                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 10, 2016                    520839
________________________________

In the Matter of the Claim of
   RUBEN TORRES,
                    Respondent.

CRISIS CARE NETWORK, INC.,                  MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   February 11, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


      Carter, Conboy, Case, Blackmore, Maloney & Laird, PC,
Albany (William J. Decaire of counsel), for appellant.

     John Ferrara, Monticello, for Ruben Torres, respondent.

                             __________


Garry, J.P.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed June 12, 2014, which ruled, among other
things, that Crisis Care Network, Inc. was liable for additional
unemployment insurance contributions on remuneration paid to
claimant and others similarly situated.

      Crisis Care Network, Inc. (hereinafter CCN) is engaged in
the business of providing crisis intervention services to an
employer that has experienced workplace tragedies by contracting
with an employer's designated employee assistance program
(hereinafter EAP). CCN also contracts with individual
counselors, whom it refers to as "specialists," to provide actual
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counseling services to the employees affected by the tragedies.
Claimant was retained by CCN as a specialist and received 65
assignments over the course of a 3½-year period. He applied for
unemployment insurance benefits and the Department of Labor
issued an initial determination that claimant and others
similarly situated were employees of CCN, not independent
contractors, and that CCN was liable for additional unemployment
contributions. This determination was upheld by an
Administrative Law Judge following a hearing. The Unemployment
Insurance Appeal Board agreed and also found that claimant was
entitled to receive benefits. CCN appeals.

      Initially, it is well settled that the existence of an
employment relationship is a factual issue for the Board to
resolve and its decision will be upheld if supported by
substantial evidence (see Matter of Concourse Ophthalmology
Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of Hunter
[Gannett Co.–Commissioner of Labor], 125 AD3d 1166, 1167 [1983]).
The dispositive inquiry where, as here, the work of professionals
is involved is whether the purported employer exercised overall
control, that is, control of important aspects of the work
performed (see Matter of Wright [Mid Island Therapy Assoc. LLC
–Commissioner of Labor], 134 AD3d 1216, 1217 [2015]; Matter of
Encore Music Lessons LLC [Commissioner of Labor], 128 AD3d 1313,
1314-1315 [2015]).

      Here, evidence was presented at the hearing that, after
contracting with an EAP, CCN recruits specialists from its self-
created database and screens them to ensure that they have the
qualifications required by the EAP. If a specialist has the
proper qualifications, CCN offers that individual the assignment
at a set hourly rate of pay. If accepted, as in claimant's case,
the parties enter into a written agreement governing that
particular assignment and CCN informs the specialist, based upon
instructions from the EAP, of the date, time and location that
the specialist is to report. While on assignment, the specialist
must represent that he or she is from the EAP and is not
permitted to solicit clients, although there is no prohibition
against a specialist otherwise engaging in private practice or
working for CCN's competitors. Except in very limited
circumstances, CCN pays specialists within 45 days after services
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are rendered upon the submission of the proper paper work by the
specialist regardless of whether it has yet been paid by the EAP,
and CCN also provides reimbursement for travel expenses. CCN
also provides voluntary training. If a specialist is unable to
report to an assignment, he or she must notify CCN and cannot
select a replacement. Furthermore, CCN provides specialists with
informational handouts to be used on assignments, as well as
professional guidelines that are based upon the expectations of
the EAP, and the specialists must provide reports summarizing the
counseling sessions per the requirements of the EAP.

      Notwithstanding the involvement of the EAP in the details
of the assignments, the foregoing demonstrates that CCN
maintained sufficient overall control over important aspects of
the specialists' work to establish the existence of an employment
relationship. Furthermore, we have recognized that "'an
organization which screens the services of professionals, pays
them at a set rate and then offers their services to clients
exercises sufficient control to create an employment
relationship'" (Matter of Lobban [Precinct Security &
Investigations, Inc.–Commissioner of Labor], 131 AD3d 1294, 1294
[2015], quoting Matter of Kimberg [Hudacs], 188 AD2d 781, 781
[1992]; accord Matter of Cobrin [Telecom Consulting Group NE
Corp.–Commissioner of Labor], 91 AD3d 992, 993 [2012]). In view
of the above, we find that substantial evidence supports the
Board's decisions and we decline to disturb them.

     Egan Jr., Lynch, Devine and Clark, JJ., concur.

     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
