                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 18, 2014                    517750
________________________________

In the Matter of AMOS E.
   MACKEY,
                    Respondent.

PROMETRIC INC.,                              MEMORANDUM AND ORDER
                     Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:    August 4, 2014

Before:   Lahtinen, J.P., McCarthy, Lynch, Devine and Clark, JJ.

                              __________


      Jackson Lewis, LLP, Albany (Kristi M. Rich of counsel), for
appellant.

      Cynthia Feathers, Glens Falls, for Amos E. Mackey,
respondent.

                              __________


      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed January 15, 2013, which ruled, among other
things, that Prometric Inc. is liable for additional unemployment
insurance contributions based on remuneration paid to claimant
and others similarly situated.

      Prometric Inc. is a provider of testing and assessment
services, and had a contract with New York to evaluate candidates
wishing to become certified nursing assistants. Prometric
entered into consulting and service agreements with individuals
known as nurse aide evaluators (hereinafter NAEs) to proctor the
written tests and administer the practical skills examinations
given to these candidates. NAEs were required to be registered
                              -2-                517750

nurses in good standing in New York with at least two years of
experience and one year of experience in long-term care.
Claimant was retained by Prometric for this purpose. When he
ceased working for Prometric, he applied for unemployment
insurance benefits. Following extended proceedings, the
Unemployment Insurance Appeal Board ruled that claimant and other
similarly situated NAEs were employees of Prometric and that it
is liable for additional unemployment insurance contributions
based on remuneration paid to these individuals. It further
ruled that claimant was entitled to receive benefits. Prometric
appeals from both of these decisions.

      The sole issue is whether there is an employment
relationship between Prometric and claimant, and the other
similarly situated NAEs. It is well settled that the existence
of an employment relationship is a factual issue for the Board to
decide and its determination will be upheld if supported by
substantial evidence (see Matter of Concourse Ophthalmology
Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of Crahan
[Progress Rail Servs. Corp.–Commissioner of Labor], 116 AD3d
1277, 1277-1278 [2014]). Significantly, where, as here, the work
of medical professionals is involved, the pertinent inquiry is
whether the purported employer retained overall control over the
work performed (see Matter of Goddard [Summit Health, Inc.
–Commissioner of Labor], 118 AD3d 1200, 1201 [2014]; Matter of
Scinta [Examone World Wide Inc.–Commissioner of Labor], 113 AD3d
959, 960 [2014]; Matter of Guidicipietro [Hariton & D'Angelo,
LLP–Commissioner of Labor], 24 AD3d 1159, 1160 [2005]).

      Here, Prometric developed an assessment tool to be used to
evaluate the skills that a test candidate needed to perform and
conducted annual training sessions with claimant and other NAEs
to ensure consistency in testing. Prometric interviewed
individuals that it wished to retain as NAEs and reimbursed them
for mileage and travel expenses. It established an hourly rate
of pay for specific work activities, but other rates were
sometimes negotiated depending upon the circumstances. The work
of the NAEs was performed off site either at nursing homes or
training facilities and the NAEs chose their work assignments
from a computer-generated list. Although the NAEs had
flexibility in scheduling their assignments and did not have set
                              -3-                  517750

hours, if an NAE was unable to show, Prometric was responsible
for finding a replacement or canceling the test. Notably,
Prometric provided claimant with all testing materials and other
equipment needed to evaluate the candidates, had him wear an
identification badge and required him to maintain strict
confidentiality. Furthermore, Prometric had a senior nurse
evaluator conduct an annual review of claimant's work who
assisted him in correcting any deficiencies. The foregoing
indicates that Prometric retained sufficient overall control over
the work of claimant and other similarly situated NAEs to be
considered their employer (see Matter of Goddard [Summit Health
Inc.–Commissioner of Labor], 118 AD3d at 1201-1202).
Accordingly, notwithstanding the written agreement labeling
claimant an independent contractor (see Matter of Professional
Career Ctr. [Commissioner of Labor], 105 AD3d 1219, 1220 [2013]),
substantial evidence supports the Board's decisions.

      Lahtinen, J.P., McCarthy, Lynch, Devine and Clark, JJ.,
concur.



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
