A New Jersey appellate court recently overturned a legal malpractice ruling by clarifying when police officers on "extra duty" assignments become "special employees" under workers' compensation law. The October 2025 decision in Dutcher v. Stathis provides important guidance for determining employment status.
The Background
Officer John Dutcher was working an extra duty assignment directing traffic at a Black Rock construction site when he was struck by a company vehicle. When he tried to sue Black Rock for negligence, the company claimed he was their "special employee" - meaning workers' compensation would be his only remedy, barring a personal injury lawsuit.
The trial court agreed with Black Rock. But on appeal in a subsequent legal malpractice case, the New Jersey Appellate Division reversed, holding that Dutcher was not a special employee.
The Five-Factor Test
- Contract of hire - Did the employee make a contract (express or implied) with the special employer?
- Nature of work - Is the work essentially that of the special employer?
- Control - Does the special employer control the details of the work?
- Payment - Does the special employer pay the employee's wages?
- Hiring/firing power - Does the special employer have power to hire, discharge, or recall?
The court emphasized that no single factor is dispositive, and not all five must be satisfied. Courts must consider the totality of circumstances.
Why Dutcher Wasn't a Special Employee
The appellate court found several factors weighed against special employee status:
Black Rock's Business ≠ Police Work
Black Rock's core business was heavy highway construction - not police traffic control. Traffic direction is a fundamental police function. As the court noted, "Plaintiff retained control of how to direct the traffic and all supervision and discipline remained with the WPD."
Lack of Control Over Work Performance
Both Dutcher and his fellow officer testified they were "in charge of the traffic." Officer Cioni explained: "If [Black Rock is] doing something that we don't like, we would have them cease work but not the other way around."
The officers devised the traffic plan themselves "to make sure it was a safe working environment." Black Rock didn't direct how officers performed traffic duties.
No Direct Hiring or Firing Power
Black Rock couldn't hire or fire Dutcher directly. All extra duty assignments went through the WPD coordinator. Companies couldn't contact officers directly. Only the WPD police director could discipline or remove officers.
Payment Structure
The Township of Woodbridge paid officers for extra duty work and then invoiced Black Rock. Critically, officers were paid even if the outside company failed to pay. This showed the primary employment relationship remained with the Township.
Continued WPD Control
WPD policy stated that officers on extra duty are "considered an on-duty member" and "subject to departmental discipline and control." Officers had to:
- Sign in/out at police headquarters
- Use WPD patrol cars
- Wear uniforms
- Follow all WPD rules and regulations
Distinguishing Other Cases
The court distinguished this case from Kelly v. Geriatric & Med. Servs. and Antheunisse v. Tiffany & Co., where special employment was found. In those cases:
- Workers from temp agencies were fully integrated into the employer's operations
- They followed the employer's training, direction, and supervision
- They performed the employer's core business (nursing services, seasonal retail work)
By contrast, Dutcher performed police functions while Black Rock did construction - fundamentally different operations.
The Most Significant Factor
The court highlighted that in dual employment scenarios, "the most significant inquiry is... whose interest [was] the employee furthering at the time of the accident."
While Black Rock benefited from traffic control, Dutcher was furthering public safety - a core police function - not Black Rock's construction business.
Key Takeaways
For Employers:
- Hiring off-duty police for security/traffic control doesn't automatically create special employment
- Control over when and where work occurs differs from control over how work is performed
- The nature of your business matters - if the worker performs functions outside your core business, special employment is less likely
For Workers:
- Extra duty assignments don't necessarily change your employment status
- Maintaining ties to your primary employer (uniforms, equipment, supervision) weighs against special employment
- Professional discretion over how you perform work is significant
For Attorneys:
- The five-factor test requires careful, fact-specific analysis
- Don't rely on a single factor - consider the totality of circumstances
- In legal malpractice cases involving "suit within a suit," properly developing the factual record is critical
The Bottom Line
The Dutcher decision clarifies that skilled professionals performing their core functions don't automatically become special employees simply because they're working at another company's location.
When a police officer directs traffic at a construction site, he's performing police work - not construction. The officer's professional training, discretion, and continued accountability to the police department outweigh the construction company's general authority over when and where the work occurs.
This case serves as a reminder that workers' compensation law's "special employee" doctrine requires nuanced analysis. Courts must look beyond surface-level facts to examine who truly controls the work and whose business the employee is really performing.
This case illustrates the importance of having proper legal representation. The plaintiff's original attorneys failed to oppose the summary judgment motion, resulting in the dismissal of the personal injury claim. Only through a legal malpractice action and thorough factual development was the plaintiff able to establish that he should never have been deemed a special employee in the first place.
Related:
Dutcher v. PEDEIRO
Blog: Workers' Compensation
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