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Casual employment – Martin v. Pollard

By on July 1, 2008 in Key Defenses with 1 Comment

Casual employees are excluded from receiving benefits under N.J.S.A. 34:15-36. The present definition of casual employment embraces two concepts, depending on whether the services are given in relation to a business, or whether they are unconnected to a business. If the services are rendered in relation to a business, they are casual if they are rendered only by chance or by pure accident. If they are not rendered in relation to a business, they are casual if the employment is not regular, periodic or recurring.

There is often a fine line between this defense and the independent contractor defense, which will be discussed below. The important thing to remember is that if the worker is a casual employee, the case must be dismissed. The court has no jurisdiction over the claim because the services were not performed by an employee, and only employees are eligible for compensation benefits. It does not matter that the defense of casual employment may not be raised right away. The carrier or third-party administrator may have accepted the claim and may have paid workers’ compensation benefits, but if a judge finds that the worker is a casual employee the case must be dismissed. This is what is meant by the legal adage that jurisdiction is always in issue in a compensation case. That means that the defense can always raise the issue of lack of jurisdiction at any time in the case.

The best case on casual employment is Martin v. Pollard, 271 N.J. Super. 551 (App. Div.), certif. denied, 137 N.J. 307 (1994) because this is the case that discusses the two concepts related to the term. In that case Mr. Pollard owned two houses on the same street. One was rented to Donna Bartha, who was the live-in companion of Mr. Martin. The other house was a summer cottage. In June 1991 Pollard hired Martin to paint the summer cottage. There was no formal contract, but there was a verbal agreement that Martin would keep track of his hours, and Pollard would pay him $10 per hour when the job was finished. Pollard provided all the material except for the ladder.

Sometime later Pollard hired Martin to apply a water sealant to the exterior of the house Bartha was renting, again promising to pay $10 per hour. The agreement was informal once again, with no set hours for work. The only difference was that Pollard for this job only supplied the water sealant, while Martin supplied the brushes, ladder and other materials.

Martin had a full-time job working for Bartha in her residential cleaning service, so he worked on the houses whenever he could find the time. One day while doing the water sealant job he lost his footing and fell from the roof, fracturing his femur. He had expended about 14 hours on the job over a period of one week at the time of the accident.
The workers’ compensation judge found that Martin was not an independent contractor and then went on to find that the services of Martin were rendered in connection with a business. The court believed that Pollard was in the business of renting properties. The court did not think the work was by chance or accidental: thus employment was found. However, the Appellate Division disagreed with this view and reversed. The opinion of the court is very important in a number of respects:

a. First, the court noted that there is a thin line between casual employment and independent contractor status, and that it really did not make a great deal of sense to try to decide whether Martin was a casual employee or an independent contractor. If he is either, he loses. For adjusters, therefore, it is helpful to raise both issues in situations where employment is at issue, recognizing that there is often not much difference between the two defenses and if either defense is upheld by the judge the case will be dismissed.

b. Second, the appellate court viewed differently from the compensation court the question of whether Pollard was in the business of renting properties, saying that even if that were true, it would be very difficult for Martin to argue that having a house sealed or painted is any more integral to the rental business than it would be to call a plumber to fix a broken pipe. In other words, just because one is in the business of renting property does not mean that anyone one hires to do a one-time job automatically becomes an employee.

c. The court in a case like this has to look at the whole picture. The appellate court concluded that Martin really only did work for Pollard on an irregular basis. It observed that Martin chose the time he would work and the manner in which it would be done. It concluded that Martin was not economically dependent on Pollard.

d. Payment by the hour is not inconsistent with the status of an independent contractor. The court commented on this point, and it is useful to remember this comment when counsel for the petitioner raises the hourly method of payment as alleged evidence of employment status.

The casual employment defense is particularly important in these days where many people have part-time jobs and do occasional secondary work for others. When injured they may bring a claim against the homeowners’ coverage of the alleged employer. From this case it is clear that homeowners do not become employers every time they hire someone to do a service in the home. These workers are either going to be considered casual or independent in most cases.

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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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There is 1 Brilliant Comment

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  1. Avatar Daniel K. Simmons, Esq. Toms River says:

    What if the purported “employer” took out a permit from the municipality in which that employer named himself as the “General Contractor” on the renovation of his own house? Does that get the injured purported “employee” (e.g., a painter) any closer to compensability?

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