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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 130
In the Matter of Yoga Vida NYC,
Inc.,
            Appellant.
Commissioner of Labor,
            Respondent.




             Elizabeth A. Harlan, for appellant.
             Valerie Figueredo, for respondent.
             Legal Aid Society, amicus curiae.




MEMORANDUM:
             The order of the Appellate Division should be reversed,
with costs, and the matter remitted to that court with directions
to remand to respondent for further proceedings in accordance
with this memorandum.
             Yoga Vida NYC, Inc. operates a yoga studio in
Manhattan.    It offers classes taught by both staff instructors

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and non-staff instructors, and classifies the latter as
independent contractors.   In May 2010, the Commissioner of Labor
issued a determination that Yoga Vida was liable for additional
unemployment contributions, effective October 1, 2009, based on
its finding that the non-staff instructors are employees.    Yoga
Vida disputed that determination.   A hearing was held before an
Administrative Law Judge (ALJ), who sustained Yoga Vida's
objection, concluded that the non-staff instructors are
independent contractors and overruled the determination.     The
Commissioner appealed the ALJ's decision to the Unemployment
Insurance Appeal Board.    The Board overruled Yoga Vida's
objection, reversed the decision of the ALJ, and sustained the
Commissioner's initial determination that Yoga Vida is liable for
additional unemployment contributions.   Yoga Vida appealed to the
Appellate Division, which affirmed the determination of the
Appeal Board, holding that "[o]verall, despite the existence of
evidence that could result in a contrary result, the record
contains substantial evidence to support the Board's decision
that Yoga Vida had sufficient control over the instructors' work,
thereby allowing for a finding of an employer-employee
relationship" (119 AD3d 1314, 1315 [3d Dept 2014]).
          "[S]ubstantial evidence consists of proof within the
whole record of such quality and quantity as to generate
conviction in and persuade a fair and detached fact finder that,
from that proof as a premise, a conclusion of ultimate fact may


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be extracted reasonably -- probatively and logically" (300
Gramatan Ave. Assoc. v State of Div. of Human Rights, 45 NY2d
176, 181 [1978]).   Here, because the record as a whole does not
demonstrate "that the employer exercises control over the results
produced and the means used to achieve the results" (Matter of
Hertz Corp. [Commissioner of Labor], 2 NY3d 733, 735 [2004]
[internal citation omitted]), the Board's determination that the
company exercised sufficient direction, supervision and control
over the instructors to demonstrate an employment relationship is
unsupported by substantial evidence.
           The non-staff instructors make their own schedules and
choose how they are paid (either hourly or on a percentage
basis).   Unlike staff instructors, who are paid regardless of
whether anyone attends a class, the non-staff instructors are
paid only if a certain number of students attend their classes.
Additionally, in contrast to the staff instructors, who cannot
work for competitor studios within certain geographical areas,
the studio does not place any restrictions on where the non-staff
teachers can teach, and the instructors are free to inform Yoga
Vida students of classes they will teach at other locations so
the students can follow them to another studio.   Furthermore,
only staff instructors, as distinct from non-staff instructors,
are required to attend meetings or receive training.
           The proof of incidental control relied upon by the
Board, including that Yoga Vida inquired if the instructors had


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proper licenses, published the master schedule on its web site,
and provided the space for the classes, does not support the
conclusion that the instructors are employees.   Similarly, in
this context, the evidence cited by the dissent, including that
Yoga Vida generally determines what fee is charged and collects
the fee directly from the students, and provides a substitute
instructor if the non-staff instructor is unable to teach a class
and cannot find a substitute, does not supply sufficient indicia
of control over the instructors.   Furthermore, that Yoga Vida
received feedback about the instructors from the students does
not support the Board's conclusion. "The requirement that the
work be done properly is a condition just as readily required of
an independent contractor as of an employee and not conclusive as
to either" (Matter of Hertz Corp., 2 NY3d at 735 [internal
citation and quotation marks omitted]).




                              - 4 -
Matter of Yoga Vida, NYC, Inc. v Commissioner of Labor of the
State of New York
No. 130




FAHEY, J. (dissenting):
          I disagree with the majority's conclusion that the
determination of the Unemployment Insurance Appeal Board (the
Board) is not supported by substantial evidence.   Whether an
employer-employee relationship exists "necessarily is a question
of fact" (Matter of Villa Maria Inst. of Music [Ross], 54 NY2d
691, 692 [1981]; see Matter of Di Martino [Buffalo Courier
Express Co. -- Ross], 59 NY2d 638, 641 [1983]).    The Board must
determine whether the employer exercised control over the results
produced or the means used to achieve the results, with control
over the means being more important (see Matter of Empire State
Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d
433, 437 [2010]).   Nevertheless, "no one factor is determinative"
(Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734,
736 [1983]).   We have stated that "the determination of the
appeal board, if supported by substantial evidence on the record
as a whole, is beyond further judicial review even though there
is evidence in the record that would have supported a contrary
conclusion" (id. [emphasis added]; see Matter of MNORX, Inc.
[Ross], 46 NY2d 985, 986 [1979]).
          The majority relies on the evidence in the record


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supporting a determination that Yoga Vida's non-staff yoga
instructors were independent contractors in concluding that the
substantial evidence standard was not met (see majority op at 3).
Yet the majority ignores the evidence in the record that does
support the Board's determination that the non-staff instructors
were employees.    For example, there is evidence in the record
that Yoga Vida generally recruits its clients, determines what
fee to charge for its classes, and collects that fee directly
from the students attending the classes.   Once Yoga Vida
determines the class schedule and posts that schedule on its
website, the non-staff yoga instructors are not free to
unilaterally alter the time or length of the class, the type of
class taught, or the difficulty level, and it is Yoga Vida that
sets which classes will be taught and when.   The non-staff
instructors are responsible for finding a suitable substitute
instructor if they are unable to teach their scheduled class, and
if the non-staff instructor cannot find a suitable replacement,
Yoga Vida will provide its own substitute.    Non-staff instructors
are required to notify Yoga Vida of any substitution so that it
can update its schedule, and Yoga Vida considers whether a non-
staff instructor frequently has a substitute teach his or her
class in determining whether to continue its relationship with
that instructor.   Furthermore, although non-staff instructors are
free to tell their students about other locations at which they
teach, Yoga Vida considers whether a non-staff instructor has


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advertised for a class directly conflicting with a Yoga Vida
class in determining whether to continue its relationship with
that instructor.
          In summary, the majority has examined the evidence
before the Board and concluded that the evidence weighs more
heavily in favor of a conclusion that the non-staff instructors
are independent contractors.   It is the role of the Board,
however, and not this Court, to weigh the factual evidence and
arrive at a conclusion (see Villa Maria Inst. of Music, 54 NY2d
at 693; MNORX, Inc., 46 NY2d at 986).    If the evidence
"reasonably supports the [B]oard's choice, we may not interpose
our judgment to reach a contrary conclusion" (MNORX, Inc., 46
NY2d at 986).   We have described substantial evidence as "[m]ore
than seeming or imaginary" but "less than a preponderance of the
evidence" (300 Gramatan Ave. Assoc. v State Div. of Human Rights,
45 NY2d 176, 180 [1978]).   We have further stated that a
"practical test" for determining whether substantial evidence
exists is to "measur[e] the evidence against the standard of
sufficiency such as to require a court to submit it as a question
of fact to a jury" (id. at 181).
          Here, the evidence reasonably supports the Board's
conclusion that the non-staff instructors are Yoga Vida's
employees, "even though there is evidence in the record that
would have supported a contrary conclusion" (Concourse
Ophthalmology Assoc., 60 NY2d at 736).    In interposing its own


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judgment for that of the Board, the majority has disregarded the
substantial evidence standard of review and erroneously denied
the non-staff instructors employment benefits to which the Board
determined they were entitled.    I respectfully dissent.
*   *   *   *   *   *   *   *     *      *   *   *   *   *   *    *   *
Order reversed, with costs, and matter remitted to the Appellate
Division, Third Department, with directions to remand to
respondent Commissioner of Labor for further proceedings in
accordance with the memorandum herein. Chief Judge DiFiore and
Judges Pigott, Abdus-Salaam and Garcia concur. Judge Fahey
dissents and votes to affirm in an opinion in which Judge Rivera
concurs. Judge Stein took no part.

Decided October 25, 2016




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