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Casual Employment and Independent Contractor Defenses Often Overlap

Many clients ask what the difference is between the defense of independent contractor and casual employment.  The truth is that the defenses are very similar, and one important case, Berkeyheiser v. Mollie S. Woolf, 71 N.J. Super. 171, (App.Div. 1961), illustrates this point.

The case involved a man who worked full time for St. Regis Paper Company as a pipefitter five days a week, seven and one half hours per day.  From time to time, he performed some odd jobs for Mollie S. Woolf, who owned several buildings. He repaired some doorbells in buildings in 1956.  In September 1957, he repaired a damaged ceiling in a building.  He also installed some shields over doorbells to prevent children from unnecessarily pushing on them.  In November 1957, he repaired apartment windows that had been damaged and installed two window sashes in an apartment.  In February 1958 he repaired some outlets and worked all day.

On July 12, 1958, Mr. Berkeyheiser borrowed a drill from his son and started to install an electric outlet for a refrigerator in the home of Mollie S. Woolf.  The drill struck a live wire and caused injury to his right eye and facial scars.  He filed a workers’ compensation claim.

The facts showed that Mr. Berkeyheiser did not hold himself out to the general public as a repair person.  He had only done some repair work for one other person besides respondent.  The respondent would provide the equipment, of if she did not have the equipment, Berkeyheiser would purchase it and bill respondent.  He was paid by the hour and there was no withholding from his pay.

The Judge of Compensation found petitioner to be an independent contractor, and the County Court affirmed.  Berkeyheiser appealed and argued that the work he performed was essential to the maintenance and operation of respondent’s business, the so-called relative nature of the work test.

The Court said, “Overlapping between casual employees and independent contractors is common, and it is not unusual that a petitioner falls into either or both unprotected classes.”  The Appellate Division held that there a number of factors arguing against employment here.  Petitioner had a regular and permanent full-time job at a substantial salary.  He had no expectation of regular and steady employment by the respondent and only worked when the need arose.  He did not perform repairs on a scheduled basis but would choose the times when he would appear to make repairs.

We conclude that the character of the work was such as to preclude petitioner from the right to compensation under the Workers’ Compensation Act.  We have accepted all his factual contentions as true, but they do not establish the essential existence of an employer-employee relationship.  Whether he was more a casual employee or an independent contractor need not be decided.  There is no merit to petitioner’s claim that would justify an award, either within the letter or spirit of this remedial legislation.

This case is useful for practitioners in dealing with these two very close cousins:  the independent contractor defense and the casual employee defense.

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About the Author

About the Author:

John H. Geaney, Esq. is a Shareholder and Co-Chair of Capehart Scatchard's Workers' Compensation Group. Mr. Geaney 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 also distributed by NJICLE. If you are interested in purchasing “Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers,” 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. He is one of two firm representatives to the National Workers’ Compensation Defense Network.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School.

Mr. Geaney was selected to the “New Jersey Super Lawyer” list (2005-2017, 2021 in the area of Workers’ Compensation). Only 5% of attorneys are selected to “Super Lawyers” through a peer nominated process based on independent research and peer evaluation. The Super Lawyers list is issued by Thomson Reuters. For a description of the “Super Lawyers” selection methodology, please visit https://www.superlawyers.com/about/selection_process.html

For the years 2022-2024 Mr. Geaney was selected for inclusion in The Best Lawyers in America® list in the practice area of Workers’ Compensation Law - Employers. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America® methodology can be viewed via their website at https://www.bestlawyers.com/methodology.

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Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Hamilton, 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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