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Tuesday, August 14, 2018

NJ Workers and Drivers Using Own Tools and Trucks May Have Whistleblower Protections

NJ workers who exclusively use their own tools, be it carpentry tools or even a truck, are not necessarily independent contractors in terms of whistleblower protections. For example only, a whistleblower claim may be that a commercial driver complained about being forced to drive excess hours without sufficient break time in violation of State regulations for those holding commercial drivers licenses (CDL), and that the employer/business then retaliated against the driver for complaining. NJ workers owning their own tools of the trade, such as commercial drivers and others,  have asked me if they have a NJ Whistleblower claim under New Jersey's Conscientious Employee Protection Act, § 34:19-2 (CEPA) if their employer considers them to be an independent contractor. The employer, for numerous reasons to benefit the employer and to the detriment of the employee, sometimes purposely mis-classifies a driver or other worker to be an independent contractor rather than an employee and reports the worker’s year-end earing by way of a 1099 rather than a W-2 or pay the driver in cash. Owing your own tools of the trade, by way of example, carpentry tools if a construction worker, plumbing tools if a plumber, or even owning your own chemical transport truck that you use to transport toxic chemicals for a business, does not automatically make you an independent contractor for purposes of whistleblower protections.

Courts apply various tests arising from various sources to determine if a worker is an employee or an independent contractor to determine which individuals fall within the protection of various statutes. The tests a court applies as to any statute are similar in many regards but may be dissimilar in other aspects depending on the remedial provisions of different statutes.

CEPA, N.J.S.A. §§ 34:19-1 to -8, defines an "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). Workers who are designated as independent contractors performing services for an employer for remuneration are not explicitly excluded from gaining protection from retaliation for whistleblowing under CEPA.

The seminal case of D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110 required the Supreme Court of New Jersey to address who is included in the definition of an employee and entitled to the protection of CEPA.

D'Annunzio relied on a hybrid test, in which the Court refined prior tests found in Pukowsky v. Caruso, which in turn relied on Franz v. Raymond Eisenhardt and Sons. The Franz test, (which was considered in the context of an age discrimination claim under the Age Discrimination in Employment Act) contained two prongs: the right to control test and the economic realities test. It requires a court to consider twelve factors: (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 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. The Franz test recognizes that employment relationships can exist whereby employers control the work of specialized workers who may conduct work outside of the employer's abilities but whose work remains integral to the employer's overall business scheme.

If your employer considers you to be an independent contractor, and you have considered yourself to be an independent contractor, it is possible you may be considered an employee for the protections of CEPA to apply if you are retaliated for whistleblowing.

For purposes of determining whether an "independent" is a worker who receives whistleblower protections under CEPA, the above 12 factors are of themselves not dispositive, i.e, even if you don't receive annual leave and don’t accrue retirement benefits; and you pay your own social security taxes and at times consider yourself to be independent,  there are various situations in which the control test does not emerge as the dispositive factor and you may be awarded protections as an employee. As the Court aptly stated:

 " For example, where it is not in the nature of the work for the manner of its performance to be within the hiring party's direct control, the factor of control can obviously not be the critical one in the resolution of the case, but takes its place as only one of the various potential indicia of the relationship which must be balanced and weighed in determining what, under the totality of the circumstances the character of that relationship really is.

Thus, the requirement of control is sufficiently met where its extent is commensurate with that degree of supervision which is necessary and appropriate, considering the type of work to be  done and the capabilities of the particular person doing it. Patently, where the type of work requires little supervision over details for its proper prosecution and the person performing it is so experienced that instructions concerning such details would be superfluous, a degree of supervision no greater than that which is held to be normally consistent with an independent contractor status might be equally consistent with an employment relationship."

New Jersey courts have taken a liberal approach in determining who constitutes an “employee” for purposes of invoking CEPA protection to whistleblowers, even those who own their own tools of the trade to do work for the employer.

If you work for a public or private employer who classifies you as an independent contractor, and you complained to a supervisor or reported to a public entity what you reasonably believed to be illegal workplace practices, policies or acts by such employer and then experienced retaliation, you should contact an experienced employment law attorney who is successful and knowledgeable in this area of law.

DO NOT SIT ON YOUR RIGHTS!

Do not sit on your rights, or you may lose the right to file your claim.

If you think you have been retaliated against, it is essential for you to contact an experienced, competent and compassionate employment whistleblower attorney who will be aggressive about enforcing your rights as soon as possible.

If you have been demoted, had your hours cut, terminated, harassed or been subjected to retaliation for complaining about, objecting to, refusing to participate in, or reporting what you believe is your employer’s illegal or improper conduct or fraud, you may have a valid Whistleblower Claim. It is important to not sit on your rights and to contact a Whistleblower attorney as soon there has been such retaliation against you.

If you think you have been retaliated against, you should contact this law firm as soon as possible. I am an experienced, competent and compassionate employment discrimination attorney who will be aggressive about enforcing your rights.  I am successful in bringing whistleblower lawsuits and recovering money for whistleblower workers.

If you are being subjected to such unlawful workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

New Jersey employment attorney, Hope A. Lang, Attorney at Law serves clients throughout the state, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Southern, Central, Western and Northern NJ to meet with clients.

 



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