                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 9, 2015                     519720
________________________________

In the Matter of the Claim of
   NICOLE S. LEE,
                    Respondent.

ENCORE NATIONWIDE INC.,                     MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   February 24, 2015

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

                             __________


      Brody & Associates, LLC, Westport, Connecticut (Robert G.
Brody of counsel), for appellant.

      McNamee, Lochner, Titus & Williams, PC, Albany (Francis J.
Smith of counsel), for Nicole S. Lee, respondent.

      Eric T. Schneiderman, Attorney General, New York City
(Marjorie S. Leff of counsel), for Commissioner of Labor,
respondent.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed November 20, 2013, which ruled, among other things,
that Encore Nationwide Inc. is liable for unemployment insurance
contributions on remuneration paid to claimant and others
similarly situated.

      Encore Nationwide Inc. challenges a decision of the
Unemployment Insurance Appeal Board finding, among other things,
that claimant and others similarly situated were its employees,
                              -2-                519720

not independent contractors, for whom is it liable for
unemployment insurance contributions. Based upon a thorough
review of the record before us, we are compelled to find that the
Board's decision is not supported by substantial evidence and,
therefore, it must be reversed.

      Encore is an event staffing company that refers
individuals, which it calls brand ambassadors, to clients that
want to promote a product or service at an event. Claimant
worked as a brand ambassador. Encore maintains a database that
contains postings of client events as well as a list of brand
ambassadors. Encore assembles the list by having the brand
ambassadors, most of whom are promotional models, complete a
registration form, a W9-form and a profile containing specific
information about themselves. When client events are posted on
Encore's website, those interested in working the event express
their interest and the client selects them from the database.
The client then informs Encore which, in turn, bills the client
for services rendered as well as an agency fee after the event is
concluded.

      In determining whether an employment relationship existed
between Encore and its brand ambassadors, the pertinent inquiry
is whether Encore exercised control "over the results produced or
the means used to obtain those results, with control over the
latter being the more important factor to consider" (Matter of
Holleran [Jez Enters., Inc.–Commissioner of Labor], 98 AD3d 757,
758 [2012]; see Matter of Empire State Towing & Recovery Assn.,
Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]; Matter of
Smith [College Network Inc.–Commissioner of Labor], 109 AD3d
1058, 1059 [2013]). Here, the evidence reveals that Encore
retained little or no control over either the means or results of
the work performed by the brand ambassadors. Significantly,
Encore did not conduct interviews, auditions or background
checks, did not review credentials or set the rate of pay, did
not provide training or supervision at events, did not establish
work schedules, did not supply equipment, clothing or props and
did not evaluate performance. Notably, it was the clients who
directed the brand ambassadors by providing them with instruction
on how to promote the specific products or services. Contrary to
claimant's suggestion, there is nothing to indicate that these
                              -3-                  519720

clients were acting as agents of Encore. Accordingly, inasmuch
as we find the requisite control lacking, we reverse the Board's
decision (see Matter of Richins [Quick Change Artistry,
LLC–Commissioner of Labor], 107 AD3d 1342, 1344 [2013]; Matter of
Best [Lusignan–Commissioner of Labor], 95 AD3d 1536, 1537-1538
[2012]; compare Matter of Ivy League Tutoring Connection, Inc.
[Commissioner of Labor], 119 AD3d 1260, 1261 [2014]). In light
of the foregoing, we need not address Encore's remaining claims.

     Lahtinen, J.P., Egan Jr., Rose and Clark, JJ. concur.



      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
