JOHN DUTCHER, v. PEDRO PEDEIRO and BLACK ROCK ENTERPRISES, LLC,SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, DOCKET NO. A-1088-16T3
Were you injured on your job?
Who were you working for at the time?
Who’s employee injured you?
Were you injured by a co-worker?
Do you know who your co-worker was at the time you were injured on the job? Are you a “Special Employee”? These are all important questions that need to be asked if and when you are injured on the job!!
Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark.
In this case a town employee, a police officer, was being used by a construction crew for traffic control and management at a street construction job. While on assignment at the construction sight he was injured when a co-employee struck him caused injury. The specific casts are as follows:
- On the day of the accident, plaintiff “reported to the [s]ite, accepted instruction and direction, complied with [defendant’s] rules, requirements, and policies, in the performance of work on behalf of [defendant].
- On the date of plaintiff’s accident, he “performed work on behalf of [defendant] at [defendant’s] request, and under [defendant’s] direction and control” from 8:00 a.m. until 4:00 p.m.
- During that time, plaintiff reported to defendant’s supervisor. Further, defendant’s foreman directed plaintiff as to where and how to direct traffic. According to the Managing Member, defendant “had sole control over the details of the work performed by [plaintiff,] . . . [and] would instruct [p]laintiff where and how to direct traffic, depending on the progress and status of the milling work[.]”
- The Township “maintained no control, direction, or supervisory authority over [p]laintiff’s work at the [s]ite.” Further, “[defendant] had the power and authority to recall [plaintiff] for his services, or discontinue his services if they were no longer needed or were found by [defendant] to be unsatisfactory.” Defendant admitted Pedeiro was the employee in the construction vehicle with a “bucket” that allegedly struck plaintiff.
- Defendant reimbursed the Township for plaintiff’s wages. The Managing Member averred in an affidavit the Township would send defendant invoices enumerating the hours plaintiff worked “along with the fees and hourly wages charged.” Defendant would then pay the Township for plaintiff’s services.
- In addition to the pleadings, defendants submitted a letter from the third party administrator for Central Jersey Joint Insurance Fund, the workers’ compensation program of which the Township was a member. The third party administrator sent the letter to defendant’s insurer.
- The letter stated that because plaintiff “was working on behalf of both the Township of Woodbridge and [defendant], [the] matter [was] a dual employment case of which [defendant was] responsible for 50% of all paid on the case.”
In New Jersey, you are considered a “special employee” and hence, work for two employers at the same time based on the following legal principals: The New Jersey Workmen’s Compensation Act, N.J.S.A. 34:15-1 to -69.3, provides employees with guaranteed recovery from their employers for workplace injuries, in exchange for a waiver of the right to sue their employer. N.J.S.A. 34:15-8. For purposes of workers’ compensation, a worker may have two employers, “both of whom may be liable in compensation.” Hanisko v. Billy Casper Golf Mgmt., 437 N.J. Super. 349, 360 (App. Div. 2014) (quoting Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989)). In such situations, recovery of workers’ compensation from one employer “bars the employee from maintaining a tort action against the other for the same injury.” Ibid. (quoting Anthenuisse, supra, 229 N.J. Super. at 402).
A “special employment relationship” where the “special employer” is also responsible for worker’s compensation exists “[w]hen a general employer lends an employee to a special employer,” and “(a) [t]he employee has made a contract of hire, express or implied, with the special employer; (b) [t]he work being done is essentially that of the special employer; and (c) [t]he special employer has the right to control the details of the work.” Blessing v. T. Shriver & Co., 94 N.J. Super. 426, 430 (App. Div. 1967).
In determining whether a special employee relationship has developed, courts also consider “whether the special employer:
(1) pays the lent employee’s wages, and
(2) has the power to hire, discharge or recall the employee.” Ibid. (citation omitted).
When a court weighs these five factors to determine whether a special employment situation exists, “[n]o single factor is ‘necessarily dispositive, and not all five must be satisfied in order for a special employment relationship to exist.'” Walrond v. Cnty. of Somerset, 382 N.J. Super. 227, 236 (App. Div. 2006) (quoting Marino v. Ind. Crating Co., 358 F.3d 241, 244 (3rd Cir. 2004)). “Generally, however, it is believed that the most significant factor is the third: whether the special employer had the right to control the special employee.” Ibid. (citing Volb v. G.E. Capital Corp., 139 N.J. 110, 116 (1995)).
The court considered the facts in this case against the 5 factors listed above and found:
- As to the first factor, though defendant contracted directly with the Township for the assignment of police officers for Extra Duty Services, “[t]he consent [for contracting] may be implied from the employee’s acceptance of the special employer’s control and direction” of the employee. Larson, supra, § 67.02. Furthermore, where an “employee ‘knew he would be hired out to special employers, and accepted such employers just as he accepted the general employer . . . [the employee] intended to have two employers[.]'” Blessing, supra, 94 N.J. Super. at 434 (quoting Chickachop v. Manpower, Inc., 84 N.J. Super. 129, 137 (Law Div. 1964)). Here, plaintiff signed up for Extra Duty Services knowing the Township would hire him out to a second employer and would expect him to perform his duties for that employer. Therefore, as asserted by defendants, “[p]laintiff reported to the [s]ite in acceptance of the assignment as an Extra Duty Officer to perform work on behalf of [defendant].”
- The second factor requires “the work being done is essentially that of the second employer.” Larson, supra, § 67.01. Defendants asserted “[p]laintiff directed traffic . . . for [defendant’s] benefit.” In that regard, when requesting officers from the Township, defendant had “specified exactly how many officers [and] patrol cars were needed, the time, location, and date[s]” they were needed, and “exactly what services were required and what duties and responsibilities were expected to be performe[d].” Plaintiff was directing traffic for the benefit of defendant as defendant performed milling services on county roads. The need for someone to direct traffic was directly related to defendant’s work, and as such is essentially the work of defendant. Plaintiff was directing traffic for the benefit of defendant as defendant performed milling services on county roads. . See Domanoski v. Borough of Fanwood, 237 N.J. Super. 452, 453-54. (determining an off-duty police officer assigned to work for a private business had dual employment with the private business and the Police Department, even though his assignment “was serving . . . private interest[s] as well as the public interest”).
- The third and perhaps most significant factor is that the special employer has the right to control the details of the work. Here, according to defendants’ undisputed statement of facts, “[p]laintiff directed traffic in accordance with [defendant’s] request, directions, and for [defendant’s] benefit. During this assignment, [defendant] had sole control over the [p]laintiff with respect to directions, instructions, and ability to discontinue his services if they were no longer needed or were unsatisfactory.” Upon arrival at the site, plaintiff would check in with defendant’s supervisor. Defendant also “had a foreman on site who directed [plaintiff] as to where and how to direct traffic.” The directions would “depend on the progress and status of the milling work [being] performed[.]” These facts adequately demonstrate control over plaintiff’s work. While defendant may not have directly controlled exactly how plaintiff chose to direct traffic, defendant did have adequate control over when and where plaintiff performed his services.
- The next factor is whether the special employer “pays the lent employee’s wages[.]” Blessing, supra, 94 N.J. Super. at 430. In this case, “[f]ollowing the completion of the assignment, [defendant] paid [p]laintiff’s wages indirectly through payment of an invoice fee to the Township.” Plaintiff argues this does not satisfy the requirement that the special employer pay the wages, because the special employer is paying the Township, who later pays plaintiff. However, the special employer does not need to directly pay the special employee for a special employment relationship to exist. See Kelly v. Geriatric & Med. Servs., Inc., 287 N.J. Super. 567, 577 (App. Div.) (finding direct payment would be more persuasive, but is not necessary for a finding of special employment), aff’d 147 N.J. 42 (1996). Particularly telling in this arrangement is the note at the bottom of the invoices from the Township to defendant: “Please pay on time. The officers do not get paid until I receive the payment from you.”
- Lastly, the special employer must have “the power to hire, discharge or recall the employee” in order for there to be a special employment relationship. Blessing, supra, 94 N.J. Super. at 430. Defendant had such authority as to its project. Defendant was able to “discontinue [plaintiff’s] services if they were no longer needed or were unsatisfactory.”