC, Nashville, Tennesee (Glenn E.
Plosa, admitted pro hac vice) and Sabin, Bermant & Gould LLP, New
York City (Peter Lerner of counsel), for appellant.
Hiscock Legal Aid Society, Syracuse (Erin M. Tyreman of
counsel), for Mirela Alemic, respondent.
__________
Lynch, J.
Appeals (1) from two decisions of the Unemployment
Insurance Appeal Board, filed October 7, 2014, which ruled, among
other things, that Herald Publishing Co. was liable for
unemployment insurance contributions on remuneration paid to
claimant and others similarly situated, and (2) from a decision
of said Board, filed October 7, 2014, which ruled that claimant
was entitled to receive unemployment insurance benefits.
-2- 521480
Herald Publishing Co., engaged in the publication of a
newspaper, entered into a contract with claimant to deliver the
newspaper to home subscribers seven days a week. When claimant's
schedule was reduced to three days a week, she resigned and
applied for unemployment insurance benefits. Following a
hearing, the Unemployment Insurance Appeal Board affirmed the
decisions of the Administrative Law Judge ruling that an
employer-employee relationship existed, assessing Herald
Publishing for additional unemployment insurance contributions on
remuneration paid to claimant and others similarly situated and
finding that claimant was entitled to receive unemployment
insurance benefits as she had good cause to leave her employment.
These appeals by Harold Publishing ensued.
Initially, a review of the record establishes that the
indicia of control that Harold Publishing retained through the
contract with claimant, even if such control was not fully
exercised, was sufficient to establish an employment
relationship. Specifically, claimant was assigned a specific
route, was required to provide proof of a driver's license and
insurance, including for substitutes, and was directed to
assemble and deliver papers by a specified time. The rate of pay
was set forth in the contract and, within seven days of notice,
claimant was required to provide written circulation reports with
names and addresses of those to whom papers are being delivered.
Contrary to Harold Publishing's contention, we find no errors of
fact that undermine the Board's decisions. Furthermore, we are
unpersuaded that the Department of Labor guidelines were not
properly considered in rendering its determination or that the
guidelines mandate a different result (see Matter of Travis
[Gannett Satellite Info. Network, Inc.–Commissioner of Labor],
127 AD3d 1349, 1349 [2015]; Matter of Armison [Gannett Co.,
Inc.–Commissioner of Labor], 122 AD3d 1101, 1103 [2014], lv
dismissed 24 NY3d 1209 [2015]). Although there is evidence to
support a contrary conclusion, the record nevertheless contains
substantial evidence to support the Board's factual finding that
an employment relationship exists (see Matter of Rosenfelder
[Community First Holdings, Inc.–Commissioner of Labor], 137 AD3d
1438, 1439-1440 [2016]).
-3- 521480
Having found that claimant was an employee, we turn to the
Board's decision finding that claimant was entitled to
unemployment insurance benefits. We note that whether there was
good cause to voluntarily leave employment is a factual issue for
the Board to resolve (see Matter of Heller [Paragon Motors of
Woodside, Inc.–Commissioner of Labor], 83 AD3d 1229, 1229
[2011]). Here, the Board credited claimant's testimony that she
resigned shortly after Harold Publishing reduced the weekly
delivery from seven to three days and modified her pay rate,
making it no longer financially feasible to continue her
employment. Although Harold Publishing notes other personal and
noncompelling reasons for claimant's resignation, given the
substantial change in the terms and conditions of claimant's
employment, substantial evidence supports the Board's finding
that claimant had good cause to leave her employment and the
Board's decision that she is entitled to unemployment insurance
benefits will not be disturbed (see e.g. id. at 1230; Matter of
Lavecchia [Dana Funding–Commissioner of Labor], 265 AD2d 724,
724-725 [1999]; cf. Matter of Faison [Commissioner of Labor], 120
AD3d 1480, 1481 [2014]).
Lahtinen, J.P., Egan Jr., Devine and Mulvey, JJ., concur.
ORDERED that the decisions are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court