Is a “peer observer,” hired to validate a teacher’s ineffective rating, an employee for unemployment insurance purposes?

N.B. While this case is technically outside the coverage of EdLawFaqs it is included for the rare look into employment practices of ineffective rating validators.

“RMC Research Corporation, an educational research firm, contracted with the New York City Department of Education to 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 claim ant, and other similarly situated peer observers, were employees of RMC.

“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 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.”

135 A.D.3d 1268 (2016), 23 N.Y.S.3d 736, 2016 NY Slip Op 00561, In the Matter of the Claim of MICHAEL D. STRAUSS, Respondent. RMC RESEARCH CORPORATION, Appellant; COMMISSIONER OF LABOR, Respondent. 520636. Appellate Division of the Supreme Court of New York, Third Department. Decided January 28, 2016.

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