Artificial intelligence (AI) programs have become an exciting new Internet phenomenon. Initially launched to generate graphics, the programs have rapidly emerged as Internet research's most significant development of the last twenty years.
LAUNCHING OF AI LANGUAGE-BASED APPLICATIONS
Recently a Judge in Columbia admitted to using an AI program, ChatGPT, in writing a decision on whether an autistic child’s insurance should pay the costs of medical treatment. The judge defended his use of technology in rendering his decision.
AI-GENERATED JUDICIAL OPINIONS
Judicial opinions are based on analyzing facts, statutes, regulations, and prior judicial precedents. The objection analysis relies upon data accuracy and is devoid of personal emotions. A NY Times investigative reporter in technology reported that while using a beta testing version of Bing, a Microsoft AI program, the computer announced that it had fallen in love with the reporter and that the happy married journalist should leave his wife.
The stated mission of CHAT-AI is, ”Creating safe artificial general intelligence that benefits all of humanity.” In implementing that mission, the question I posed is whether artificial intelligence programs are ready to take the judicial bench.
The program developers will install “guard rails” on these language-based artificial intelligence models as the computer programs become sophisticated. The interest in these programs seems enormous, and all types of users are finding applications for using AI programs.
The legal community is fertile ground for the implementation of AI. The database of primary and secondary legal information is massive.
AN EXPERIMENT
Over the last six months, as an invited beta tester of several AI programs, I have experimented with various AI programs. I have tested the applications in research and analysis on various workers’ compensation legal issues.
Recently, I engaged AI in writing judicial opinions on employment status and, more particularly, the application of New Jersey on independent contractors. I asked ChatGPT to write a judicial opinion on the subject.
Q: Write a judicial opinion in a workers' compensation case based on NJ law, whether a delivery person is an employee or an independent contractor.
A:
Introduction
This case concerns the determination of whether a delivery person is an employee or an independent contractor for the purposes of workers' compensation under New Jersey law. The question is important because employees are entitled to workers' compensation benefits, including medical treatment and lost wages, while independent contractors are not.
Facts of the Case
The plaintiff in this case is a delivery person who was injured while making a delivery for the defendant company. The defendant company claims that the plaintiff is an independent contractor and not an employee, and therefore not entitled to workers' compensation benefits. The plaintiff argues that they are an employee and entitled to benefits.
Analysis
The determination of whether a worker is an employee or an independent contractor in New Jersey is based on the "ABC" test. Under this test, a worker is presumed to be an employee unless the employer can demonstrate all three of the following factors:
A. The worker is free from control or direction over the performance of the service, both under the contract of service and in fact;
B. The service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
C. The worker is customarily engaged in an independently established trade, occupation, profession or business.
In this case, the defendant company argues that the plaintiff is an independent contractor because they meet all three prongs of the ABC test. The defendant asserts that the plaintiff had control over the performance of the delivery service, was not performing a service within the usual course of the defendant's business, and was customarily engaged in an independently established trade.
However, upon review of the evidence presented, the court finds that the plaintiff is an employee under the ABC test. The court finds that the defendant company exercises significant control over the plaintiff's work, such as providing delivery instructions and deadlines. The court also finds that the delivery service is within the usual course of the defendant's business, as the company relies on delivery services to fulfill its business operations. Finally, the court finds that the plaintiff does not customarily engage in an independently established trade, as the plaintiff works exclusively for the defendant company and does not have the opportunity to provide delivery services to other businesses.
Conclusion
Based on the application of the ABC test, the court finds that the plaintiff is an employee of the defendant company and entitled to workers' compensation benefits. The defendant company is therefore ordered to provide the plaintiff with the appropriate benefits, including medical treatment and lost wages.
Unfortunately, the AI program adopted the wage and hour law in its analysis. So, I attempted to re-direct the AI program’s focus.
Q: What case law can be cited to support the opinion?
A: In support of the opinion that the plaintiff is an employee entitled to workers' compensation benefits, the following case law can be cited:
- Hargrove v. Sleepy's, LLC, 220 N.J. 289 (2015): In this case, the New Jersey Supreme Court held that the ABC test should be used to determine whether a worker is an employee or an independent contractor for the purposes of wage and hour laws. The court noted that the ABC test is a strict test and that all three prongs must be met in order for a worker to be classified as an independent contractor.
- N.J. Stat. Ann. § 34:15-36: This statute provides that employees who are injured in the course of their employment are entitled to workers' compensation benefits. The statute defines an employee as "every person in the service of another under any contract of hire, express or implied."
- Berkeyheiser v. Masterclean, Inc., 279 N.J. Super. 559 (App. Div. 1995): In this case, the New Jersey Appellate Division applied the ABC test to determine whether a carpet cleaner was an employee or an independent contractor for the purposes of workers' compensation. The court found that the carpet cleaner was an employee because the carpet cleaning service was within the usual course of the defendant's business, and the plaintiff did not have an independently established trade.
These cases provide persuasive authority for the court's determination that the plaintiff is an employee entitled to workers' compensation benefits.
The court in this case would rely on the following workers' compensation case law to support its decision:
- New Jersey Manufacturers Insurance Co. v. Howard, 86 N.J. 369 (1981): In this case, the New Jersey Supreme Court held that the Workers' Compensation Act should be liberally construed in favor of employees, and that the burden of proof is on the employer to show that an injured worker is not an employee.
- Tofani v. Lo Biondo Bros. Motor Express, Inc., 83 N.J. Super. 480 (App. Div. 1964): In this case, the New Jersey Appellate Division stated that the key inquiry in determining whether a worker is an employee or an independent contractor for the purposes of workers' compensation is whether the employer has the right to control the worker's performance of the work.
- Kertesz v. Korsh, 296 N.J. Super. 146 (App. Div. 1996): In this case, the New Jersey Appellate Division applied the ABC test to determine whether a courier was an employee or an independent contractor for the purposes of workers' compensation. The court found that the courier was an employee because the courier service was within the usual course of the defendant's business, and the plaintiff did not have an independently established trade.
These cases establish that New Jersey workers' compensation law is intended to provide broad coverage to employees and that the focus of the analysis is on the employer's control over the worker's performance of the work. Based on the court's determination that the plaintiff is an employee under the ABC test, the court would rely on this case law to support its decision that the plaintiff is entitled to workers' compensation benefits.
Again, not satisfied that the AI program was going in the appropriate direction, I prodded it further:
Q: Discuss how the right to control test and the nature of the work test can be applied to determine whether an employee is an independent contractor in a NJ workers' compensation case and what judicial options can be used in the analysis.
A: In a New Jersey workers' compensation case, courts will often rely on two tests to determine whether a worker is an employee or an independent contractor: the right to control test and the nature of the work test.
The right to control test focuses on whether the employer has the right to control the worker's performance of the work. If the employer has the right to control how the work is performed, including the means and methods used to complete the work, then the worker is likely an employee. This test takes into account various factors such as whether the employer provides the tools and materials necessary to complete the work, the degree of supervision over the worker, and the ability to terminate the worker's employment.
The nature of the work test, on the other hand, focuses on whether the worker's work is integral to the employer's business. If the worker's work is essential to the employer's business, then the worker is likely an employee. This test takes into account factors such as whether the worker is engaged in work that is an essential part of the employer's regular business operations, whether the worker's services are offered to the general public, and whether the worker is operating an independent business.
When applying these tests, the court will consider various factors and analyze the overall relationship between the worker and the employer. Other factors that courts may consider include the duration of the employment relationship, the method of payment, and whether the worker is free to work for other employers.
In making the analysis, the court may also rely on the ABC test, which was adopted by the New Jersey Supreme Court in Hargrove v. Sleepy's, LLC, 220 N.J. 289 (2015). The ABC test is a three-pronged test that requires the employer to demonstrate that the worker is (A) free from the control and direction of the employer, (B) performing work outside the usual course of the employer's business, and (C) engaged in an independently established trade, occupation, or business.
In sum, the right to control test, the nature of the work test, and the ABC test provide a framework for courts to analyze whether a worker is an employee or an independent contractor in a New Jersey workers' compensation case. The analysis is fact-specific and requires a careful examination of the overall relationship between the worker and the employer.
CONCLUSION
AI programs are not yet ready to replace hearing officials. Even though the AI program wasn’t maintaining a focus on workers’ compensation law, I am certain that the language model will be refined to analyze a database of workers’ compensation cases, regulations, and cases. The engineers can resolve that issue. More concerning is whether the language model can be trained for data accuracy and to rule out bias.
AI-generated legal opinions are not ready for prime time in the workers’ compensation arena. The programs certainly offer great potential for research and analysis as they become more refined.
RELATED INFORMATION
"We then characterize the profile of occupations that are more or less exposed based on characteristics of the occupation, suggesting that highly-educated, highly-paid, white-collar occupations may be most exposed to generative AI, and consider demographic variation in who will be most exposed to advances in generative AI. The range of occupations exposed to advances in generative AI, the rapidity with its spread, and the variation in which populations will be most exposed to such advances, suggest that government can play an important role in helping people adapt to how generative AI changes work." Felten, Edward W. and Raj, Manav and Seamans, Robert, Occupational Heterogeneity in Exposure to Generative AI (April 10, 2023). Available at SSRN: https://ssrn.com/abstract=4414065 or http://dx.doi.org/10.2139/ssrn.4414065
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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 five 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.
Updated: May 15, 2023
