                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 28, 2016                   520636
________________________________

In the Matter of the Claim of
   MICHAEL D. STRAUSS,
                    Respondent.

RMC RESEARCH CORPORATION,                   MEMORANDUM AND ORDER
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   December 15, 2015

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

                             __________


      Day Pitney, LLP, Stamford, Connecticut (Daniel L. Schwartz
of counsel), for appellant.

      Michelle I. Rosien, Philmont, for Michael D. Strauss,
respondent.

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

                             __________


McCarthy, J.P.

      Appeals from two decisions of the Unemployment Insurance
Appeal Board, filed May 12, 2012, which ruled, among other
things, that RMC Research Corporation is liable for additional
unemployment insurance contributions on remuneration paid to
claimant and others similarly situated.

      RMC Research Corporation, an educational research firm,
contracted with the New York City Department of Education to
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provide teaching consultants, known as "peer observers," for the
purpose of evaluating teachers who had received unsatisfactory
ratings by school administrators. RMC retained former teachers,
including claimant, to act as peer observers at various schools
within the Department's jurisdiction. After entering into a
"consultant agreement" with RMC and receiving a case assignment,
claimant was required to make 10 site visits to the school where
the unsatisfactory teacher was assigned, six for observation,
three for consultation and one for final assessment. In
addition, he was required to prepare specific documentation –
including observation reports, an individualized professional
development plan and a final assessment letter – in connection
with his assignment, and to complete it within 10 weeks.
Ultimately, claimant's evaluation and those of the other peer
observers were used to assist school administrators in
determining whether a disciplinary proceeding should be brought
to remove the teacher under review.

      The sole issue presented here is whether substantial
evidence supports the Unemployment Insurance Appeal Board's
finding that claimant, and other similarly situated peer
observers, were employees of RMC. Initially, we note that the
existence of an employment relationship is a factual issue for
the Board to resolve, and its determination in this regard is
beyond judicial review if it is supported by substantial evidence
(see Matter of Empire State Towing & Recovery Assn., Inc.
[Commissioner of Labor], 15 NY3d 433, 437 [2010]; Matter of
Lobban [Precinct Security & Investigations, Inc.–Commissioner of
Labor], 131 AD3d 1294, 1294 [2015]). While no single factor is
determinative, where, as here, the services of teaching
professionals are involved, "the pertinent inquiry is 'whether
the purported employer retains control of important aspects of
the services performed'" (Matter of Wilner [Primary Stages Co.,
Inc.–Commissioner of Labor], 128 AD3d 1148, 1149 [2015], lv
dismissed 26 NY3d 955 [2015], quoting Matter of Piano School of
N.Y. City [Commissioner of Labor], 71 AD3d 1358, 1359 [2010]).

      Turning to the facts applicable to claimant and the other
peer observers, claimant was required as part of RMC's hiring
process to submit an application, undergo an interview and
provide references. Once hired and after signing the consultant
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agreement, he received six hours of training, was paid a hourly
rate set by RMC, was expected to work three to four hours per
week for a total of 36 weeks during the 10-week assignment and
submitted a voucher provided by RMC on the 15th of each month to
receive payment for hours worked. Notably, claimant was paid for
services rendered regardless of whether RMC received payment from
the client. Moreover, RMC's name appeared at the top of the
documents that claimant was required to prepare and it determined
their format. Furthermore, during the course of his assignment,
claimant interacted with RMC's project director who reviewed his
observation reports for comprehensiveness, clarity, spelling and
grammar. Any complaints about claimant's performance or that of
the other peer observers were directed to RMC, and it arranged
for a replacement if an assignment could not be completed. The
foregoing illustrates that there is substantial evidence that RMC
retained overall control over important aspects of claimant's
work to establish the existence of an employment relationship
(see Matter of Wilner [Primary Stages Co. Inc.–Commissioner of
Labor], 128 AD3d at 1149-11150; Matter of Stewart [ALM Partners
LLC–Commissioner of Labor], 118 AD3d 1198, 1199 [2014]).
Accordingly, we find no reason to disturb the Board's decisions.

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



     ORDERED that the decisions are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
