                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 26, 2015                    518607
________________________________

In the Matter of the Claim of
   CYNTHIA VIAU,
                    Respondent.

NEW YORK STATE OFFICE OF COURT               MEMORANDUM AND ORDER
   ADMINISTRATION,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:    January 13, 2015

Before:   Peters, P.J., Rose, Egan Jr. and Clark, JJ.

                              __________


      New York State Office of Court Administration, New York
City (Pedro Morales of counsel), for appellant.

      Cynthia Feathers, Glens Falls, for Cynthia Viau,
respondent.

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

                              __________


Peters, P.J.

      Appeal   from a decision of the Unemployment Insurance Appeal
Board, filed   May 31, 2013, which ruled, among other things, that
the New York   State Office of Court Administration is liable for
unemployment   insurance contributions on remuneration paid to
claimant and   others similarly situated.

     In April 2003, the Office of Court Administration
                              -2-                518607

(hereinafter OCA) notified claimant that she had passed the civil
service examination qualifying her to work as a Spanish
interpreter and placed her on a list of candidates eligible to
fill full-time vacancies within OCA. She was also advised that,
until her name was reached on the eligible list, she could submit
an application to be put on OCA's registry of voucher paid
interpreters from which interpreters are selected on an
"as-needed basis." Claimant submitted an application, along with
the required fingerprint forms and application fee, and OCA
listed her on the registry, which consists of interpreters who
have been found qualified by OCA to work on a per diem basis.1
For years, claimant received only sporadic assignments. In
December 2009, she started working in the Bronx Family Court
where she continued to work every day until March 2012.

      Upon claimant's application for unemployment insurance
benefits, the Department of Labor found her to be an employee of
OCA and, as such, found OCA liable for contributions on
remuneration paid to claimant and others similarly situated. OCA
objected on the ground that claimant was an independent
contractor. After a hearing, an Administrative Law Judge upheld
the initial determination, and the Unemployment Insurance Appeal
Board affirmed. OCA appeals, arguing that, in concluding that
claimant was an employee, the Board ignored the essential
independence of per diem interpreters and relied on minor factors
to find the existence of an employer-employee relationship. OCA
further contends that, by its decision, the Board interfered with
OCA's constitutional mission to deliver services in a responsible
and cost-effective manner and failed to defer to the judgment of
the Chief Administrative Judge in assessing the operational needs
of the Unified Court System.

      Whether an employer-employee relationship exists "is a
factual issue for the Board to resolve and its decision will be
upheld if supported by substantial evidence" (Matter of Ruano
[Commissioner of Labor], 118 AD3d 1088, 1088 [2014], lv dismissed


    1
        In 2012, OCA employed approximately 300 staff
interpreters and maintained a registry of 700 per diem
interpreters.
                              -3-                518607

24 NY3d 1039 [2014]; see Matter of Columbia Artists Mgt. LLC
[Commissioner of Labor], 109 AD3d 1055, 1056 [2013]). "While no
single factor is determinative, control over the results produced
or the means used to achieve those results are pertinent
considerations, with the latter being more important" (Matter of
Joyce [Coface N. Am. Ins. Co.-Commissioner of Labor], 116 AD3d
1132, 1134 [2014] [internal quotation marks and citations
omitted]; see Matter of Guidotti [Swissport USA, Inc.-
Commissioner of Labor], 119 AD3d 1265, 1265 [2014]). We find
that substantial evidence supports the Board's decision that OCA
exercised sufficient supervision, direction and control over this
claimant's work activities to establish an employer-employee
relationship, but decline to extend this holding to others
"similarly situated."

      During the nearly 2½ years that claimant worked at the
Bronx Family Court, she was required to work a set schedule from
9:30 a.m. to 4:30 p.m. (see Matter of Stewart [AML Partners, LLC-
Commissioner of Labor], 118 AD3d 1198, 1199 [2014]). When first
assigned to that court, she was scheduled to report for a few
weeks, but it was not long before claimant was scheduled monthly
in advance (see Matter of Nance [NYP Holdings Inc.-Commissioner
of Labor], 117 AD3d 1294, 1295 [2014]). Although claimant did
not have to accept assignments, once she was on the schedule, she
could not take time off, nor was she allowed to send someone in
her place (see Matter of DeRose [Winston Retail Solutions, LLC-
Commissioner of Labor], 119 AD3d 1174, 1175 [2014]; Matter of
Ruano [Commissioner of Labor], 118 AD3d at 1089); if she knew she
needed time off, she was expected to tell her supervisor in
advance so she would not be put on the schedule (see Matter of
Duno [Anthony Stone Investigative & Sec. Servs., Inc.-
Commissioner of Labor], 120 AD3d 1512, 1513 [2014]). Upon
arriving at work each morning, claimant reported to the senior
court interpreter, who told her where to report. OCA set
claimant's rate of pay (see id. at 1513; Matter of Ruano [Legal
Interpreting Servs.-Commissioner of Labor], 118 AD3d at 1089;
Matter of Stewart [AML Partners, LLC-Commissioner of Labor], 118
AD3d at 1199; Matter of Nance [NYP Holdings Inc.-Commissioner of
Labor], 117 AD3d at 1295) and, upon reporting to the court, she
was paid – by direct deposit into her personal checking account –
whether or not she actually provided interpreting services (see
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Matter of FMI Interpreting Servs. [Hudacs], 192 AD2d 1006, 1006
[1993]).

      In addition to the above indica of control over claimant's
daily activities, OCA screened claimant for her language
proficiency in the form of the civil service examination (see
Matter of Ivy League Tutoring Connection, Inc. [Commissioner of
Labor], 119 AD3d 1260, 1261 [2014]), it provided her with
training in courtroom interpreting – procedures and protocols
that she was required to abide by (see Matter of DeRose [Winston
Retail Solutions, LLC-Commissioner of Labor], 119 AD3d at 1175;
Matter of Booth [Eagle Intl., Inc.-Commissioner of Labor], 26
AD3d 692, 693 [2006]) – and she was occasionally observed by a
supervisor to ascertain her performance in the courtroom.
Although staff interpreters had some additional duties as
compared to per diem interpreters, all interpreters performed the
same core functions, and all had access to available work space
and office equipment. In addition, claimant was required to
comply with the Unified Court System's ethics manual, which was
applicable to all staff and per diem interpreters (see Matter of
Duno [Anthony Stone Investigative & Sec. Servs., Inc.-
Commissioner of Labor], 120 AD3d at 1513; Matter of DeRose
[Winston Retail Solutions, LLC-Commissioner of Labor, 119 AD3d at
1175), and complaints from judges or the public about claimant's
work or professionalism were responded to by OCA (see Matter of
FMI Interpreting Servs. [Hudacs], 192 AD2d at 1006), which then
could impose various methods of discipline. Finally, although
claimant could work for other entities, the record contains no
"indicia of self-employment," i.e., that she independently
advertised her services as an interpreter (Matter of Williams
[Commissioner of Labor], 268 AD2d 621, 622 [2000]; see Matter of
Barone [Commissioner of Labor], 257 AD2d 950, 951 [1999]; Matter
of Bellson Floors [Sweeney], 239 AD2d 641, 642 [1997]) and, in
fact, claimant testified that she did not have an interpretation
business. Under these circumstances, and notwithstanding
evidence in the record that could support a contrary conclusion,
we find that OCA exercised more than incidental control over the
results of claimant's work to support the Board's finding of an
employer-employee relationship (see Matter of Ruano [Commissioner
of Labor], 118 AD3d at 1089).
                              -5-                518607

      We further hold that the Board's decision did not
improperly interfere with the powers or duties of the Chief
Administrative Judge in assessing the operational needs of the
Unified Court System. While the administrative powers of the
Chief Administrative Judge may be extraordinarily broad, such
authority does not exempt compliance with the Unemployment
Insurance Law (see Labor Law § 512). Contrary to OCA's
contention, the Board's decision does not impinge on any aspect
of the functional or structural independence of the Judiciary
and, therefore, its reliance on Matter of Maron v Silver (14 NY3d
230, 258-262 [2010]) is misplaced. Although the Board determined
that OCA was liable for contributions on remuneration paid to
claimant and others similarly situated, "[t]he factual question
of whether any other individuals actually perform the same work
under the same conditions [as claimant is] left open for
resolution in subsequently pursued cases, if there be any"
(Matter of Robinson [New York Times Newspaper Div. of N.Y. Times
Co.-Hartnett], 168 AD2d 746, 747-748 [1990], lv denied 78 NY2d
853 [1991]; see Matter of Booth [Eagle Intl., Inc.-Commissioner
of Labor], 26 AD3d at 694).

      Finally, contrary to OCA's contention, the Board did not
ignore its prior precedent in determining that claimant was an
employee rather than an independent contractor. The prior
determination upon which OCA now relies was not made by the
Board, but by a reviewing examiner for the Department of Labor
and, as such, the Board is not bound by it (see Matter of Bull
[Yansick Lbr. Co.– Sweeney], 235 AD2d 722, 723-724 [1997], lv
dismissed 90 NY2d 913 [1997]).

     Rose, Egan Jr. and Clark, JJ., concur.
                              -6-                  518607

      ORDERED that the decision is modified, without costs, by
reversing so much thereof as found that all persons similarly
situated to claimant are employees of the New York State Office
of Court Administration, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
