                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 3, 2015                   520076
________________________________

In the Matter of the Claim of
   JESSIE THOMAS,
                    Respondent.

GENEVA CONSULTING GROUP,                    MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   October 21, 2015

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

                             __________


     Timothy McEnaney, Port Washington, for appellant.

     Francis J. Smith, Albany, for Jessie Thomas, respondent.

      Eric T. Schneiderman, Attorney General, New York City (Gary
Leibowitz of counsel), for Commissioner of Labor, respondent.

                             __________


Lahtinen, J.P.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed February 20, 2014, which ruled, among other
things, that claimant was entitled to receive unemployment
insurance benefits.

      Geneva Consulting Group is a consulting firm that brokers
relationships between its clients and consultants who possess the
skills that the clients need, who are hired to perform
information technology (hereinafter IT) services for the clients.
Claimant was hired to perform IT services for a Geneva client, a
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large bank, from August 20, 2012 until December 14, 2012. After
claimant's employment ended, she applied for unemployment
insurance benefits and the Department of Labor determined that
she was an employee of Geneva entitled to such benefits and that
Geneva was liable for additional contributions based upon
remuneration paid to claimant and others similarly situated.
Following a hearing, an Administrative Law Judge upheld that
determination and the Unemployment Insurance Appeal Board
sustained that determination. Geneva appeals.

      The evidence at the hearing demonstrated that claimant, who
runs her own consulting business, Jessica Consultant LLC,
responded to an advertisement placed by Geneva that listed the
job requirements and necessary IT background for a position with
its client; Geneva screened her and forwarded her credentials to
its client, which interviewed and approved of claimant. Geneva
required that claimant sign a contract that designated her as the
consultant assigned to perform the IT services for the client,
and labeled her as an independent contractor. Geneva employed
approximately 35 people as consultants who received benefits and
designated another 15 consultants as independent contractors who
were required to be in business for themselves and to obtain,
among other things, their own liability insurance, but Geneva's
chief financial officer conceded that both groups provided the
"same services" and had the "same skills." Geneva contracted
with its client to provide claimant's services and charged the
client for those services, and Geneva paid claimant a negotiated
daily rate. Claimant worked a full-time schedule set by the
client and performed services in the client's office where she
was provided a desk, computer, supplies and support staff.
Claimant reported regularly to the client's manager, who
instructed her on the client's needs and expectations, trained
her on the client's systems, gave her assignments, set her
deadlines and approved her time sheets, which were submitted to
Geneva for payment. Claimant could not provide substitutes or
refuse assigned work and needed the client's approval to take
time off from work. Notwithstanding evidence in the record to
support a contrary conclusion, the foregoing evidence constitutes
substantial evidence that Geneva, through its clients, supervised
and exercised control over the results produced by claimant as
well as the means employed to achieve those results so as to
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establish that she was an employee of Geneva (see Matter of
Dwightmoore [Fanfair-Commissioner of Labor], 126 AD3d 1221, 1222-
1223 [2015]; Matter of DeRose [Winston Retail Solutions, LLC-
Commissioner of Labor], 119 AD3d 1174, 1175 [2014]; Matter of
Victor [Aubrey Organics, Inc.-Commissioner of Labor], 116 AD3d
1327, 1327-1328 [2014]; Matter of Rios [La Prairie, Inc.-
Commissioner of Labor], 279 AD2d 681, 681 [2001]).

      However, Geneva's contention that claimant was not entitled
to unemployment insurance benefits because she was not totally
unemployed (see Labor Law § 591 [1]) must be remitted for a
determination thereon. While the original notice of hearing did
not list the issue of total unemployment as an issue to be
determined at the hearing, claimant testified on cross-
examination, without objection, about tasks performed and
expenditures made on behalf of her ongoing company after her
services for Geneva were terminated. The Administrative Law
Judge determined that the issue was "premature" and otherwise not
supported by sufficient record evidence (see 12 NYCRR 461.4 [d];
compare Matter of American Home Improvement Prods. [Commissioner
of Labor], 261 AD2d 760, 762 [1999]), a finding undisturbed by
the Board, which we conclude is not supported by substantial
evidence. The issue should have been further developed and
resolved since a finding that claimant was not totally unemployed
would have resulted in a denial of benefits (see Labor Law § 591
[1]; Matter of Lewis [Commissioner of Labor], 106 AD3d 1313,
1313-1314 [2013]).

     Egan Jr., Lynch and Devine, JJ., concur.
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      ORDERED that the decisions are modified, without costs, by
reversing so much thereof as failed to determine whether claimant
was totally employed and as awarded claimant unemployment
insurance benefits; matters remitted to the Unemployment
Insurance Appeal Board for further proceedings not inconsistent
with this Court's decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
