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Express Courier Service v. Board of Review

A-617-02T1 (N.J. Super. App. Div. 2004) (Unpublished)

UNEMPLOYMENT BENEFITS; INDEPENDENT CONTRACTORS—Someone who works only for one company, is given directions by that company for each assignment, does not solicit for independent business, and is paid by the company as a given rate, is an employee for unemployment and temporary disability benefit purposes.

A man began doing delivery and courier work for a courier company under a written independent contractor driver’s agreement. After about seven months, he became disabled and stopped working. He then filed a claim for temporary disability benefits under the State plan and a month later was cleared to return to work by his doctor. The company brought suit, arguing that the individual should not have been treated as an employee for the purposes of receiving benefits. It testified that the man worked from home, used his own car, and paid for all of his own expenses. The man testified that he did not deliver for anyone else, and would sit by his phone waiting to respond to calls from the courier company to pick up and deliver its customers’ packages. The customers paid the company, which, in turn, paid him. The man did not seek customers through advertising, did not work under any trade name, and did not own his own business.

The Appeal Tribunal held that the man was an employee because he worked only for the courier company, was given directions by the company for each assignment, did not solicit other business, and was paid by the company at a given rate. New Jersey law provides that an individual who performs services for an enterprise is deemed an employee unless the individual has been, and will continue to be, free from the enterprise’s control over the performance of the service; and such service is either outside the usual course of business; and the individual is customarily engaged in an independently established trade or business.

The Appellate Division affirmed the finding of an employer-employee relationship. It noted that the man was entirely dependent upon the company’s direction and control as to when and where to pick up the courier company’s customers’ deliveries and where to take them; he was paid a rate established by the company; he made the deliveries within the usual course of the company’s business; he was not engaged in an independently established trade or business; and, he did not advertise his business.


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