Forklift Operator Not A “Special Employee”

 Special equipment operators often appear to work for two employers simultaneously. The facade of dual employment may not meet the criteria for being a shared employee or “special employee.”

A New Jersey Appellate Court ruled that an employee hired by the NJ Sports and Exposition Authority [NJSEA] and who worked at the Izod Center operating a forklift using his services while setting up for the exhibition did not attain the status of a lent employee.

In a fact-sensitive analyses the court took in consideration that the employee had to move 55-gallon drums filled with water to set up the exhibitor’s tent.  The forklift operator was injured while moving the barrel of water.

“ In order to determine the employment, the court will review the following factors: the existence of a separate agreement between the employee and each employer, the determination of whose work is being performed at the time of the accident, which employer has the right to control the specific details of the work, which employer paid compensation, and which employer has the power to hire, discharge, or recall the employee.” Gelman, Jon L, Workers’ Compensation Law, 38 NJPRAC 7.7, “Lent employees and dual employment.” (Thomson-Reuters 2019). 

The court applied the 5-step test to determine the existence of a “special employer-employee relationship.”  The test, outlined in Kelly v. Geriatric and Medical Service, Inc., 24 N.J. Super, 6671 (NJ  App. Div. 1996) outlines the 5-point test:

1. the employee has made a contract of hire, express or implied, with the special employer;
2. the work being done by the employee is essentially that of the special employer;
3. the special employer has the right to control the details of the work;
4. the special employer pays the employee's wages; and
5. the special employer has the power to hire, discharge or recall the employee.

The third factor, the right to control was as deemed the deciding element concluding that “special employee” status did not exist. The vehicle, the cargo, the destination and the route were determined by the NJSEA and not the renter.

Carabello v. Jackson Dawson Communications, Inc., et al.,  2019 WL 1375209 (N.J. App. Div. 2019) Decided March 26, 2019.

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. This opinion shall not “constitute precedent or be binding upon any court.” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Superior Court of New Jersey, Appellate Division.

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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.