Jon Gelman’s newly revised and updated 2018 treatise on Workers’ Compensation Law is now available from by West Group of Egan, MN within the next few weeks. The treatise is the most complete work available on NJ Workers’ Compensation law and integrated with WESTLAW™, the "most preferred online legal research service.'"
Showing posts sorted by relevance for query employment status. Sort by date Show all posts
Showing posts sorted by relevance for query employment status. Sort by date Show all posts
Saturday, February 10, 2018
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.
Monday, September 12, 2022
Dual Employment and the Proposed NLRB Joint-Employer Standard
Workers’ compensation claims may be pursued against two companies if there is found to be joint employment. While case law defines employment status, the US National Labor Relations Board has issued a proposed Rule to substantiate a dual employer status.
Monday, May 30, 2022
Dual Employment Status Bars Double Recovery
An employee may have dual employers but ultimately can only receive a single recovery from only one employer for work-related injuries. The “exclusivity doctrine,” permitting a complete recovery of damages against an employer, limits an injured worker’s benefit recovery to the compensation system, barring an intentional tort.
Monday, February 28, 2022
The Master of the Complaint Retains Jurisdiction
Deciding employment status is an issue that can be resolved either before the Division of Workers’ Compensation [DWC] or before Superior Court in a civil action.
Tuesday, August 18, 2015
NLRB Rejects Northwestern University Football Payers' Bid to Unionize
Ryan Field, Northwestern's 49,000 seat football stadium.
The NLRB has rejected a bid by the football players at Northwestern University to unionize. The decision, ironically, did not decide whether or not the football scholarship players were employees.
Wednesday, June 17, 2015
NJ Supreme Court: Superior Court has jurisdiction to determine employment status
The NJ Supreme Court ruled that the NJ Division of Workers' Compensation does not have exclusive jurisdiction in determining employment status. In reversing the decision of the Appellate Decision, the NJ Supreme Court held that when a claim petition is not filed with the NJ Division of Workers' Compensation, the Superior Court has exclusive jurisdiction over who is an employee versus independent contractor.
"We conclude that when, as here, there is a genuine dispute regarding the worker's employment status, and the plaintiff elects to file a complaint only in the Law Division of the Superior Court, the Superior Court has concurrent jurisdiction to resolve the dispute."
Thursday, July 23, 2015
Misclassification: US Dept of Labor Issues Interpretation of Employment Status
The Application of the Fair Labor Standards Act’s “Suffer or Permit” Standard in the Identification of Employees Who Are Misclassified as Independent Contractors.
Sounding very much like a workers' compensation standardized employment status test, the US Department of Labor has added its interpretation this developing area of the law. This memo will has obvious added consequences to state interpretation to this issue.
Sounding very much like a workers' compensation standardized employment status test, the US Department of Labor has added its interpretation this developing area of the law. This memo will has obvious added consequences to state interpretation to this issue.
Monday, April 22, 2019
Employment Status Not Dependent on Exercising the Right to Control
Who an employee works for is determined by whether an employer may control the employee and not the exercise of the right. A NJ Appellate Court ruled in a dual employment issue that employment status is not dispositive by a single factor and that right to control an employee can be shared which establishes a dual employment situation.
Wednesday, October 9, 2013
Case Remanded to Compensation Court to Determine Employment Status
A NJ Appellate Court has remanded a negligence case from Superior Court to the Division of Workers' Compensation to determine when an employee held joint employment and subject to the Exclusivity Bar.
" It is well settled in this jurisdiction that for workers ' compensation purposes
" It is well settled in this jurisdiction that for workers ' compensation purposes
an employee may be simultaneously employed by more than one employer, either because
of the employee's separate contracting with multiple employers or because
his general employer has “lent” him to a special employer. The question to be
determined in the dual employment situation is whether, at the time of the injury,
the petitioner was, as a factual matter, the employee of one or the other
or both of the employers.
In determining which among multiple employers are liable for workers ' compensation ,
this court has noted the indicia of employment that ordinarily require
evaluation, including the existence of a separate agreement between the employee
and each employer, the determination of whose work is being done at the time of
the compensable injury, which has the right to control the details of the work,
which pays, and which has the power to hire, discharge or recall the employee.
The relative weight to be accorded these factors and the manner in which they
are to be balanced are not, however, ... subject to mechanical or automatic application.
Rather, the criteria determinative of the employment relationship
must be “rationalized and applied so that each case may be considered and determined
upon its own particular facts.” And, ...in the dual employment situation,
the most significant inquiry is the determination of “whose interest the
employee was furthering at the time of the accident. ”
CHALMERS and FRED CHALMERS, Plaintiffs–Appellants,
v.
STEPHEN J. SWARTZ
--- A.3d ----, 2013 WL 5525694 (N.J.Super.A.D.) October 9, 2013
Related articles
Sunday, July 3, 2011
Florida Rules Illegal Aliens Entitled to Workers Compensation
A Florida Court has ruled that illegal aliens are entitled to workers' compensation benefits. This follows the acceptance of a majority of States to offer workers' compensation status to workers regardless of their immigration status and is in conformity with public policy and legislative intent.
The Court reasoned that the employer knew or should have known of the illegal status of the employee at the time of hiring then the employer is subsequently responsible to pay workers' compensation benefits following a work-related injury.
The Court stated in its opinion:
"Although there is no shortage of debate that can be had on the issue of illegal labor and its effect on our state, there is no dispute that the Florida Legislature has expressed an unyielding, textual intent that aliens, including those who are illegal and unlawfully employed, be covered and compensated under the Florida Workers’ Compensation Law. See § 440.02(15)(a), Fla. Stat. (2007) (defining “employee” to include any person who receives remuneration from an employer, including aliens, whether “lawfully or unlawfully employed”); see also Safeharbor Employer Servs., Inc. v. Velazquez, 860 So. 2d 984 (Fla. 1st DCA 2003) (“Therefore, we conclude that the Florida legislature's right to enact workers' compensation benefits for illegal aliens is not preempted by federal action.”). Indeed, the purpose of workers’ compensation law is to place on industry, rather than the general taxpaying public, the expense incident to the hazards created by industry. Gore v. Lee County Sch. Bd., 43 So. 3d 846, 849 (Fla. 1st DCA 2010) (explaining workers’ compensation legislation is designed to relieve society in general of expenses created by industry). Moreover, because the employer stands to benefit and profit from its employment of labor, and further is in the best position to avoid the risk of loss, the courts have uniformly recognized the impropriety of foisting on society the costs of a “broken body” and “diminished income” created by industry. Mobile Elevator Co. v. White, 39 So. 2d 799, 800 (Fla.1949)."Accordingly, the Florida Legislature has long recognized that although the employment of illegal aliens is prohibited by federal and state law, violation of these laws is an unfortunate reality, and the cost of injuries sustained by unlawful workers, being no less real than those suffered by lawful workers, should be borne by the industry giving rise to the risk (and best positioned to avoid the loss), not the general taxpaying public. In the instance of employers that employ illegal workers, this court has held that such an employer is precluded from asserting the status of an illegal alien as a defensive matter so as to avoid liability for disability benefits otherwise due only when the employer “knew or should have known of the true status of the employee.” Candelo, 478 So. 2d at 1170 (“This holding prevents unauthorized aliens from suffering at the hands of an employer who would knowingly hire the alien and then conveniently use the unauthorized alien status to avoid paying wage loss benefits.”). The holding in Candelo, in addition to being binding authority on this court, advances the principle that an entity that knowingly employs unlawful labor should not be able to shirk the cost of the injuries it creates – and in turn, shift the cost of the damages that it has knowingly created on the taxpaying public – ultimately placing it in a unfairly superior financial position to those employers who operate lawfully. Accordingly, here, we find no error in the JCC’s application of Candelo so as to preclude the E/C from raising Claimant’s illegal status, a concern that it waived when hiring and continuing to employ Claimant, as a defensive mechanism to avoid responsibility for an individual who is, based on the factual findings of the JCC, permanently and totally disabled under the Workers’ Compensation Law."
Tuesday, April 14, 2015
On-Call Employment: Uber on Steriods
The NY Attorney General took action yesterday to rein in the growing emergence of "on-call staffing." The new dynamic of on demand staffing continues to be a growing trend in the employment arena. It is sort of an Uber on steroids.
The historic legal concepts that determine compensability in workers compensation cases have traditionally been defined by the concept of "arising out of and in the course of employment." Those parameters are indeed going to be challenged by the concept of "on-call employment."
The historic legal concepts that determine compensability in workers compensation cases have traditionally been defined by the concept of "arising out of and in the course of employment." Those parameters are indeed going to be challenged by the concept of "on-call employment."
Tuesday, February 9, 2021
Volunteer's Injury at Community Outreach Event Compensable
The NJ Supreme Court has held that an injury sustained while volunteering at her employer-sponsored event is compensable because the event was not a social or recreational activity.
Thursday, December 14, 2017
Exclusivity Rule: Police Officer Hired to Direct Traffic Was a Special Employee-Unpublished Opinion
A municipal police officer who was hired by a contractor to direct traffic at a construction site was determined to be a “special employee” and barred from suing a co-worker of the construction company. The NJ Appellate Court has held, in an unpublished opinion*, the “Exclusivity Rule” barred the institution of a civil action against a co-worker.
Tuesday, June 22, 2021
A Potential Game-changer for Workers' Compensation
This week’s ruling by the United States Supreme Court [SCOTUS] is a potential game-changer for workers' compensation. SCOTUS unanimously ruled that the National College Athletic Association [NCAA] cannot restrict student-athletes from receiving payment for endorsements.
Sunday, July 20, 2014
Employment Status An Issue: Who's their real boss
| Today's post is shared from http://www.mercurynews.com Who's your boss? For an increasing number of American workers, it's a hard question to answer. To cut costs and avoid liability, more companies are hiring workers on a temporary or contract basis. More than 17 million people, 12 percent of the U.S. workforce, are now employed as temps, contract or freelance workers. If you're a temp, which company is responsible for your pay, your schedule — and your right to a safe workplace? The agency that hired you, or the company that hired the agency? The right answer, according to a group of temporary workers at a recycling plant in Milpitas, is both. They get paid by one company — Leadpoint Business Services — but work under the direction of a different one — Browning Ferris Industries (BFI), which operates the facility. When temps at Milpitas filed a union organizing petition last year, they asked the National Labor Relations Board to recognize both Leadpoint and BFI as joint employers. Seeking representation by the Teamsters, the workers argued that since two companies share control over the work environment, both should come to the bargaining table. The regional office of the NLRB disagreed, finding Leadpoint alone was the employer. The temporary workers have appealed. My organization — the National Council for Occupational Safety and Health — recently joined an amicus brief in support of their claim that both companies are joint... |
Tuesday, April 1, 2014
The Degree of Employer Control Determines Compensability in an Off-Premises Parking Lot Case
The NJ Supreme Court declared the nature of the employer's control determines compensability in an off-premises parking lot claim. The Court ruled that the NJ 1979 Legislative amendments mandate that the "coming and going" rule bars such a workers' compensation claim when an employee is injured on a public street while walking to and from a public parking lot.
The Court held that even though the employer provided a parking pass to the employee to park in the public lot, that since the employer did not own, maintain or exercise control over the lot nor the route that the employee must take in commuting to the employer's premises, the employee could not pursue a workers' compensation claim.
The element of "control" pervades many issues in workers' compensation including "employment status. NJ has "The Right to Control Test" that is utilized in determining the employment status of the employee.. This is been a major factor in misclassification of workers and the eligibility of workers' compensation cover.
Hersh v. County of Morris A-59 NJ Supreme Court, Decided April 1, 2014.
Note: This cases and others will be the subject the NJ Hot Topics in Workers' Compensation Law Seminar on June 18, 2014. Both Lewis Stein, Esq. and John R. Tort, Jr., Esq., who were the lead counsel representing the parties involved in the litigation, will participating in the upcoming seminar.
Click here to register today.
The Court held that even though the employer provided a parking pass to the employee to park in the public lot, that since the employer did not own, maintain or exercise control over the lot nor the route that the employee must take in commuting to the employer's premises, the employee could not pursue a workers' compensation claim.
The element of "control" pervades many issues in workers' compensation including "employment status. NJ has "The Right to Control Test" that is utilized in determining the employment status of the employee.. This is been a major factor in misclassification of workers and the eligibility of workers' compensation cover.
Hersh v. County of Morris A-59 NJ Supreme Court, Decided April 1, 2014.
Note: This cases and others will be the subject the NJ Hot Topics in Workers' Compensation Law Seminar on June 18, 2014. Both Lewis Stein, Esq. and John R. Tort, Jr., Esq., who were the lead counsel representing the parties involved in the litigation, will participating in the upcoming seminar.
Click here to register today.
Tuesday, July 1, 2014
US Supreme Court Defines Employment Status
 |
| English: United States Supreme Court building in Washington D.C., USA. Front facade. (Photo credit: Wikipedia) |
In a split decision the Justices held that, a personal assistant hired under Pennsylvania Medicare, was not considered to be a public employee subject to mandatory union dues deductions like others state employees. The Court reasoned that the personal assistants were subject to the control of the private patients since the patients maintained control b b hiring, firing, training and supervising of the employee.
Harris v Quinn, No. 11-681 (Sp. Ct. 2014), decided June 30, 2014.
Lyle Denniston Reporter for scotus.com reports: "What the Court did do specifically was to draw a legal distinction for now between state and local employees that it will consider to be “full-fledged” public workers and workers who will be treated as something less than that — “partial public employees,” such as the workers in this case — for purposes of union organization. The workers in this case are home health care workers who look after a patient or two in the privacy of a household."
Monday, July 15, 2013
Administration Urges Rate Changes for US FELA Benefits
Gary Steinberg, Acting Director Office of Workers' Compensation Programs, U.S. Department of Labor Acting testified before the Subcommittee on Workforce Protections Committee on Education and the Workforce, U.S. House of Representatives, on July 10, 2013
"Thank you for inviting me to this important hearing today. As you know, the Department of Labor's
(DOL) Office of Workers' Compensation Programs (OWCP) administers a number of workers' compensation programs, including the Federal Employees' Compensation Act (FECA) program, which covers 2.7 million Federal and Postal workers and is one of the largest self-insured workers' compensation systems in the world.
I appreciate the opportunity to discuss legislative reforms to FECA that would enhance our ability to assist FECA beneficiaries to return to work, provide a more equitable array of FECA benefits, and generally modernize the program and update the statute. Almost 97 years ago, on September 7, 1916, Congress enacted FECA to provide comprehensive Federal workers' compensation coverage to all Federal employees and their survivors for disability or death due to an employment injury or illness.
"Thank you for inviting me to this important hearing today. As you know, the Department of Labor's
 |
| Gary Steinberg, Acting Director Office of Workers' Compensation Programs, U.S. Department of Labor, |
I appreciate the opportunity to discuss legislative reforms to FECA that would enhance our ability to assist FECA beneficiaries to return to work, provide a more equitable array of FECA benefits, and generally modernize the program and update the statute. Almost 97 years ago, on September 7, 1916, Congress enacted FECA to provide comprehensive Federal workers' compensation coverage to all Federal employees and their survivors for disability or death due to an employment injury or illness.
Tuesday, August 13, 2019
Employment Status: NCAA Division 1 Player Not an Employee
The 9th Circuit Court of Appeals affirmed the district court’s dismissal of a Division I college football player’s claim that he was an employee of the National Collegiate Athletic Association and the PAC-12 Conference within the meaning of the Fair Labor Standards Act and California labor law and thus entitled to minimum wage and overtime pay.
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