                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 29, 2016                   522848
________________________________

In the Matter of TMR SECURITY
   CONSULTANTS, INC.,
                    Appellant.
                                            MEMORANDUM AND ORDER
COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   November 16, 2016

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

                             __________


      McNamee, Lochner, Titus & Williams, PC, Albany (Scott C.
Paton of counsel), for appellant.

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

                             __________


Aarons, J.

      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed June 9, 2015, which assessed TMR Security
Consultants, Inc. for additional unemployment insurance
contributions.

      To provide various security services for its clients, TMR
Security Consultants, Inc. solicited the services of licensed
security officers, many of whom are former police officers,
military personnel or firefighters or otherwise have law
enforcement experience. Following an audit by the Department of
Labor for the years 2008 and 2009, TMR was assessed for
unemployment insurance contributions on behalf of the security
officers who performed services for its clients. TMR objected,
contending that its security officers were independent
                              -2-                522848

contractors rather than employees. Following a hearing, an
Administrative Law Judge sustained TMR's objection and overruled
the Department's determination. Upon administrative review, the
Unemployment Insurance Appeal Board, finding that an employment
relationship existed between TMR and its security officers,
reversed the decision of the Administrative Law Judge and upheld
the Department's initial determination. TMR appeals. We
reverse.

      "Whether there exists an employment relationship is a
factual issue for resolution by the Board and its decision will
not be disturbed when supported by substantial evidence" (Matter
of Greystoke Indus. LLC [Commissioner of Labor], 142 AD3d 746,
746 [2016] [internal quotation marks and citations omitted]; see
Matter of Eray Inc. [Commissioner of Labor], 136 AD3d 1129, 1130
[2016]). "Although no single factor is determinative, the
relevant inquiry is whether the purported employer exercised
control over the results produced or the means used to achieve
those results, with control over the latter being the more
important factor" (Matter of Davis [Niagara Falls Hous. Auth.—
Commissioner of Labor], 142 AD3d 1269, 1270 [2016] [internal
quotation marks, brackets and citations omitted]; accord Matter
of Dwyer [Nassau Regional Off-Track Corp.—Commissioner of Labor],
138 AD3d 1369, 1370 [2016]; see Matter of Duno [Anthony Stone
Investigative & Sec. Servs., Inc.—Commissioner of Labor], 120
AD3d 1512, 1513 [2014]).1

      The record evidence reveals that TMR posted
security-related jobs on a secure website for its clients, who
dictated the hours to be worked, as well as the scope of services


    1
        To the extent that we have applied the overall control
test to determine whether an employer-employee relationship
exists in unemployment insurance cases involving individuals
providing security services (see Matter of Lobban [Precinct Sec.
& Investigations, Inc.–Commissioner of Labor], 131 AD3d 1294,
1294 [2015]; Matter of Klotz [Blue Perimeter, Inc.–Commissioner
of Labor], 127 AD3d 1459, 1460 [2015]; Matter of Ray Catena Corp.
[Commissioner of Labor], 274 AD2d 819, 820 [2000]), such cases
should no longer be followed for that proposition.
                              -3-                522848

that were needed. The security officers, after browsing through
these postings, would request to work on any particular job,
which TMR ultimately awarded on a "first come, first serve"
basis. The security officers were free to select a job that they
wanted and were not prohibited from seeking jobs from TMR's
competitors. TMR did not provide the security officers with
training or equipment nor did TMR pay the security officers a set
hourly rate. Furthermore, once TMR placed the security officer
with a client, TMR did not enter into a contract with the
security officer. While a security officer could be in the
middle of a continuing job for a client, he or she was
nonetheless free to leave at any point and work elsewhere. In
addition, if an issue arose with the security officer's
performance, the client dealt with the security officer directly,
and TMR would be notified if it needed to provide a substitute
security officer. Inasmuch as the proof of incidental control
relied upon by the Board does not support the conclusion that the
security officers were employees (see Matter of Yoga Vida NYC,
Inc. [Commissioner of Labor], 28 NY3d 1013, 1016 [2016]), under
the circumstances of this case, the Board's decision must be
reversed (see Matter of Chan [Market Force Info.–Commissioner of
Labor], 128 AD3d 1146, 1146-1147 [2015]; Matter of Lee [Encore
Nationwide Inc.–Commissioner of Labor], 127 AD3d 1399, 1399-1400
[2015]; Matter of Jennings [American Delivery Solution, Inc.–
Commissioner of Labor], 125 AD3d 1152, 1153 [2015]; Matter of
John Lack Assoc., LLC [Commissioner of Labor], 112 AD3d 1042,
1043-1044 [2013]; Matter of Best [Lusignan–Commissioner of
Labor], 95 AD3d 1536, 1537-1538 [2012]).

     Egan Jr., J.P., Lynch, Rose and Clark, JJ., concur.
                              -4-                  522848

      ORDERED that the decision is reversed, without costs, and
matter remitted to the Unemployment Insurance Appeal Board for
further proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
