Thursday, January 23, 2014
Matter of John Lack Associates (Commissioner of Labor), ___A.D. 3d___ (3rd Dep't. Dec. 5, 2013), is an interesting decision. In applying the Right to Control test, the court concludes that an agency that hired waitresses is not their employer, reasoning:
John Lack provides its clients with individuals fitting the client's requirements for each particular event. The agency neither interviews nor screens the workers, other than to ensure that they have the necessary uniform and equipment. However, the workers generally provide their own uniform and equipment. Although the client may provide a uniform on occasion, John Lack does not. After being retained by a client, John Lack contacts individuals from its lists and explains the details and requirements of the available job. The individual is free to refuse a job and may do so, for example, if the pay rate offered is unacceptable. Notably, most of the waiters and bartenders accept work from other placement agencies. If the worker accepts the job offered by John Lack, the agency directs him or her to report to a representative of the client at the event. However, it is the client that instructs, controls and supervises the worker at the event. In this regard, the client explains the rules of conduct to the worker and, if a worker's performance is not satisfactory, the client will instruct the individual to leave or fire him or her from the job. There is no indication in the record that John Lack provides workers with any training.
With regard to payment, the client is responsible for tracking the number of hours worked by the waiter or bartender and then completes an event report and submits it to John Lack so that payment can be tendered to the worker. Although workers are paid by John Lack, their remuneration is based upon the rate of pay offered by the client to John Lack for each particular job. Additionally, on at least one occasion, when a worker was injured on a job, the client paid the worker's hospital bills. Under these circumstances, we are unable to conclude that substantial evidence exists in the record to support the Board's decision that John Lack exercises sufficient control over the workers to establish an employer-employee relationship (see Matter of Richins [Quick Change Artistry, LLC—Commissioner of Labor, 107 AD3d at 1344; Matter of Holleran [Jez Enters., Inc.—Commissioner of Labor], 98 AD3d at 757; Matter of Mulholland [Motherly Love Care—Commissioner of Labor], 258 AD2d 855, 758
Mitchell H. Rubinstein