Insurance company liable for additional contributions where financial advisor was found to be employee
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Friday, September 4, 2020

Insurance company liable for additional contributions where financial advisor was found to be employee

By Payroll and Entitlements Editorial Staff

Given the particular facts presented in this case regarding an insurance company's supervision and control over the claimant's work, the court rejected the employer’s contention that certain guidelines adopted by the Department of Labor “mandate a different result.” The claimant, a financial advisor, was provided a cubicle at the employer's office, the use of the company's receptionist and the ability to book a conference room, all at no charge to him. He also was given an in-house email address as well as letterhead and business cards bearing the agency's name and address. Additionally, he was given the opportunity to qualify for health/dental insurance and to participate in a matching 401(k) program. The claimant acknowledged that he was able to set his own schedule and to sell insurance products other than those offered by his employer; however, he also testified that he was required to meet with his managing director almost weekly. The DOL’s guidelines expressly provide that they are based on common-law standards for determining whether employer-employee relationships exist, and that they “emphasize that an individual is considered an independent contractor ‘only when free from control and direction in the performance of services.’” Thus, the insurance company was liable for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated (Matter of Thorndike, N.Y. Sup. Ct., App. Div., No. 528760, July 16, 2020).

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