Sam Hargrove v. Sleepy's, LLC (072742) , 220 N.J. 289 ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Sam Hargrove, et. al. v. Sleepy’s, LLC (A-70-12) (072742)
Argued March 17, 2014 -- Decided January 14, 2015
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court considers a question of law certified and submitted by the United States Court of
Appeals for the Third Circuit pursuant to Rule 2:12A-1. Specifically, the Court decides which test should be applied
under New Jersey law to determine whether a plaintiff is an employee or an independent contractor for purposes of
resolving a wage-payment or wage-and-hour claim.
Plaintiffs Sam Hargrove, Andre Hall, and Marco Eusebio deliver mattresses ordered by customers from
defendant Sleepy’s, LLC. Plaintiffs contend that they suffered various financial and non-financial losses as a result
of defendant’s misclassification of them as independent contractors, rather than employees. Plaintiffs each signed
an Independent Drive Agreement, which they assert was a ruse by defendant to avoid payment of employee benefits.
They contend that the misclassification violates state wage laws.
The question of whether plaintiffs are employees or independent contractors was submitted to the United
States District Court for the District of New Jersey on cross motions for summary judgment. That court, applying
the factors to be considered in defining an employee under the Employment Retirement Income Security Act
(ERISA), held that the undisputed facts demonstrated that plaintiffs were independent contractors.
Plaintiffs filed a notice of appeal. Following oral argument, the Court of Appeals filed a petition with this
Court seeking to certify a question of law pursuant to Rule 2:12A-1. The Court asked: Under New Jersey law,
which test should a court apply to determine a plaintiff’s employment status for purposes of the New Jersey Wage
Payment Law (WPL), N.J.S.A. 34:11-4.1 to -4.14, and the New Jersey Wage and Hour Law (WHL), N.J.S.A. 34:11-
56a to -56a38? This Court granted the petition. 214 N.J. 499 (2013).
HELD: The “ABC” test derived from the New Jersey Unemployment Compensation Act, N.J.S.A. 43:21-19(i)(6),
governs whether a plaintiff is an employee or an independent contractor for purposes of resolving a wage-payment
or wage-and-hour claim.
1. The issue presented to this Court is a question of law requiring the interpretation of two statutes. Acknowledging
that deference is afforded to the interpretation of the Department of Labor (DOL), the agency charged with applying
and enforcing the WPL and the WHL, the Court’s inquiry begins with the plain language of each statutory
provision. If the Legislature’s intent is clear from this language and the context of the provision within the statute,
the law is applied as written, with guidance from the legislative objectives of the statute. When the statutory
language is ambiguous, leads to a result inconsistent with any legitimate public policy objective, or is at odds with a
general statutory scheme, the Court turns to extrinsic tools to discern legislative intent. (pp. 10-12)
2. The WPL, N.J.S.A. 34:11-4.1 to -4.14, governs the time and mode of payment of wages due to employees. Since
it is a remedial statute and should be liberally construed, the Court, when considering its scope and application, is
mindful of the need to further its remedial purpose. The WPL defines an “employee” as “any person suffered or
permitted to work by an employer, except that independent contractors and subcontractors shall not be considered
employees.” N.J.S.A. 34:11-4.1(b). Although neither the text of the WPL nor its implementing regulations offers
any guidance as to the distinction between an employee and an independent contractor, the DOL has applied the test
utilized for independent contractor determinations under the WHL to the WPL as well. (pp. 13-15)
1
3. The WHL, N.J.S.A. 34:11-56a to -56a38, is designed to protect employees from unfair wages and excessive
hours, establishing a minimum wage and overtime rate for certain employees. It does not prescribe the minimum
wage or overtime rate payable to independent contractors. The WHL defines “employ” as “to suffer or to permit to
work,” N.J.S.A. 34:11-56a1(f), and “employee” as “any individual employed by an employer,” N.J.S.A. 34:11-
56a1(h). “Employer” includes “any individual, partnership, association, corporation, or any person or group of
persons acting directly or indirectly in the interest of an employer in relation to an employee.” N.J.S.A. 34:11-
56a1(g). The WHL’s implementing regulations, adopted by the DOL, provide that the criteria identified in N.J.S.A.
43:21-19(i)(6)(A)-(C) of the Unemployment Compensation Act will be used to determine whether an individual is
an employee or independent contractor. This test is commonly referred to as the “ABC” test. It presumes that an
individual is an employee unless an employer can show that: (1) the employer neither exercised control over the
worker, nor had the ability to exercise control in terms of the completion of the work; (2) the services provided were
either outside the usual course of business or performed outside of all the places of business of the enterprise; and
(3) the individual has a profession that will plainly persist despite termination of the challenged relationship. Failure
to satisfy any one of these three criteria results in an “employment” classification. (pp. 15-19)
4. The dispute here is grounded in the failure of the text of the WPL and its implementing regulations to, like the
WHL, prescribe a standard to guide the distinction between an employee and an independent contractor. Of the
various tests proposed by the parties, the common law “right to control test” is the narrowest, focusing on whether
an individual’s actions were so controlled by a superior as to render the individual an employee. It is ultimately a
totality-of-the-circumstances evaluation, requiring courts to consider factors such as the skill required, the location
of the work, and the extent of the worker’s discretion over when and how long to work. The “right to control” test is
the de facto test that is implemented when the employment relationship is not defined by legislation. The hybrid test
is derived from tests refined and established in case law over time and arose from the Court’s evaluation of the
employment status of a plaintiff seeking the protection of the Conscientious Employee Protection Act (CEPA) or
other remedial legislation. In such cases, the hybrid test requires that courts look primarily to three factors to
determine status: (1) employer control; (2) the worker’s economic dependence on the work relationship; and (3) the
degree to which there has been a functional integration of the employer’s business with that of the worker. Finally,
the “economic realities” test arose under the Fair Labor Standards Act (FLSA), 29 U.S.C.A. §§ 201-19, which
contains the broadest definition of “employee” among any social legislation statutes: “Any individual employed by
an employer.” 29 U.S.C.A. § 203(e)(1). In light of this expansive definition, federal courts seeking to determine an
individual’s employment status adopted a totality-of-the-circumstances standard that determines whether, as a matter
of economic reality, the individuals are dependent upon the business they serve. In making this determination,
courts will consider the degree of the employer’s control over the work, the worker’s opportunity for profit or loss,
the worker’s investment in equipment or materials or employment of helpers, any special skills required, the degree
of permanence of the working relationship, and whether the service rendered is an integral part of the employer’s
business. (pp. 19-28)
5. Regarding which test should be applied to determine, under the WHL and WPL, whether a worker is an
employee or independent contractor, examination of the plain language of the relevant provisions and implementing
regulations leads to the conclusion that the same test or standard should be applied under both statutes. Since no
good reason was proffered to depart from the standard adopted by the DOL to guide employment status
determinations or to disregard the long-standing practice of treating both statutory schemes in tandem, the Court
holds that any employment-status dispute arising under the WPL and WHL should be resolved by utilizing the
“ABC” test set forth in N.J.S.A. 43:21-19(i)(6)(A)-(C). This conclusion is supported by the similarities in the
statutes’ definitions of “employ” or “employee,” as well as the similar purpose of both statutes. (pp. 28-30)
6. Although the FLSA also uses similar language in its relevant definitions, the Court discerns no reason to depart
from the test adopted by the DOL in the WHL’s implementing regulations. The “ABC” test provides more
predictability and may cast a wider net than the FLSA “economic realities” test. The latter test is guided by six
criteria, none of which is determinative. Instead, the test contemplates a qualitative analysis of each case, which
may yield a different result from case to case. By contrast, under the “ABC” test, classification as an independent
contractor requires that the employer demonstrate that the retained individual satisfies all three criteria. This fosters
the provision of greater income security for workers, which is the express purpose of both the WPL and the WHL.
For the same reasons, the Court rejects the common law “right to control” test, which was designed for utilization in
2
tort cases and is incompatible with the legislative purpose of insuring income security to wage-earners. Finally,
although the hybrid test focuses on three factors that are similar to the “ABC” test, it is not limited to those factors
and is applied on a case-by-case basis in the context of legislation that is designed to reach even those who are not
traditionally considered employees under the common law “right to control” test. (pp. 30-35)
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, and
FERNANDEZ-VINA join in JUDGE CUFF’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-70 September Term 2012
072742
SAM HARGROVE, ANDRE HALL and
MARCO EUSEBIO,
Plaintiffs-Appellants,
v.
SLEEPY’S, LLC,
Defendant-Respondent,
v.
I STEALTH, EUSEBIO’S TRUCKING
CORP., and CURVA TRUCKING,
LLC,
Third-Party Defendants.
Argued March 17, 2014 – Decided January 14, 2015
On certification of question of law from the
United States Court of Appeals for the Third
Circuit.
Anthony L. Marchetti, Jr., and Harold L.
Lichten, a member of the Massachusetts bar,
argued the cause for appellants (Marchetti
Law, attorney).
Matthew J. Hank, a member of the
Pennsylvania bar, argued the cause for
respondent (Littler Mendelson, attorneys;
Mr. Hank, Kimberly J. Gost, Elizabeth Tempio
Clement, and Holly E. Rich, on the briefs).
Donna S. Arons, Deputy Attorney General,
argued the cause for amicus curiae
Department of Labor and Workforce
Development (John J. Hoffman, Acting
Attorney General of New Jersey, attorney;
1
Melissa H. Raksa, Assistant Attorney
General, of counsel).
Melville D. Miller, Jr., President, argued
the cause for amicus curiae Legal Services
of New Jersey (Mr. Miller, attorney; Mr.
Miller, Keith G. Talbot, Akil S. Roper, and
Sarah S. Hymowitz, on the brief).
David A. Tykulsker submitted a brief on
behalf of amicus curiae International
Brotherhood of Teamsters (David Tykulsker &
Associates, attorneys).
Richard M. Schall and Bennet D. Zurofsky
submitted a brief on behalf of amici curiae
National Employment Lawyers Association of
New Jersey, New Jersey Industrial Union
Council, and National Employment Law Project
(Schall & Barasch, attorneys).
Richard M. Hluchan submitted a brief on
behalf of amicus curiae National Federation
of Independent Business Small Business Legal
Center (Hyland Levin, attorneys; Mr. Hluchan
and Mark N. Suprenant, on the brief).
Denise M. Keyser submitted a brief on behalf
of amicus curiae Academy of New Jersey
Management Attorneys (Ballard Spahr,
attorneys; Ms. Keyser and Amy L. Bashore, on
the brief).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
This matter presents a question of law certified and
submitted by the United States Court of Appeals for the Third
Circuit pursuant to Rule 2:12A-1. We have been asked which test
a court should apply under New Jersey law to determine an
2
employee’s status for purposes of the Wage Payment Law (WPL),
N.J.S.A. 34:11-4.1 to -4.14, and the Wage and Hour Law (WHL),
N.J.S.A. 34:11-56a to -56a38. We conclude that the “ABC” test
derived from the New Jersey Unemployment Compensation Act,
N.J.S.A. 43:21-19(i)(6), governs whether a plaintiff is an
employee or independent contractor for purposes of resolving a
wage-payment or wage-and-hour claim.
I.
Plaintiffs Sam Hargrove, Andre Hall, and Marco Eusebio
(collectively plaintiffs) deliver mattresses ordered by
customers from defendant Sleepy’s, LLC. Plaintiffs assert that
they are employees of Sleepy’s, that Sleepy’s miscategorized
them as independent contractors, and that such misclassification
caused various financial and non-financial losses to them.
Plaintiffs assert that the Independent Driver Agreement signed
by each of them was a ruse to avoid payment of employee
benefits, such as health insurance, deferred compensation
benefits, and medical or family leave. They allege that the
misclassification violates state wage laws.
The issue of whether plaintiffs are employees or
independent contractors was submitted to the United States
District Court for the District of New Jersey on cross motions
for summary judgment. United States District Judge Peter
3
Sheridan held that the undisputed facts demonstrated that
plaintiffs were independent contractors. The district court
relied on the factors identified in Nationwide Mutual v. Darden,
503 U.S. 318, 112 S. Ct. 1344, 117 L. Ed. 2d 581 (1992), an
opinion that identified the factors to be considered in defining
an employee under the Employment Retirement Income Security Act
(ERISA), 29 U.S.C.A. §§ 1001-1461.
Plaintiffs filed a notice of appeal. Following oral
argument, the Court of Appeals filed a petition with this Court
seeking to certify a question of law pursuant to Rule 2:12A-1.
The Court of Appeals posed the following question: “Under New
Jersey law, which test should a court apply to determine a
plaintiff’s employment status for purposes of the New Jersey
Wage Payment Law, N.J.S.A. []34:11-4.1, et seq., and the New
Jersey Wage and Hour Law, N.J.S.A. []34:11-56a, et seq.?” This
Court granted the petition. 214 N.J. 499 (2013).
II.
A.
Plaintiffs argue that a single test should apply to
determine employment status. They emphasize that
misclassification of employees as independent contractors
creates significant societal costs due to billions of dollars in
lost revenue to state and federal governments. Plaintiffs
4
advance three alternative tests that might control the
resolution of the central issue in the case. They contend that
this Court should conclude “at the very least” that the hybrid
“relative nature of the work” test set forth in D’Annunzio v.
Prudential Insurance Co. of America, 192 N.J. 110 (2007), should
be adopted for purposes of determining employment status under
this State’s wage laws. In the alternative, plaintiffs argue
that this Court should adopt the broad “ABC” test followed by
the New Jersey Department of Labor (DOL) to interpret and apply
the definitions contained in the WHL to resolve WHL and WPL
claims. If this Court concludes that neither the hybrid
“relative nature of the work” test nor the “ABC” test governs,
plaintiffs urge application of the “economic realities” test as
under the Fair Labor Standards Act (FLSA), 29 U.S.C.A. §§ 201-
19. Plaintiffs urge that in no event should this Court conclude
that the common law “right to control” test applies. They
contend that the common law test was designed to determine
whether a master was liable to third parties for the negligent
acts of an agent and was never intended to protect or address
the financial security of employees.
B.
Defendant urges the adoption of a two-tiered analysis for
determining employee status under the WPL. First, the plaintiff
5
should be required to prove that the defendant is contractually
obligated to pay wages to him or her. If that prong is
established, a court should proceed to determine whether that
contract rendered the plaintiff an employee or independent
contractor. According to defendant, the second prong should be
analyzed in accordance with the “control” test derived from the
Restatement (Second) of Agency § 220(2) (1958). Defendant
emphasizes that this test existed at the time of adoption of the
WPL and that the courts of this State have long used this test
to determine whether an individual was an independent
contractor. Defendant reasons that this test likely informed
the Legislature when it drafted and adopted the WPL.
Defendant urges this Court not to decide the governing test
for determining employee status under the WHL because plaintiffs
have not referred to this statute in their complaint. Defendant
urges this Court to apply the “economic realities” test as under
FLSA, should it address the WHL.
C.
This certified question has attracted the interest of
several associations, organizations, a union, legal services
projects, and the Department of Labor and Workforce Development
6
of the State of New Jersey.1 Some amici curiae emphasize that
misclassification of employees as independent contractors is now
common in many industries, causing a cumulative societal effect
of less protection for an increasing number of workers and
reduced revenue to the federal and state governments due to
unpaid taxes and assessments. Other amici urge that there is
little valid justification to re-order economic relationships
that would occur from an expansive construction of the term
“employee.” These amici urge a narrow construction of
“employee” that recognizes and preserves the legitimate role
that true independent contractors play in our modern economy.
Specifically, amicus curiae International Brotherhood of
Teamsters (IBT) urges that the Court should use the “relative
nature of the work” standard as a supplement to the “right to
control” test to distinguish between an employee and an
independent contractor. IBT notes that other regulatory schemes
1Litigation addressing the employment status of delivery drivers
has been filed throughout the country. See, e.g., Slayman v.
FedEx Ground Package Sys. Inc., 765 F.3d 1033 (9th Cir. 2014)
(applying Oregon law to determine employment status of FedEx
Ground Package delivery drivers in Oregon); Alexander v. FedEx
Ground Package Sys., Inc., 765 F.3d 981 (9th Cir. 2014)
(applying California law to determine employment status of FedEx
Ground Package delivery drivers in California); Craig v. FedEx
Ground Package Sys., Inc., 335 P.3d 66 (Kan. 2014) (applying
Kansas law to determine employment status of FedEx Ground
Package delivery drivers in Kansas); 863 to Go, Inc. v. Dep’t of
Labor, 99 A.3d 629 (Me. 2014) (applying Maine law to determine
employment status of delivery drivers under Maine law).
7
that utilize the “suffer or permit” language have interpreted
the phrase to reach those traditionally considered independent
contractors, such as musicians and dancers regularly employed at
bars and restaurants, if the activity furthers the business of
the regulated enterprise. See, e.g., G. & J.K. Enters., Inc. v.
Div. of Alcoholic Beverage Control, 205 N.J. Super. 77 (App.
Div. 1985) (holding regulation reaches dancers regularly
appearing at bar), certif. denied, 102 N.J. 397 (1986); Freud v.
Davis, 64 N.J. Super. 242 (App. Div. 1960) (holding regulation
reaches drummer regularly playing at bar). IBT also cites a
plethora of wage-and-hour laws enacted in other states that have
interpreted the “suffer or permit” language that appears in the
WPL and WHL to embrace “so-called independent contractors who
were economically dependent on the enterprise and whose work
advanced the business of the enterprise[.]”
Amicus curiae Legal Services of New Jersey (LSNJ) urges the
Court “to embrace a test that reflects the full historical
breadth of the statutory ‘suffer and permit’ language,” and one
that will “be flexible enough to apply readily to a full range
of foreseeable circumstances and evasive schemes.” LSNJ urges a
“totality of the circumstances” test that includes the following
considerations: control, functional integration, economic
dependence, and the direct or indirect power through the
8
exercise of reasonable diligence to avoid or rectify statutory
violations. LSNJ asserts that this test harmonizes and unifies
federal and other state jurisprudence in the wage-enforcement
context with the DOL independent-contractor regulation.
Amicus curiae DOL observes that the WPL and WHL “work in
tandem to provide a panoply of wage protections for employees.”
DOL states that it has traditionally interpreted and implemented
both statutes using the “ABC” test set forth in N.J.A.C. 12:56-
16.1.
Amici curiae National Employment Lawyers Association of New
Jersey, New Jersey Industrial Union Council, and National
Employment Law Project urge this Court to confirm that the
D’Annunzio test applies to the WPL and WHL. They contend that
the WPL and WHL are considered remedial legislation -- the type
for which that test was developed. Furthermore, employees, such
as plaintiffs, should not be required to demonstrate their
employee status because shifting the burden to the employee
undermines this State’s workplace protections.
Amicus curiae Academy of New Jersey Management Attorneys
(ANJMA) supports defendant’s position that the common law “right
to control” test articulated in Restatement (Second) of Agency,
supra, § 220(2) should govern the definition of “employee” under
the WPL. In the alternative, ANJMA urges adoption of the
9
“economic realities” test for the WPL and WHL because that test
would harmonize state law with federal law, particularly FLSA.
Finally, ANJMA argues that neither the D’Annunzio test nor the
“ABC” test should apply to either the WPL or WHL.
Amicus curiae National Federation of Independent Business
Small Business Legal Center also supports defendant Sleepy’s.
It urges that the test must initially consider whether the
laborer performed services pursuant to a legitimate contract
between independent businesses. It contends that the threshold
determination is which entity is the most likely employer and
that an “employment test is inapposite when the economic
relationship is an arms-length service agreement between
separate companies.” It emphasizes that the Legislature never
intended to disregard business formalities or the recognition of
sole proprietorships and partnerships as independent businesses.2
III.
The issue presented to this Court is a question of law that
requires the interpretation of two statutes -- the WPL and WHL.
Both define the term “employee.” See N.J.S.A. 34:11-4.1b (WPL);
2Neither plaintiffs, defendant, nor any amici urge adoption of
the Darden ERISA test utilized by the District Court.
10
N.J.S.A. 34:11-56a (WHL).3 The WHL by regulation, N.J.A.C.
12:56-16.1, adopts the criteria identified in the Unemployment
Compensation Law to distinguish between an employee and
independent contractor, N.J.S.A. 43:21-19(i)(6)(A), (B), and
(C). As evidenced by the arguments presented by the parties and
amici, various tests derived from various sources have been used
to distinguish between an employee and an independent contractor
and thereby determine which individuals fall within the
protection of various remedial statutory provisions.
The task presented to us in this certified question
involves interpretation of two complementary statutes to
determine and effectuate the intent of the Legislature. See
Murray v. Plainfield Rescue Squad, 210 N.J. 581, 592 (2012)
(citing Allen v. V & A Bros., Inc., 208 N.J. 114, 127 (2011)).
We commence our inquiry with the plain language of each
provision and accord to it the ordinary meaning of the words
selected by the Legislature. DiProspero v. Penn, 183 N.J. 477,
492 (2005) (citing Lane v. Holderman, 23 N.J. 304, 313 (1957)).
As stated in Shelton v. Restaurant.com, Inc., 214 N.J. 419, 429
(2013),
3Although defendant urges that we not address the WHL, we do so
because the certified question asks this Court to address the
governing standard for the WPL and WHL.
11
[i]f the Legislature’s intent is clear from
the statutory language and its context with
related provisions, we apply the law as
written. Lozano v. Frank DeLuca Constr.,
178 N.J. 513, 522 (2004). We are also
guided by the legislative objectives sought
to be achieved by the statute. Wilson ex
rel. Manzano v. City of Jersey City, 209
N.J. 558, 572 (2012). We turn to extrinsic
tools to discern legislative intent,
however, only when the statute is ambiguous,
the plain language leads to a result
inconsistent with any legitimate public
policy objective, or it is at odds with a
general statutory scheme. Ibid.; DiProspero,
supra, 183 N.J. at 492-93.
We must also acknowledge the deference that should be afforded
to the interpretation of the agency charged with applying and
enforcing a statutory scheme. Although not bound by an agency’s
determination on a question of law, In re Distribution of Liquid
Assets Upon Dissolution of Union County Regional High School
District No. 1, 168 N.J. 1, 11 (2001), our courts give “‘great
deference’” to an agency’s “‘interpretation of statutes within
its scope of authority and its adoption of rules implementing’
the laws for which it is responsible,” New Jersey Ass’n of
School Administrators v. Schundler, 211 N.J. 535, 549 (2012)
(quoting New Jersey Society for Prevention of Cruelty to Animals
v. New Jersey Department of Agriculture, 196 N.J. 366, 385
(2008)); see also In re Election Law Enforcement Commission
Advisory Opinion No. 01-2008, 201 N.J. 254, 262 (2010).
A.
12
The Wage Payment Law
The WPL, N.J.S.A. 34:11-4.1 to -4.14, governs the time and
mode of payment of wages due to employees. Generally, an
employer must pay an employee at least twice during a calendar
month, N.J.S.A. 34:11-4.2; the employer may deposit the wages
due to an employee directly into an account maintained by the
employee in a financial institution, N.J.S.A. 34:11-4.2a; the
employer must pay any wages due to an employee who has resigned
or been discharged or laid off no later than the regular payday
for the pay period during which the separation occurred,
N.J.S.A. 34:11-4.3; and the employer must pay to a certain
person or persons all wages due a deceased employee, N.J.S.A.
34:11-4.5. The employer may not enter any agreement with an
employee for the payment of wages except as provided by the
statute other than to agree to pay wages more frequently than
prescribed by the WPL or to pay wages in advance. N.J.S.A.
34:11-4.7. In the event of a dispute regarding the amount of
wages due, the employer must pay all wages conceded to be due at
the time payment is expected. N.J.S.A. 34:11-4.8(a). The WPL
also requires an employer to give advance notice to any employee
paid on a commission basis of any change in the method by which
the commission is calculated. N.J.S.A. 34:11-4.1(b). An
employee may also maintain a private cause of action for an
13
alleged violation of the law. N.J.S.A. 34:11-4.7; Winslow v.
Corporate Express, Inc., 364 N.J. Super. 128, 136 (App. Div.
2003).
Originally enacted in 1965, the WPL remained essentially
unaltered, except for amendments in 1991 and 2001 authorizing,
but imposing conditions on, the withholding or diverting of
employee contributions to political action committees, L. 1991,
c. 190, § 2, and concerning administration of the act, L. 1991,
c. 91, § 353; L. 1991, c. 205, § 2; and L. 2000, c. 14, § 1.
The WPL defines “employee” as “any person suffered or permitted
to work by an employer, except that independent contractors and
subcontractors shall not be considered employees.” N.J.S.A.
34:11-4.1(b); see N.J.A.C. 12:55-1.2. “‘Wages’ means the direct
monetary compensation for labor or services rendered by an
employee, where the amount is determined on a time, task, piece,
or commission basis excluding any form of supplementary
incentives and bonuses which are calculated independently of
regular wages and paid in addition thereto.” N.J.S.A. 34:11-
4.1(c); see N.J.A.C. 12:55-1.2. Neither the text of the WPL nor
its implementing regulations offer any guidance to distinguish
between an employee and an independent contractor.
Amicus DOL advises the Court that “over time, the [DOL] has
applied the ‘ABC’ test for independent contractor determinations
14
under the WPL as well.” DOL refers the Court to an explanation
that accompanied N.J.A.C. 12:56-16.1 (implementing the WHL) that
provides that “it is necessary to include reference to this
criterion in the Wage and Hour rules since an individual’s
employment status impacts determinations concerning entitlements
under the minimum wage, overtime, wage payment and wage
collection statutes.” 27 N.J.R. 3958(a) (Oct. 16, 1995)
(emphasis added). As a remedial statute, the WPL should be
liberally construed. See Turon v. J. & L. Constr. Co., 8 N.J.
543, 558 (1952); see also Kas Oriental Rugs, Inc. v. Ellman, 407
N.J. Super. 538, 564 (App. Div.) (noting WPL’s humanitarian
purpose), certif. denied, 200 N.J. 476 (2009). We, therefore,
approach any question regarding the scope and application of the
WPL mindful of the need to further its remedial purpose.
B.
Wage and Hour Law
The WHL, N.J.S.A. 34:11-56a to –56a38, was enacted in 1966.
The WHL declares that it is
the public policy of this State to establish
a minimum wage level for workers in order to
safeguard their health, efficiency, and
general well-being and to protect them as
well as their employers from the effects of
serious and unfair competition resulting
from wage levels detrimental to their
health, efficiency and well-being.
[N.J.S.A. 34:11-56a.]
15
The WHL is designed to “protect employees from unfair wages and
excessive hours.” In re Raymour & Flanigan Furniture, 405 N.J.
Super. 367, 376 (App. Div. 2009) (quoting Keeley v. Loomis Fargo
& Co., 183 F.3d 257, 259 (3d Cir. 1999), cert. denied, 528 U.S.
1138, 120 S. Ct. 983, 145 L. Ed. 2d 933 (2000)); see also Lane,
supra, 23 N.J. at 316 (identifying two purposes of antecedent
minimum wage legislation -- provision of wages 1) sufficient to
meet minimum costs of healthy standard of living and 2)
commensurate with value of service rendered); Council of N.J.
Hairdressers, Inc. v. Male, 68 N.J. Super. 381, 386-87 (App.
Div. 1961) (same). The statute should be construed liberally to
effectuate its purpose. N.J. Dep’t of Labor v. Pepsi-Cola Co.,
170 N.J. 59, 62 (2001).
The WHL establishes not only a minimum wage but also an
overtime rate for each hour of work in excess of forty hours in
any week for certain employees. N.J.S.A. 34:11-56a4. It does
not prescribe the minimum wage or overtime rate payable to
independent contractors. The term “employ” includes “to suffer
or to permit to work,” N.J.S.A. 34:11-56a1(f), and “employee”
includes “any individual employed by an employer,” N.J.S.A.
34:11-56a1(h). “Employer” includes “any individual,
partnership, association, corporation or any person or group of
persons acting directly or indirectly in the interest of an
16
employer in relation to an employee.” N.J.S.A. 34:11-56a1(g).
The regulation adopted to implement the WHL provides that the
criteria identified in N.J.S.A. 43:21-19(i)(6)(A)-(C) of the
Unemployment Compensation Act and case law will be used to
determine whether an individual is an employee or independent
contractor. N.J.A.C. 12:56-16.1. This test is commonly
referred to as the “ABC” test.
The “ABC” test presumes an individual is an employee unless
the employer can make certain showings regarding the individual
employed, including:
(A) Such individual has been and will
continue to be free from control or
direction over the performance of such
service, both under his contract of service
and in fact; and
(B) Such service is either outside the usual
course of the business for which such
service is performed, or that such service
is performed outside of all the places of
business of the enterprise for which such
service is performed; and
(C) Such individual is customarily engaged
in an independently established trade,
occupation, profession or business.
[N.J.S.A. 43:21-19(i)(6).]
“[T]he failure to satisfy any one of the three criteria results
in an ‘employment’ classification.” Carpet Remnant Warehouse,
Inc. v. N.J. Dep’t of Labor, 125 N.J. 567, 581 (1991).
17
In order to satisfy part A of the “ABC” test, the employer
must show that it neither exercised control over the worker, nor
had the ability to exercise control in terms of the completion
of the work. Schomp v. Fuller Brush Co., 124 N.J.L. 487, 491
(Sup. Ct. 1940), aff’d, 126 N.J.L. 368 (E. & A. 1941). In
establishing control for purposes of part A of the test, it is
not necessary that the employer control every aspect of the
worker’s trade; rather, some level of control may be sufficient.
Ibid.
Part B of the statute requires the employer to show that
the services provided were “either outside the usual course of
the business . . . or that such service is performed outside of
all the places of business of the enterprise.” N.J.S.A. 43:21-
19(i)(6)(B). While the common law recognizes part B as a factor
to consider, it is not outcome determinative within the confines
of the “right to control” test. See Restatement (Second) of
Agency, supra, § 220(e), (h).
Part C of the statute is also derived from the common law.
This part of the test “calls for an enterprise that exists and
can continue to exist independently of and apart from the
particular service relationship. The enterprise must be one
that is stable and lasting -- one that will survive the
termination of the relationship.” Gilchrist v. Div. of Emp’t
18
Sec., 48 N.J. Super. 147, 158 (App. Div. 1957). Therefore, part
C of the “ABC” test is satisfied when an individual has a
profession that will plainly persist despite the termination of
the challenged relationship. See, e.g., Trauma Nurses Inc. v.
Bd. of Review, 242 N.J. Super. 135, 148 (App. Div. 1990)
(holding nurses, who chose where and when they worked, could use
other services or brokers to obtain assignments, and could
practice nursing anywhere after termination of particular
assignment, not employees of placement agency). When the
relationship ends and the individual joins “the ranks of the
unemployed,” this element of the test is not satisfied. Schomp,
supra, 124 N.J.L. at 491-92.
IV.
This dispute is grounded at base in the failure of either
the text of the WPL or its implementing regulations to prescribe
a standard to guide the distinction between an employee and an
independent contractor. The regulations implementing the WHL
expressly provide that the distinction between an employee and
an independent contractor shall be resolved by reference to the
“ABC” test set forth in the Unemployment Compensation Act.
N.J.A.C. 12:56-16.1. With no such direction in the WPL, the
parties offer various tests. The parties also advocate that
19
this Court depart from the standard adopted by the agency
charged with implementing and enforcing both statutes.
Plaintiffs urge application of a single test favoring the
“relative nature of the work” test. Among the alternatives,
plaintiffs prefer application of the “ABC” test or the “economic
realities” test, conceding that the similar remedial purposes of
the WPL and WHL suggest application of the “ABC” test.
Defendant argues that this Court should hold that the “right to
control” test derived from the Restatement (Second) of Agency,
supra, § 220(1), should govern the definition of employee, and
urges that the Court not adopt the “ABC” test, the hybrid test
derived from D’Annunzio, supra, 192 N.J. 110, or the “economic
realities” test.
A.
Right to Control Test
The “right to control” test is the narrowest of all of the
tests. It focuses on whether an individual’s actions were so
controlled by a superior as to render the individual an employee
for purposes of the law. See Cmty. for Creative Non-Violence v.
Reid, 490 U.S. 730, 751, 109 S. Ct. 2166, 2179, 104 L. Ed. 2d
811, 831 (1989) (“In determining whether a hired party is an
employee under the general common law of agency, we consider the
20
hiring party’s right to control the manner and means by which
the product is accomplished.”).
The “right to control” test is derived from the Restatement
(Second) of Agency, supra, § 220(1), which defines an employee
or “servant” as “a person employed to perform services in the
affairs of another and who with respect to the physical conduct
in the performance of the services is subject to the other’s
control or right to control.”
The test is ultimately a totality-of-the-circumstances
evaluation. In Reid, the United States Supreme Court summarized
the process for determining whether a party is an employee under
the common law “right to control” test as follows:
Among the other factors relevant to this
inquiry are the skill required; the source
of the instrumentalities and tools; the
location of the work; the duration of the
relationship between the parties; whether
the hiring party has the right to assign
additional projects to the hired party; the
extent of the hired party’s discretion over
when and how long to work; the method of
payment; the hired party’s role in hiring
and paying assistants; whether the work is
part of the regular business of the hiring
party; whether the hiring party is in
business; the provision of employee
benefits; and the tax treatment of the hired
party.
[Reid, supra, 490 U.S. at 751-52, 109 S. Ct.
at 2178-79, 104 L. Ed. 2d at 831-32
(footnotes omitted).]
21
The “right to control” test appears to be the de facto test
that is implemented when legislation does not provide an
obligatory method of defining the employment relationship.
Relatedly, the United States Supreme Court has previously opined
that when a statute does not provide a definition for the term
“employee,” a court should utilize the “right to control” test.
Darden, supra, 503 U.S. at 322-23, 112 S. Ct. at 1348, 117 L.
Ed. 2d at 589.
B.
Hybrid Test
The hybrid test is derived from D’Annunzio, supra, in which
this Court refined the test in Pukowsky v. Caruso, 312 N.J.
Super. 171, 182-83 (App. Div. 1998), which in turn relied on
Franz v. Raymond Eisenhardt & Sons, 732 F. Supp. 521, 528
(D.N.J. 1990). The Franz test, articulated in the context of an
age discrimination claim under the Age Discrimination in
Employment Act, 29 U.S.C.A. §§ 621-34, encompasses both the
“right to control” test and the “economic realities” test. It
requires a court to consider twelve factors in determining a
worker’s status:
(1) the employer’s right to control the
means and manner of the worker’s
performance; (2) the kind of occupation --
supervised or unsupervised; (3) skill; (4)
who furnishes the equipment and workplace;
(5) the length of time in which the
22
individual has worked; (6) the method of
payment; (7) the manner of termination of
the work relationship; (8) whether there is
annual leave; (9) whether the work is an
integral part of the business of the
“employer;” (10) whether the worker accrues
retirement benefits; (11) whether the
“employer” pays social security taxes; and
(12) the intention of the parties.
[Franz, supra, 732 F. Supp. at 528 (quoting
Equal Emp’t Opportunity Comm’n v. Zippo Mfg.
Co., 713 F.2d 32, 37 (3d Cir. 1983)).]
The Franz test recognizes that employment relationships can
exist whereby employers control the work of specialized workers
who may conduct work outside the scope of the employer’s
abilities but whose work remains integral to the employer’s
overall business scheme. D’Annunzio, supra, 192 N.J. at 124.
In Franz, supra, the court concluded that a terminated
executive was an independent contractor rather than an employee.
732 F. Supp. at 529. The court found that the plaintiff’s
limited work schedule (one or two days a week), his focus on two
accounts, and payment on a per diem basis without any benefits
counselled in favor of a finding of an independent contractor
instead of an employee. Ibid.
In Pukowsky, supra, the Appellate Division was required to
determine whether the plaintiff was an employee or an
independent contractor because an independent contractor is not
protected by the Law Against Discrimination (LAD). 312 N.J.
23
Super. at 180. Relying on the twelve Franz factors, the panel
held that the plaintiff, an accomplished skater who used the
defendant’s skating rink to teach students recruited by her and
paid directly by the students, was not an employee. Id. at 183.
In D’Annunzio, supra, 192 N.J. at 119, the Court discussed
the test for establishing an employee relationship in the
context of the Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -8. CEPA defines “employee” as “any
individual who performs services for and under the control and
direction of an employer for wages or other remuneration.”
N.J.S.A. 34:19-2(b). The Court acknowledged the definition
“includes more than the narrow band of traditional employees.”
D’Annunzio, supra, 192 N.J. at 121. In fact, the Court noted
that “the definition does not exclude, explicitly, persons who
are designated as independent contractors performing services
for an employer for remuneration.” Ibid.
In discussing which test applied for evaluation of the
question of the employment status of a plaintiff seeking the
protection of CEPA or other remedial legislation, this Court
stated that “exclusive reliance on a traditional right-to-
control test to identify who is an ‘employee’ does not
necessarily result in the identification of all those workers
that social legislation seeks to reach.” Ibid. The Court went
24
on to emphasize three of the twelve factors of the
Pukowsky/Franz test that are most pertinent when CEPA or other
social legislation is invoked by a professional person or a
person “providing specialized services allegedly as an
independent contractor[.]” Id. at 122. Those factors are:
“(1) employer control; (2) the worker’s economic dependence on
the work relationship; and (3) the degree to which there has
been a functional integration of the employer’s business with
that of the person doing the work at issue.” Ibid. Applying
those factors to the plaintiff in D’Annunzio, a chiropractor
hired by an insurance company to review and approve treatment
plans, the Court concluded that the plaintiff could be
considered an employee who could seek the protection afforded by
CEPA. Id. at 127; see also Lowe v. Zarghami, 158 N.J. 606, 618
(1999) (acknowledging different factors to determine employment
status when claim derives from social legislation).
C.
Economic Realities Test
FLSA4 defines “employee” as “[a]ny individual employed by an
employer.” 29 U.S.C.A. § 203(e)(1). The statute provides that
4 FLSA, applicable to employees engaged in interstate commerce or
employed by an entity engaged in commerce, establishes a
national minimum wage, 29 U.S.C.A. § 206, prohibits employment
of minors in “oppressive child labor,” 29 U.S.C.A. § 212, and
25
“‘employ’ includes to suffer or permit to work.” 29 U.S.C.A. §
203(g). Congress and the courts interpreting and applying the
statute have remarked that FLSA contains the broadest definition
of employee among the statutes falling into the classification
of social legislation. See 81 Cong. Rec. 7657 (remarks of
Senator Hugo Black); Equal Emp’t Opportunity Comm’n, supra, 713
F.2d at 37.
Due to that expansive definition, federal courts adopted a
totality-of-the-circumstances standard that “examine[s] the
circumstances of the whole activity and should consider whether,
as a matter of economic reality, the individuals are dependent
upon the business to which they render services.” Donovan v.
DialAmerica Mktg., Inc., 757 F.2d 1376, 1382 (3d Cir.)
(citations and internal quotation marks omitted), cert. denied,
474 U.S. 919, 106 S. Ct. 246, 88 L. Ed. 2d 255 (1985). The
standard requires consideration of the following factors in
evaluating employment status:
“1) the degree of the alleged employer’s
right to control the manner in which the
work is to be performed; 2) the alleged
employee’s opportunity for profit or loss
depending upon his managerial skill; 3) the
alleged employee’s investment in equipment
or materials required for his task, or his
employment of helpers; 4) whether the
introduces the forty-hour workweek with “time-and-a-half” for
overtime, 29 U.S.C.A. § 207.
26
service rendered requires a special skill;
5) the degree of permanence of the working
relationship; 6) whether the service
rendered is an integral part of the alleged
employer’s business.”
[Ibid. (quoting Donovan v. Sureway Cleaners,
656 F.2d 1368, 1370 (9th Cir. 1981)).]
In DialAmerica, the court held that home researchers were
employees and subject to the minimum-wage protection of FLSA.
Id. at 1386. The court concluded that the undisputed facts
satisfied five of the six Donovan factors: the investment in
equipment or materials was small, the opportunity for profit or
loss was small, the skills required were few, the work
relationship was not transitory and precluded opportunities to
work for other businesses, and the service provided was an
integral part of the employer’s business. Id. at 1383-86.
Moreover, although the researchers worked from home, the manner
in which they recorded their work product was rigidly controlled
by the company. Id. at 1380.
By contrast, the distributors who performed home research
and coordinated the activities of other home researchers were
not considered employees for their role in delivering work to
and collecting work from home researchers. Id. at 1386. The
court reasoned that the company exercised little control over
this activity -- the distributors paid all expenses of this
activity and could recruit and set the compensation of those who
27
actually performed the distribution activities. Ibid.
Moreover, the distributors required some managerial and record-
keeping skills. Id. at 1387. Finally, the added tasks assumed
by the distributors were not an integral part of the company
business. Ibid.
V.
The fundamental question presented to the Court is which
test should be applied to determine, under the WHL and WPL,
whether a given individual is an employee or an independent
contractor who performs services for remuneration for an
individual or a business concern. The arguments presented by
the parties and amici also urge departure from the test
designated by the DOL to guide its determination of whether an
individual is entitled to the protections afforded by the WHL.
Examining first the plain language of the WHL and WPL and
then the regulations implementing both statutory schemes, we
determine that the same test or standard should be employed to
determine the nature of an employment relationship under both
statutes. We also conclude that no good reason has been
presented to depart from the standard adopted by the DOL to
guide employment status determinations or to disregard the long-
standing practice of treating both statutory schemes in tandem.
Therefore, we hold that any employment-status dispute arising
28
under the WPL and WHL should be resolved by utilizing the “ABC”
test set forth in N.J.S.A. 43:21-19(i)(6)(A)-(C).
The WPL and WHL do not define “employee,” “employer” or
“employ” identically. Compare N.J.S.A. 34:11-4.1 (WPL
definitions of “employee” and “employer”), with N.J.S.A. 34:11-
56a1 (WHL definition of “employ”). Each statute, however,
incorporates the terms “suffer or permit” in either the
definition of “employee” or “employ.” Compare N.J.S.A. 34:11-
4.1(b) (WPL definition of “employee”), with N.J.S.A.
34:11:56a1(f) (WHL definition of “employ”). The similarity of
language suggests that any interpretation or implementation
issues should be treated similarly.
Of greater significance, however, is the purpose of both
statutes. Like FLSA, the WPL and WHL address the most
fundamental terms of the employment relationship. The WPL is
designed to protect an employee’s wages and to assure timely and
predictable payment. Rosen v. Smith Barney, Inc., 393 N.J.
Super. 578, 585 (App. Div.), certif. denied, 192 N.J. 481
(2007). To that end, it directs the mode and time of payment.
See N.J.S.A. 34:11-4.2 to -4.5. The WHL is designed to protect
employees from unfair wages and excessive hours. Raymour &
Flanigan, supra, 405 N.J. Super. at 376. To that end, the WHL
establishes a minimum wage for employees and the overtime rate
29
for each hour of work in excess of forty hours in any week.
N.J.S.A. 34:11-56a4. Statutes addressing similar concerns
should resolve similar issues, such as the employment status of
those seeking the protection of one or both statutes, by the
same standard. Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 175
(2006).
Admittedly, FLSA, WPL, and WHL use the term “suffer or
permit” to define those who are within the protection of each
statute. We recognize that the “suffer or permit” language of
FLSA has been construed as the broadest definition of “employee”
among the various pieces of social legislation and that the
federal courts have adopted the “economic realities” test.
DialAmerica, supra, 757 F.2d at 1382. Still, we discern no
reason to depart from the test adopted by the DOL after adoption
of the WHL.
We assume that the FLSA mandate for a federal minimum wage
influenced the adoption in 1966 of the WHL to protect workers
not covered by FLSA. However, that fact alone does not require
us to jettison now a standard adopted by the agency to
distinguish between an employee and an independent contractor.
New Jersey decided to take a different approach -- one that
presumes a person seeking protection of the WPL or WHL is an
employee -- and we must show deference to the agency charged
30
with interpreting and implementing this basic legislative
initiative to achieve and maintain wage security for workers in
this State. See Schundler, supra, 211 N.J. at 549. DOL asserts
that the selection of this standard has never been challenged
and no party or amici have refuted that contention.
Furthermore, the “ABC” test operates to provide more
predictability and may cast a wider net than FLSA “economic
realities” standard.
The “ABC” test provides an analytical framework to decide
whether a person claiming unemployment benefits or seeking the
protection of the wage-and-hour provisions of the WHL or the
wage-payment provisions of the WPL is an independent contractor
or an employee. It presumes that the claimant is an employee
and imposes the burden to prove otherwise on the employer.
The first inquiry concerns the control exercised by the
individual or business of the person retained to perform a
remunerated task. The inquiry must examine not only the terms
of the contract of agreement to provide services but also the
facts of the employment. In other words, the inquiry extends to
all the circumstances attendant to the actual performance of the
work. N.J.S.A. 43:21-19(i)(6)(A); see also Carpet Remnant,
supra, 125 N.J. 582-83. In addition, the inquiry identifies the
usual course of the business for which the individual has been
31
retained to provide services or the usual place or places at
which the employer performs its business. N.J.S.A. 43:21-
19(i)(6)(B). Finally, the inquiry focuses on the usual or
customary trade, occupation, profession, or business of the
person retained to perform services for the employer. N.J.S.A.
43:21-19(i)(6)(C). In order to be classified as an independent
contractor, the retained individual must satisfy all criteria.
“The failure to satisfy any one of the three criteria results in
an ‘employment’ classification.” Carpet Remnant, supra, 125
N.J. at 581.
By contrast, the FLSA “economic realities” test utilizes a
totality-of-the-circumstances framework guided by six criteria.
DialAmerica, supra, 757 F.2d at 1382. No one factor is
determinative. Rather, the test contemplates a qualitative
rather than a quantitative analysis of each case. Ibid. Such a
test may then yield a different result from case to case. By
contrast, requiring each identified factor to be satisfied to
permit classification as an independent contractor, the “ABC”
test fosters the provision of greater income security for
workers, which is the express purpose of both the WPL and WHL.
For the same reasons, we reject the common law “right to
control” test. For several decades, this State has recognized
that the employment-status test should consider more than one
32
simple factor. Moreover, the “right to control” test is not
particularly well-suited to employment-status determinations.
Designed for utilization in tort cases, see Secretary of Labor
v. Lauritzen, 835 F.2d 1529, 1544 (7th Cir. 1987), cert. denied,
488 U.S. 898, 109 S. Ct. 243, 102 L. Ed. 2d 232 (1988), it is
incompatible with the legislative purpose of insuring income
security to wage-earners.
The Court adopted the hybrid D’Annunzio test, which
combines the “right to control” test and the “economic
realities” test, to address disputes regarding who is entitled
to the protection of our anti-discrimination and whistleblower
statutes. Both statutes seek to provide the broadest coverage
to root out discrimination in the workplace and to protect
individuals who speak out against workplace practices contrary
to the public interest. See N.J.S.A. 10:5-1 to -42; N.J.S.A.
34:19-1 to -8. To that end, CEPA contains a very expansive
definition of employee. See N.J.S.A. 34:19-2(b). This Court
recognized that definition “includes more than the narrow band
of traditional employees” and actually does not explicitly
exclude independent contractors. D’Annunzio, supra, 192 N.J. at
121. We also recognized that certain social legislation, such
as CEPA and LAD, is designed to reach those not traditionally
considered an employee under the common law “right to control”
33
test, such as professionals or those retained to perform
specialized services. Id. at 122. The three criteria utilized
in Pukowsky -- employer control, worker economic dependence, and
functional integration of the employer’s business and the work
performed -- considered the most pertinent to determine
employment status for cases arising under CEPA and LAD, are
similar, if not identical to the “ABC” test. Compare
D’Annunzio, supra, 192 N.J. at 122 (three Pukowsky criteria),
with N.J.S.A. 43:21-19(i)(6)(A)-(C) (factors of “ABC” test). On
the other hand, although this Court identified the three most
pertinent factors, it adopted the Pukowsky criteria in its
entirety and embraced a totality-of-the-circumstances analysis
of the employment-status inquiry. D’Annunzio, supra, 192 N.J.
at 122-23. Therefore, unlike the “ABC” test, the D’Annunzio
test is not limited to those three most pertinent factors. Id.
at 123-24. Once again, permitting an employee to know when,
how, and how much he will be paid requires a test designed to
yield a more predictable result than a totality-of-the-
circumstances analysis that is by its nature case specific.
VI.
In sum, we hold that the issue of employment status under
the WPL and WHL should utilize a single test. The DOL, the
agency charged with implementation and enforcement of the WHL
34
and WPL, declared that the “ABC” test set forth in N.J.S.A.
43:21-19(i)(6)(A)-(C) should govern employment-status disputes
under the WHL. That rule has been applied without challenge
since 1995. The DOL has also applied the same test to
employment-status issues under the WPL because of its similar
purpose of furthering income security. We are not persuaded
that this long-standing approach to resolving employment-status
issues needs any alteration. Therefore, we hold that
employment-status issues raised under the WPL or WHL -- i.e.,
whether a person retained to provide services to an employer is
an employee or independent contractor -- are governed by the
“ABC” test.
CHIEF JUSTICE RABNER; and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and FERNANDEZ-VINA join in JUDGE CUFF’s opinion.
35
SUPREME COURT OF NEW JERSEY
NO. A-70 SEPTEMBER TERM 2012
ON CERTIFICATION of Question of Law From the United States
Court of Appeals for the Third Circuit
SAM HARGROVE, ANDRE HALL and
MARCO EUSEBIO,
Appellants-Appellants,
v.
SLEEPY’S LLC,
Appellant-Respondent,
v.
I STEALTH, EUSEBIO’S TRUCKING
CORP., and CURVA TRUCKING,
LLC,
Third-Party Defendants.
DECIDED January 14, 2015
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE CUFF (t/a) X
TOTALS 6
1
2