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Rosado v. Crescenzi and Son Concrete, Inc.

2005-16154 (N.J. Dept. of Labor 2006)

WORKERS COMPENSATION; INDEPENDENT CONTRACTORS —There are two tests to determine whether an injured worker is an employee or independent contractor, namely the “control” test and the “relative nature of the work” test.

A worker was injured while working for a general contractor. The worker fell through the roof of a building being demolished by the contractor. The worker sought medical treatment and temporary disability benefits. The contractor refused, claiming that the worker was not an employee, but rather an independent contractor who was not entitled to workers’ compensation benefits. The contractor claimed that the injured worker originally was an employee who was paid by company check with withholding taxes taken out. However, the contractor claimed that, at the worker’s request, the worker became an independent contractor who was paid weekly, in cash. The worker claimed that even though he was paid in cash, his working relationship with the contractor never changed. He was driven to the work site in the company vehicle and only worked for the contractor and no one else. The Worker’s Compensation Court noted that in determining whether an injured worker is an employee or independent contractor, there are two tests: (a) the “control” test; and (b) the “relative nature of the work” test. Under the “control” test, a court must determine if the employer has the right to direct the manner in which the work was to be done. Under the “relative nature of the work” test, the question to be determined is if the nature of the work performed by the employee was an integral part of the regular business of the employer, and if the worker demonstrated “substantial economic dependence” on the employer. In this case, the Court found that, under either test, the worker was considered an employee. With respect to the “control” test, the Court found that the contractor personally drove the worker to the job sites on a daily basis and directed the worker’s activities, telling the worker what to do and when and where to do it. With respect to the “relative nature of the work” test, the Court found that the worker’s primary job function was to pour and surface concrete and that the contractor’s primary business was concrete installation. Therefore, the Court found that the worker’s job was an integral to the contractor’s business. The Court also found that, under the “substantial economic dependence” component of the test, the worker had no other source of income other than income derived from his work for the contractor. Therefore, the Court found that the worker was an employee and was entitled to receive medical and temporary disability benefits.


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