2017 NJSBA Mid-Year Meeting Labor and Employment
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2017 NJSBA Mid-Year Meeting Labor and Employment - A Paella of Issues Whether your client is the Barber of Seville or one of his employees, don’t miss the latest court law, procedures and opinions from both sides of labor and employment law. This seminar will also include a presentation from a Spain-based labor and employment attorney to explain some of the key differences between Spanish and U.S. employment laws. Moderator/Speaker: Peter L. Frattarelli, Esq. Archer & Greiner, PC, Haddonfield Speakers: Paulette Brown, Esq., Immediate Past President of the American Bar Association Locke Lord, LLP, Morristown Miguel Pastur, Partner Bird & Bird, Madrid John L. Shahdanian, II, Esq. Chasan Lamparello Mallon & Cappuzzo, LLC, Jersey City User Name: PETER FRATTARELLI Date and Time: Friday, October 6, 2017 9:25:00 AM EDT Job Number: 54544418 Document (1) 1. ABS Group Servs. v. Board of Review, 2016 N.J. Super. Unpub. LEXIS 989 Client/Matter: 999-999-613 | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2017 LexisNexis PETER FRATTARELLI Neutral As of: October 6, 2017 1:25 PM Z ABS Group Servs. v. Board of Review Superior Court of New Jersey, Appellate Division February 1, 2016, Resubmitted; April 27, 2016, Decided DOCKET NO. A-1847-12T3 Reporter 2016 N.J. Super. Unpub. LEXIS 989 * ABS GROUP SERVICES, INC., Appellant, v. BOARD ABS Group Services, Inc. (ABS) appeals from a final OF REVIEW and ROBERT PRICE, Respondents. agency decision of the Board of Review (Board) that found claimant Robert Price was an ABS employee, Notice: NOT FOR PUBLICATION WITHOUT THE making ABS liable for charges to the State plan for APPROVAL OF THE APPELLATE DIVISION. Price's temporary disability claim. Because we agree with the Board that ABS failed to prove Price was PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR engaged in an independently established trade, CITATION OF UNPUBLISHED OPINIONS. occupation, profession or business, we affirm. Prior History: [*1] On appeal from the Board of I. Review, Department of Labor and Workforce Development, Docket No. 338,577. Remanded June 20, Claimant conducted inspections of boilers and pressure 2014. Submitted May 14, 2014. vessels. He was qualified to do so by the State, N.J.A.C. 12:90-3.12, and by the National Board of Boiler and Core Terms Pressure Vessel Inspectors (National Board).1 This allowed him to conduct boiler and [*2] pressure vessel inspections, Newspapers, claimant, Carpet, services, inspections under the ASME2 or National Board codes nurses, independent contractor, third party, benefits, for third party entities that contracted with ABS. He independently established, performing services, performed audits "to make sure [the third parties] disability, boilers, vessels, requirements, performing, comply with the state laws, jurisdictional requirements codes for repairs and alterations, [and] . with the ASME Code" and worked "directly under [the] ABS Quality Counsel: Robert A. Suarez (Ropers, Majeski, Kohn & Control system manual." ABS is an "authorized Bentley), attorney for appellant. inspection agency," meaning that it has "inspectors that Alan H. Schorr & Associates, attorneys for respondent are authorized . to inspect" boilers and pressure Robert Price (Jenelle L. Hubbard, on the brief). vessels. N.J.A.C. 12:90-2.1. John J. Hoffman, Acting Attorney General of New Price worked for ABS in the mid-1990s as an employee Jersey, attorney for respondent Board of Review, performing the same type of work. He left ABS, was Department of Labor and Workforce Development employed by another authorized inspection agency for a (Peter H. Jenkins, Deputy Attorney General, on the brief). 1 Individuals may be qualified and issued a commission by the Judges: Before Judges Sabatino and Suter. National Board of Boiler and Pressure Vessel Inspectors after meeting certain testing, education, and experience Opinion requirements, as laid out in that organization's National Board Inspection Code. See also N.J.A.C. 12:90-2.1. 2 The "ASME Code" is a national code developed by its PER CURIAM namesake the American Society of Mechanical Engineers (ASME) that addresses safety concerns with boilers and pressure vessels. PETER FRATTARELLI Page 2 of 5 2016 N.J. Super. Unpub. LEXIS 989, *2 few years and, after he was laid off by that agency, However, both sides testified [*5] that the rules had returned to ABS in March 2009. By then, ABS changed subsequently to now permit an inspector to considered [*3] inspectors such as Price to be become his "own authorized inspection agency."3 To do independent contractors rather than employees. Price so, an inspector had to "start [a] company, as an signed an "Independent Contractor Agreement" with accredited authorized inspection agent . that complies ABS under which he agreed to perform National Board with the ASME and National Board" and obtain and ASME inspections for ABS just as he had done professional liability insurance that was "quite during his first employment. expensive." The agreement between ABS and Price referred to him Price had not become his own authorized inspection as an independent contractor. He was to "comply with agency because according to his testimony, he was "at the requirements of ABS CONSULTING and all [the] twilight of [his] career" and he observed, "it's a little applicable laws, ordinances, rules and regulations . more complicated than just starting a company[.]" Price affecting the work[.]" He was to "report to, receive did not own or operate his own business. Since service orders from and be responsible for his February 2013, he had been working for another performance and receive direction from the . ABS company performing National Board and ASME Consulting ASME manager." Price was bound by any inspections for many of the same third parties. "reasonable restrictions or conditions . in any [a]greement by and between ABS" and its clients. Price filed for temporary disability benefits in March 2010.4 ABS appealed the Deputy's determination that These third party inspection services were for clients he was eligible to receive benefits and a hearing was who were under contract with ABS. However, many held in May 2012. Later that year, the Board of Review clients had followed Price when he moved between affirmed the Appeal Tribunal's decision [*6] that the authorized inspection agencies. Nevertheless, once services performed by Price for ABS were employment, Price began work for ABS again, those clients signed although ABS had proven to the satisfaction of the contracts with ABS that ABS prepared and executed. Board that Price was free from direction and control by ABS. In agreeing with the Appeal Tribunal, the Board Price was paid on an hourly basis by ABS, not by the noted additionally that Price "used a computer provided clients. He submitted time sheets to ABS and then ABS by the employer and serviced clients who were generated an invoice to send [*4] to the clients. ABS contracted with the employer, albeit that he brought also paid Price's expenses, such as meals, mileage, those clients to the employer." ABS appealed the final lodging and tolls. He was issued an ABS e-mail address agency decision. and computer. ABS did not provide fringe benefits, paid vacation or sick leave, nor did Price have a pension or That first appeal was decided by us in June 2014. We 401K plan through ABS. Price was required to obtain his reversed the Board's finding that ABS had failed to own health, disability, unemployment, automobile and prove any of the three essential criteria for independent professional liability insurance. ABS provided Price with contractor status set forth in N.J.S.A. 43:21-19(i)(6)(A) a 1099 form for tax-reporting purposes. Price oversaw through (C). In particular, we determine that ABS had other ABS inspectors and was available to ABS established "the alternative that Price performed the customers twenty-four hours per day. service he rendered for remuneration outside of all the places of business of ABS" which is one of the two Price was permitted to conduct inspections that were not governed by the National Board or ASME codes and although he also performed these types of inspections for ABS, he did not perform them for any other agency. 3 Since at least 1995, see N.J.A.C. 12:90-10.1 (incorporating Price testified he had to be employed by an authorized the 1995 National Board Inspection Code), an inspector may inspection agency to obtain a commission card that then operate as his or her own authorized inspection agency by becoming qualified as an owner-user agency. See N.J.A.C. enabled him to perform inspections under the National 12:90-2.1. Board or ASME codes. If he left that employment, he had to "turn that card in, or [the] card is invalid." The 4 Pursuant to N.J.S.A. 43:21-37, temporary disability benefits ABS representative acknowledged these requirements, provided by the State plan are available to a "covered testifying that Price "needed at the time an agency to individual who on the date of the commencement of a period work with and we gave him that." of disability is not entitled to disability benefits under an approved private plan[.]" PETER FRATTARELLI Page 3 of 5 2016 N.J. Super. Unpub. LEXIS 989, *6 alternative criteria within factor (B) of N.J.S.A. 43:21- ABS in conducting ASME and National Board 19(i)(6). ABS Groups Services, Inc. v. Bd. of Review, inspections of third parties. Because he was free to Dep't. of Labor, No. A-1847-12, 2014 N.J. Super. perform other inspections not conducted under the Unpub. LEXIS 1486, *4 (App. Div. June 20, 2014) [*7] . National Board or ASME codes, while he was However, because the Board's findings were not performing ASME [*9] and National Board inspections otherwise adequate for our review, we remanded the for ABS, ABS contends Price is engaged in an matter to the Board for further consideration, including inspection business, which satisfies the "independent- reopening the record at the Board's discretion, but we business test." Price counters by emphasizing that retained jurisdiction.