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CLIENT ALERT - April 9, 2006 | |
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NEW JERSEY WHISTLEBLOWER STATUTE MAY PROTECT INDEPENDENT CONTRACTORS Dear Clients and Friends: On February 23, 2006, the Appellate Division of
the Superior Court of New Jersey ruled that an individual who may be
defined as an “independent contractor” under common law may still be
entitled to bring a claim against an employer under the definition
of an “employee” in the New Jersey’s Whistleblower statute. In
D’Annunzio v. Prudential Ins. Co., a chiropractor hired by an
insurance company to review treatment plans was allowed to proceed
with his whistleblower claim even though his contract with the
company expressly provided that he was an independent contractor.
The court held that the contract was not determinative of his status
under CEPA, which protects “any individual who performs services for
and under the control and direction of an employer.” The court stated, “… CEPA’s definition of
‘employee’ not only has the capacity to include workers who may be
classified at common law as independent contractors but that the
definition should be construed broadly and principally focus on the
‘control and direction’ factor expressly mentioned in CEPA. The
court stated that the following factors provide an appropriate guide
for identifying those workers who fit CEPA’s definition of
“employee”: (1) the employer’s right to control the means and manner
of the worker’s performance; (2) the kind of occupation – supervised
or unsupervised; (3) who furnishes the equipment and workplace; and
(4) the manner of termination of the work relationship (whether the
employer has the ability to terminate the worker’s relationship in a
manner similar to the termination of an at-will employee).
Furthermore, the court declared that courts are to “broadly and
liberally apply the ‘control and direction’ test prescribed in [CEPA],”
as applied in this case. The court admitted that CEPA was not intended to
protect all individuals with a working relationship with an
employer, but only those vulnerable to retaliation. Clarifying this
point, the court stated, “[S]ome workers are contractually
positioned in a way that frees them from fear of termination or
other forms of retaliation, and have no critical need for CEPA’s
protections.” The court provided as an example of someone that CEPA
does not protect, a tenured tax assessor because he could only be
removed from office by the Director of the Division of Taxation. If you have any questions with regard to the application of this case to your Company or with respect to any other labor and employment law matter, please do not hesitate to contact Steven Harz, Esq. (201) 342-6000, or via email at sharz@hertenburstein.com.
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CLient Alerts |
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Labor/Employment March 19, 2007 Real Estate |
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