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(c) 2017 Jon L Gelman, All Rights Reserved.

Tuesday, June 20, 2017

Employment Status: Common Law Tests May Need an Update

The application of the common-law standard to determine employment status may no longer be relevant in the age of the gig economy. The NJ Appellate Division ruled that the common law test utilized to determine employment status could not be utilized in the interpretation of a medical malpractice insurance policy.

A medical malpractice claim was brought against Clara Maas Medical Center. The trial judge capped the liability of the hospital under the Charitable Act N.J.S.A. 2A:53A 1 to 11 in the amount of $250,000.00. The plaintiff then looked to the hospital's policies for additional coverage against the physician.

In a published decision, the Court rejected the common law tests, of "right to control test" and the "relative nature of the work test," in establishing the definition of "employee" for the physician.

In a concurring opinion by Judge Oster, J.A.D.,  the Judge stated that "This is an insurance case....it is irrelevant whether Dr.Copur satisfied the common law definitions of an employee, either by the right to control test or by the relative nature of the work test." Judge Oster went on to write, "I am wary of applying our traditional common law standards to increasingly complex and novel workplace relationships."

Judge Oster further went on to comment, "We might also consider whether the traditional control and relative nature of work tests should be modernized to account for the shift in the nature of the workplace relationships in our society, which affects far more than the hospital or, broadly, the health care sector."

Gil v Clara Maass Medical Center, et al., __A.3d___ (App. Div. 2017)  2017 WL 2625964, Decided June 19, 2017.

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). 


For over 4 decades the
Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

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