The New York State Appellate Division, 3rd Dept. published three decisions on Thursday, December 9, 2021, determining whether an unemployment insurance claimant is an employee or an independent contractor.

Before we discuss the rulings, try to guess behind which door there is an independent contractor [there may be more than one independent contractor or none]:

Door #1: Photographer Researcher for a publishing company. This person was an employee before changing over to a contractor, working on an “as needed” basis. Did the exact same things he did before work on a contract basis.

Door #2: Licensed Architect who refers to himself as self-employed with no set work hours.

Door #3: Professional Actor paid hourly by an Acting School to help teach students the art of acting and directing.

Which is the independent contractor?

If you guessed, Doors #1 and #3, you win.

Door #1: In Matter of Levick v. Rosen Publishing Group, the Appellate Division reversed the Unemployment Insurance Appeals Board’s (UIAB) finding that a photograph researcher who worked on projects for a children’s book publishing company was not an employee because he only worked on a project-by-project basis. The court found the fact that the claimant was previously an employee, a distinction that weighed favorably for Rosen Publishing because after the employment status ended, the claimant could accept or reject any assignment.

Door #2: In Matter of Blomstrom v. Stephen H. Katz, the Third Department affirmed the...

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