In the Matter of Yoga Vida NYC, Inc., Appellant. Commissioner of Labor, Respondent.BriefN.Y.September 6, 2016 To Be Argued By: JAMES B. ASTRACHAN Time Requested: 15 Minutes APL-2014-00285 (App. Div. Third Dept. Index No. 518112) Court of Appeals STATE OF NEW YORK IN THE MATTER OF YOGA VIDA NYC, INC., Employer-Appellant, -AGAINST- COMMISSIONER OF LABOR OF THE STATE OF NEW YORK, Respondent. REPLY BRIEF FOR APPELLANT James B. Astrachan, Esq. Douglas M. Lightman, Esq. Christopher J. Lyon, Esq. LIGHTMAN LAW FIRM LLC ASTRACHAN GUNST THOMAS, P.C. 345 Seventh Ave., Floor 21 217 E. Redwood Street, Suite 2100 New York, NY 10001 Baltimore, MD 21202 (212) 643-0985 (410) 783-3526 Fax: (212) 643-0967 Fax: (410) 783-3530 Attorneys for Appellant June 22, 2015 i TABLE OF CONTENTS TABLE OF CONTENTS...........................................................................................i TABLE OF AUTHORITIES...................................................................................iii INTRODUCTION.....................................................................................................1 ARGUMENT.............................................................................................................2 I. YOGA VIDA DOES NOT HAVE CONTROL OVER IMPORTANT ASPECTS OF THE SERVICES PERFORMED BY ITS NON-STAFF INSTRUCTORS..............................................................................................2 A. Yoga Vida Does Not Exclusively Control the Fees Charged to Students or the Amounts Paid to Non-Staff Instructors...................................................................................................3 B. Yoga Vida Does Not Require Its Non-Staff Instructors To Attend Meetings.....................................................................................................5 C. Yoga Vida Permits Its Instructors To Work For Competing Companies and Studio...................................................................................................5 D. Yoga Vida Works With The Non-Staff Instructors To Establish The Dates, Times and Duration of the Classes They Teach.............................9 E. The Non-Staff Instructors Provide Their Own Materials, Pay For Their Own Insurance and Travel Expenses, and Receive No Fringe Benefits.........................................................................................11 F. Yoga Vida Does Not Supervise The Non-Staff Instructors Beyond Ensuring that they are Certified Yoga Instructors and, If Necessary, Protecting the Safety of Students.............................................................12 II. NO ONE FACTOR IS DETERMINATIVE IN AN ANALYSIS OF EMPLOYEE VERSUS INDEPENDENT CONTRACTOR STATUS .......................................................................................................................13 ii III. TAKEN TOGETHER, THE RELEVANT FACTORS LEAD TO A SINGLE CONCLUSION—THE BOARD’S DECISION IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE........................................15 CONCLUSION.......................................................................................................17 iii TABLE OF AUTHORITIES Cases 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176 (1978) .........................................................................................1, 2 Alexander v. FedEx Ground Package System, 765 F.3d 981 (9th Cir. 2014) .................................................................... 13, 14, 15 Battenkill Veterinary Equine P.C. v. Cangelos, 1 A.D.3d 856 (3d Dep't 2003) ................................................................................. 9 Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) ..............................................................................................13 In re Bedin, 257 A.D.2d 809 (3d Dep't 1999) ............................................................................. 6 Matter of Barone (Commissioner of Labor), 257 A.D.2d 950 (3d Dep't 1999) ............................................................................. 5 Matter of Clorfeine, 187 A.D.2d 840 (3d Dep't 1992) ............................................................ 3, 9, 11, 12 Matter of Concourse Opthalmology Assoc., 60 N.Y.2d 734 (1983) ................................................................................... passim Matter of D. Mulholland, 258 A.D.2d 855 (3d Dep't 1999) .............................................................. 15, 16, 17 Matter of Empire State Towing & Recovery Ass'n (Comm'r of Labor), 15 N.Y.3d 433 (2010) ............................................................................................. 2 Matter of Lambert, 18 A.D.3d 1049 (3d Dep't 2005) ............................................................................. 5 Matter of Martin (Crest Mainstream-Commissioner of Labor), 259 A.D.2d 824 (3d Dep't 1999) ............................................................................. 3 iv Matter of Mydland, 221 A.D.2d 747 (3d Dep't 1995) ................................................................... passim Matter of O'Toole (Biomet Marx & Diamond, Inc.—Commissioner of Labor), 13 A.D.3d 767 (3d Dep't 2004) ............................................................................... 6 Matter of Professional Career Ctr., 105 A.D.3d 1219 (3d Dep't 2013) .....................................................................3, 12 Matter of Spinnell (Commissioner of Labor), 300 A.D.2d 770 (3d Dep't 2002) ............................................................................. 7 Matter of Williams (Commissioner of Labor), 268 A.D.2d 621 (3d Dep't 2000) ............................................................................. 6 Sullivan Co., 289 N.Y. 110 (1942) ............................................................................................... 7 United States v. Silk, 331 U.S. 704 (1947) ................................................................................................ 8 Other Authorities Restatement of Agency § 220(2) .............................................................................13 1 INTRODUCTION Yoga Vida uses Staff and Non-Staff instructors at its two studios. The Non- Staff instructors at issue in this matter choose to teach classes at Yoga Vida in order to develop their own businesses as instructors, not to benefit Yoga Vida. The Non-Staff instructors teach at numerous yoga studios, including studios that compete with Yoga Vida, and they tell their students at the end of Yoga Vida classes where they will be teaching throughout the week. These Non-Staff instructors advertise on their own websites and some have their own business cards. These are not seafood factory workers, or delivery drivers, or people who move rental cars—these are entrepreneurs using Yoga Vida as a place to further their own careers. The Board’s determination should be overturned here for lack of substantial evidence because it misconstrued facts within the record and did not consider highly relevant evidence that was before it. These errors and omissions, when combined, lead to the conclusion that the Board’s determination is not supported by substantial evidence.1 Accordingly, the Appellate Division erred in affirming it, and this Court should reverse. 1 “[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 the proof as a premise, a conclusion or ultimate fact may be extracted reasonably—probatively and logically.” 300 Gramatan Ave. Assoc. v. 2 ARGUMENT The Commissioner contends that when a person engages in professional services, the test typically applied to determine whether that person is an employee or an independent contractor focuses on whether the hiring party has “control over important aspects of the services performed other than results or means.” (Respondent’s Brief (“RB”) at 32.) This “overall control” test has typically been applied to individuals like attorneys or doctors. Matter of Empire State Towing & Recovery Ass’n (Comm’r of Labor), 15 N.Y.3d 433, 437-438 (2010). Even assuming the test is properly applied to yoga instructors, the outcome in this case should be the same as if the “results produced and means used” test were applied.2 Under either rubric, the central issue is whether Yoga Vida exercises sufficient control over the Non-Staff instructors. I. YOGA VIDA DOES NOT HAVE CONTROL OVER IMPORTANT ASPECTS OF THE SERVICES PERFORMED BY ITS NON-STAFF INSTRUCTORS Many of the indicia of control considered in the professional services cases cited by the Commission overlap with those already addressed in Yoga Vida’s opening brief. Not every factor will be repeated here, but a few bear mentioning in State Div. of Human Rights, 45 N.Y.2d 176, 181 (1978). Incorrect facts do not constitute substantial evidence. Id. 2 The Appellate Division applied the traditional test of whether the employer “exercised control over the results produced or the means used to achieve those results” in this case. (A-7.) 3 order to clarify the record and to emphasize the Board’s error in this case. These factors include: (1) who establishes the fees charged to clients and the amount of money paid to the employee/independent contractor; (2) whether the individual is required to attend meetings organized by the company; (3) whether the individual is free to work for competitors; (4) who establishes the dates and times when the individual works; (5) whether the individual uses the company’s materials to perform his or her work; and (6) whether the company oversees the performance of the person’s work. See e.g., Matter of Clorfeine, 187 A.D.2d 840 (3d Dep’t 1992); Matter of Concourse Opthalmology Assoc., 60 N.Y.2d 734, 736 (1983); Matter of Professional Career Ctr., 105 A.D.3d 1219, 1220 (3d Dep’t 2013); Matter of Mydland, 221 A.D.2d 747, 747-748 (3d Dep’t 1995); Matter of Martin (Crest Mainstream-Commissioner of Labor), 259 A.D.2d 824, 825 (3d Dep’t 1999). (RB at 32, 33.) A. Yoga Vida Does Not Exclusively Control the Fees Charged to Students or the Amounts Paid to Non-Staff Instructors Matter of Mydland, cited by the Commissioner, involved a riding instructor who worked at a stable. When she began working, the stable gave her an 4 information sheet that established fees to be charged for her services, and out of those fees her compensation would be derived. 221 A.D.2d at 747.3 The stable collected the students’ fees and paid her a percentage of those fees. There was no indication that the percentage the instructor received was negotiable. Id. at 748. Here, on the other hand, the fees charged to the yoga students are not set in stone by Yoga Vida, they can be changed at the request of the Non-Staff yoga instructor. As Mike Patton testified at the ALJ hearing, “[T]here are plenty of circumstances where we engage an individual as a contractor and work with them to determine what fee to associate with that class.” (A-121.)4 Moreover, Non-Staff instructors typically negotiated their own individual contract for payment with Yoga Vida that takes one of several different forms. (A- 63.)5 For example, some Non-Staff instructors are paid a percentage of revenues generated by their classes; others are paid a set amount per class or per individual that attends the class. (A-60, 114.) As Mr. Patton testified, each contract is different (A-124) and the negotiations over compensation differ from person to 3 Similarly, in Matter of Concourse Ophthalmology Ass’n, 60 N.Y.2d at 736, the company set the fees charged to clients. 4 The Board disregarded this testimony and simply found that Yoga Vida sets the students’ fees. (A-14.) 5 The Board recognized that pay rates for the Non-Staff instructors were negotiated on a person by person basis. (A-13.) 5 person. (A-60.) The evidence is clear that the compensation paid to the Non-Staff instructors varies from person to person.6 B. Yoga Vida Does Not Require Its Non-Staff Instructors To Attend Meetings The riding instructor in Mydland was also required to attend bimonthly meetings that addressed instructional methods. 221 A.D. 2d at 747; see also Matter of Lambert, 18 A.D.3d 1049, 1050 (3d Dep’t 2005) (employer-employee relationship existed where company reserved the right to requires its salesperson to attend periodic meetings for the purpose of coordinating sales efforts). Unlike the riding instructor or the Staff instructors at Yoga Vida, the Non-Staff instructors are not required to attend meetings conducted by Yoga Vida’s management. (A- 115:9-20.)7 C. Yoga Vida Permits Its Instructors To Work For Competing Companies and Studios The Mydland Court relied upon the fact that the riding instructor only worked for one stable. Id. The ability to work only for single employer is often cited to support the existence of an employer-employee relationship. See also e.g., Matter of Barone (Commissioner of Labor), 257 A.D.2d 950 (3d Dep’t 1999) 6 Staff instructors, on the other hand, are paid a flat rate no matter who attends class. (A-113). 7 The Board should have considered this factor in its analysis but did not. (See A- 13-14.) 6 (employer-employee relationship exists where record established that person worked exclusively for Barone); Matter of Williams (Commissioner of Labor), 268 A.D.2d 621 (3d Dep’t 2000) (employer-employee relationship exists where no evidence presented that person was employed by anyone other than Williams, or that she had any indicia of self-employment, such as advertisements); In re Bedin, 257 A.D.2d 809, 811 (3d Dep’t 1999) (employer-employee relationship exists where person was not “free to do business” with anyone else); and Matter of O’Toole (Biomet Marx & Diamond, Inc.—Commissioner of Labor), 13 A.D.3d 767, 768 (3d Dep’t 2004) (employer-employee relationship exists where person was required to be available for company 24 hours a day, 7 days a week). Here, the evidence is clear that unlike the employees in these cases, the Non- Staff instructors are permitted to work at different locations and for competing employers.8 Mr. Patton testified the Non-Staff instructors are running their own business, teaching classes at all over Manhattan. (A-117.) For example, some of the Non-Staff instructors have private clients, some teach at three different studios, and some have corporate clients that ask them to teach classes at their corporate facilities. (A-117.) As Mr. Patton put it, “this is their business.” (A-117:10-11.) At the end of classes, some Non-Staff instructors tell the students where else they 8 The Board should have considered this critical factor in its analysis but did not. (See A-13-14.) 7 will be teaching that week or where they will be hosting a workshop.9 (A-100.) The Commissioner’s contention that the yoga students are “Yoga Vida’s clients” rather than the instructors’ clients lacks any support in the record. (RB at 30.) To the contrary, the evidence supports the conclusion that the students follow instructors that they like from facility to facility. (A-20.) Moreover, the Commissioner’s contention that Yoga Vida “exercises broad control over every facet of yoga instruction at its two locations” in order to protect its own “brand” is not supported by the record. (RB at 34.) Instead, the fact that Non-Staff instructors are free to work in direct competition with Yoga Vida demonstrates that Yoga Vida does not strive in any way to promote or protect its own “brand.” The Non-Staff instructor’s role at Yoga Vida is like that of the bookkeeper in Matter of Spinnell (Commissioner of Labor), 300 A.D.2d 770, 771 (3d Dep’t 2002). He worked in Spinnell’s legal office as a bookkeeper, but at the same time he worked as a legal secretary elsewhere and ran his own bookkeeping business. Id.; see also Matter of Sullivan Co., 289 N.Y. 110, 113 (1942) (salesmen who could engage in other occupations at the same time were considered independent 9 The one situation that Mr. Patton testified he does not welcome is when a Non- Staff instructors tells students that the following week, at the exact same time as the current class, he or she will be teaching down the road at another studio— thereby inviting the students to go to the other studio next week rather than returning to Yoga Vida. (A-101-102.) 8 contractors). The Non-Staff instructors work at Yoga Vida and run their own businesses from multiple other locations. As the Commissioner acknowledges, “an independent contractor is in business for herself, able to manage her own affairs and take advantage of ‘the opportunity for profit from sound management.’” (RB at 26, quoting United States v. Silk, 331 U.S. 704, 719 (1947)). That is exactly what the Non-Staff instructors are doing. They are in business for themselves, by choice. As Mr. Patton testified, “I mean they make an investment in their business—their promotional materials, their advertising. They’re promoting their business all over the place and we’re giving them a space to offer their business in every sense of it.” (A-119.) Many of the Non-Staff instructors have their own websites on which they advertise where they will be teaching, and have their own business cards. (A-158-177.) The Non-Staff instructors are largely transient, as a result of their own choosing. Working in several locations or for several competitors enables the independent contractors to deliberately grow their own businesses. As Mr. Patton testified: People that are independent contractors are, on a very short term, as-needed basis and there’s a high degree of rotation and in this industry specifically, we might’ve had 75 teachers over the last two years and might have a quarter of that right now because there’s just so many different people coming in and out and those are the people that we treat as—we want to continue to treat as independent contractors because they’re so transient…. 9 (A-128.) Yoga Vida is not trying to dodge its responsibilities as an employer, it is dealing in the most efficient and effective way it can with a population of talented yoga instructors who do not want to be employed by a single yoga studio, but instead want to grow their own individual practice at locations around Manhattan.10 D. Yoga Vida Works With The Non-Staff Instructors To Establish The Dates, Times and Duration of the Classes They Teach In Matter of Clorfeine, cited by the Commissioner, Open Center set the dates and times for the courses. 187 A.D.2d at 840. Similarly, in Claim of Mydland, the riding instructor was “expected to give riding lesson as scheduled by NSEC” (221 A.D.2d at 747), and in Matter of Concourse Ophthalmology Assoc., 60 N.Y.2d at 736, the company’s receptionist scheduled appointments for the ophthalmologists. 10 The Commissioner contends that Yoga Vida’s Staff instructors are permitted to teach elsewhere, and thus the ability for Non-Staff instructors to work elsewhere of no moment and should not be considered as a relevant factor in this analysis. (RB at 54.) A review of Mr. Patton’s testimony shows that the Staff instructors, unlike the Non-Staff instructors, enter into non-compete agreements. (A-116.) Those agreements, as with many such agreements, limit the types of work that the Staff instructor can do elsewhere based on the type of work they currently do for Yoga Vida, and based on the location of the other business. (A-116-117.) See e.g. Battenkill Veterinary Equine P.C. v. Cangelos, 1 A.D.3d 856, 857-858 (3d Dep’t 2003) (non-compete agreement upheld that prohibited former employee from practicing equine veterinary medicine, not all veterinary medicine, for three years within a 35-mile radius of the employer). 10 Here, Yoga Vida works with the Non-Staff instructors to determine a date and time for the class that they are able to teach.11 As Mr. Patton testified, “[t]he instructor determines when they’re available and they determine what schedule they’d like to teach based on their previous obligations or based on their current availability.” (A-69.) The schedule for the week is established based on the availability of the instructors and the limited number of rooms in which the classes can be taught. (A-72-73.) Yoga Vida tries to accommodate the times and days that the instructors request, including the duration of the class the instructor wants, but if it cannot, the studio will offer an available time to the instructor and he or she will decide whether to accept it or not. (A-102-103.) The Non-Staff instructors are not required to teach their classes at a given time. It is their choice. Because there are limited rooms and times available, not every Non-Staff instructor’s selected date, time, and duration will be available, but to the extent it is possible, Yoga Vida accommodates their requests. However, once the contract with the instructor is signed (which typically last anywhere from two weeks to a month), the date and time for the class is set. (A-84, 118.) 11 The Board ignored the role that the Non-Staff instructors play in creating their own schedules and simply stated that Yoga Vida “established a master schedule” for the classes. (A-14.) It also incorrectly determined that Yoga Vida “set the duration of the classes, either one or two hours.” (A-14.) The record demonstrates that the Non-Staff instructors told Mr. Patton how long their classes should last. (A-102-103.) 11 E. The Non-Staff Instructors Provide Their Own Materials, Pay For Their Own Insurance and Travel Expenses, and Receive No Fringe Benefits In Matter of Clorfeine, the teachers used at least some of Open Center’s equipment and supplies. 187 A.D.2d at 840. And in Matter of Concourse Ophthalmology Ass’n, 60 N.Y.2d at 737, the ophthalmologists used the company’s equipment. Here, Yoga Vida provides the space for people to practice yoga and it provides a mat for any student who does not bring his or her own. (A-88.) The Non-Staff instructor is responsible for bringing all of his or her own materials, for planning his or her own class, for selecting and bringing his or her own music and for bringing anything else that will contribute to the class. (A-88.) They are also responsible for his or her own licensing and all insurance. (A-108.) As Mr. Patton testified, “All their licensing, all of their insurance, all of …Anything they need to offer their business and instruct yoga is their responsibility.” (A-108.) Additionally, while Staff instructors are given merchandise bearing the Yoga Vida name, Non-Staff instructors must pay for those materials. (A-116.) Non- Staff instructors are also responsible for all travel expenses and business costs, while Yoga Vida pays those expenses for its Staff instructors. (A-116.) 12 F. Yoga Vida Does Not Supervise The Non-Staff Instructors Beyond Ensuring that they are Certified Yoga Instructors and, If Necessary, Protecting the Safety of Students In Matter of Professional Career Ctr, Inc., (Commissioner of Labor), 105 A.D.3d 1219, 1220 (3d Dep’t 2013), also cited by the Commissioner, the Career Center oversaw the quality of the instructors based on student evaluations, and also maintained responsibility for ensuring that the curriculum met state standards. In Matter of Clorfeine, 187 A.D.2d at 840, the teachers had to submit course descriptions to Open Center, which it then edited. In Matter of Mydland, 221 A.D.2d at 747, the riding instructor was required to attend bimonthly meetings which dealt with, inter alia, how the instructors should be teaching their students. Here, Yoga Vida provides a location for the Non-Staff instructors to teach yoga and verifies that these individuals are certified to teach before it enters into contracts for services. (A-143-144.) With respect to the classes themselves, the Non-Staff instructors are free to design the class with no supervision from Yoga Vida. (A-106-107.) The only time Yoga Vida may discuss the content of a class with a Non-Staff instruction is when there have been complaints from students regarding the safety of the class. (A-83-85.) There is no set quality control system that monitors the Non-Staff instructors’ work, as with the student evaluations in Matter of Professional Career Ctr, Inc., (Commissioner of Labor), 105 A.D.3d at 1220. There is no clearance process for the content of the class, as in Matter of 13 Clorfeine, 187 A.D.2d at 840. And there are no regularly scheduled meetings to discuss teaching methodologies, as in Matter of Mydland, 221 A.D.2d at 747. II. No One Factor Is Determinative In An Analysis of Employee Versus Independent Contractor Status The Commissioner places great emphasis on the assertion that the Non-Staff instructors are “integral” to Yoga Vida’s “core” business. (RB at 24-31.) Whether the work performed is part of the regular business of the hiring party is but one factor of many that may be considered by the Board. Individual indicia of control should be considered together and “no one factor is determinative.” Matter of Concourse Ophthalmology Ass’n, 60 N.Y.2d at 736; see also Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751 (1989) (setting forth a nonexhaustive list of twelve factors stemming from the Restatement of Agency § 220(2) for determining whether a hired party is an employee, and noting that “[n]o one of these factors is determinative.”) This single indicia of control should not be weighted more heavily than others. Additionally, the case the Commissioner chose to focus upon to make the “integral” or “core function” argument, Alexander v. FedEx Ground Package System, 765 F.3d 981, 995 (2014), is entirely distinguishable based on the level of control FedEx exerted over the drivers. The FedEx drivers were required to wear FedEx uniforms, drive FedEx-approved vehicles, and even “groom” themselves in accordance with FedEx appearance standards. Id. at 984. FedEx told the drivers 14 what packages to deliver, on what days, and at what times. Id. It assigned each driver a specific service area. Id. at 990. The drivers worked for FedEx between 9.5 and 11 hours a day, effectively preventing them from working elsewhere. Id. at 985. FedEx also trained its drivers on how best to perform their job and how to interact with customers. Id. Managers could conduct up to four ride-along performance evaluations each year, which includes oversight of such minute details as whether, during a delivery, the driver “places [his or her] keys on [the] pinky finger of [his or her] non-writing hand.” Id. The drivers were hired for a term of one, two or three years with an automatic renewal for successive one-year terms if neither party provides notice of intent not to renew. Id. at 986. The Ninth Circuit applied California’s “right to control” test to these facts. Id. at 988. By the time it reached the factor of “whether or not the work is a part of the regular business of the principal” (id. at 989), the decision had already been made. The Ninth Circuit’s conclusion was driven by its analysis of FedEx’s right to control the manner and means of the drivers’ services. Specifically, it stated that “[i]n light of the powerful evidence of FedEx’s right to control the manner in which drivers perform their work, none of the remaining right-to control factors [which included whether or not the work is a part of the regular business of the 15 principal] sufficiently favors FedEx to allow a holding that plaintiffs are independent contractors.” Id. at 994.12 As explained above, Yoga Vida did not even come close to the level of control exerted by FedEx. The fact that Yoga Vida ran a yoga studio and the Non- Staff instructors provided yoga instruction is not enough to tip the scale here. III. Taken Together, The Relevant Factors Lead To A Single Conclusion— The Board’s Decision Is Not Supported By Substantial Evidence. The Board’s decision should be reviewed based on the totality of the facts presented, not based on isolated analyses of the individual factors. Matter of D. Mulholland, 258 A.D.2d 855, 856-857 (3d Dep’t 1999) (“Under these circumstances, we are unable to conclude that substantial evidence exists in the record to support the Board’s decision….”). Considered as a whole, the facts here, as in Matter of D. Mulholland, mandate a reversal. In Matter of D. Mulholland, Motherly Love Care Inc. (“Motherly Love”) solicited pediatric nurses for critically ill children through newspaper advertisements. Id. at 855. The nurses were paid on a weekly schedule per attendance sheets submitted to Motherly Love and signed by the parents of the child. Id. at 855-856. The nurses were free to refuse an offered placement, just as 12 Additionally, the quotations relied upon by the Commissioner (RB at 29) do not come from the Ninth Circuit’s discussion of this factor, but from its discussion of other factors. See id. at 995. 16 the Non-Staff instructors here are free to reject any teaching time slots if they so choose. Id. at 856. The nurses could work for other agencies, just as the Non-Staff instructors can work for other competitive studios or for other companies. Id. They could even independently solicit work from the very families that Motherly Love placed them with, just as the Non-Staff instructors can openly ask the yoga students to follow them to other venues for yoga classes. Id. Their hourly rate was negotiable, just like the Non-Staff instructors’ rates. Id. The nurses were responsible for carrying their own insurance, just as the Non- Staff instructors are. Id. The nurses were responsible for finding a replacement if they could not work, just like the Non-Staff instructors. Id. Additionally, Motherly Love did not oversee the details of the care to be provided by the nurses, just as the Non-Staff instructors come up with the content of their own yoga classes.13 Id. Twice a year Motherly Love was required by the New York Department of Health to evaluate the nurses it placed. Id. at 856. That oversight was not considered an exercise of control over the nurse or the nature of their work because Motherly Love simply evaluated the performance. The parents of the child would 13 The one aspect of the classes that Yoga Vida did require is that there be a warm up at the beginning of each class and a cool down at the end. These are standard aspects of yoga classes designed for student safety. (A-31.) 17 decide whether to terminate the nurse’s services. Id. Here, Yoga Vida does not engage in evaluation of the Non-Staff instructors at all, unless there is a complaint from a student about the safety of the class. (A-83-85.) If such a complaint is made consistently about a Non-Staff instructor, Yoga Vida will have someone take the class and see if the complaint raised by the students is accurate. (A-84-85.) If the problem is related to safety, then Yoga Vida would have a discussion with the instructor to clarify that they may not be invited back after the end of their current contract term. (A-85.) But if the problems the students are experiencing stem from the instructor’s approach or curriculum, then Yoga Vida will not ask them to change their instruction. (A-85.) Like Motherly Love, Yoga Vida does not engage in correction of the work performed by the Non-Staff instructors. At most, it will not ask them back at the end of their contract, just as Motherly Love could choose not to offer a new position to a nurse who performed poorly on his or her evaluation. Simply put, the record here, taken as a whole demonstrates that the Board’s decision is not supported by substantial evidence and should be reversed, as was the Board’s decision in Matter of D. Mulholland, 258 A.D.2d at 857. CONCLUSION For the foregoing reasons, the Appellate Division’s decision should be reversed. 18 Respectfully submitted, Dated: June 22, 2015 /s/ James B. Astrachan, Esq. Christopher J. Lyon, Esq. ASTRACHAN GUNST THOMAS, P.C. 217 E. Redwood Street, 21st Fl. Baltimore, MD 21202 (410) 783-3526 Fax: (410) 783-3530 Douglas M. Lightman, Esq. LIGHTMAN LAW FIRM LLC 345 Seventh Ave., Floor 21 New York, NY 10001 (212) 643-0985 Fax: (212) 643-0967 Attorneys for Appellant