A Capehart Scatchard Blog

Court Deems Nanny “Special Employee” And Therefore Barred From Suing Homeowners for Negligence

By on October 30, 2014 in Uncategorized with 1 Comment

Nilda Zulueta owned Artime, Inc, doing business as Cardel Jewelers, in New York City.  She employed plaintiff Mirtala Pineda to clean the jewelry store and Zulueta’s home in North Bergen, New Jersey, after Pineda had immigrated to the United States from El Salvador in 1990.

In 2004, Zulueta directed Pineda to work full-time at the home of her son, Hector Zulueta, as a nanny and housekeeper.  From 2004 to 2011, Pineda worked Monday through Friday from 8:30 a.m. to 5:00 p.m. in Hector Zulueta’s home doing cooking, cleaning and laundry.  She would also pick up in the yard after the family dog.  Hector Zulueta and his wife directed Pineda’s activities in their home.

On weekends, Pineda cleaned the jewelry store and sometimes Nilda Zulueta’s home.  Even after Pineda started working in Hector Zulueta’s home, Pineda was paid by Artime, Inc.  Hector Zulueta never paid Pineda to do her job as nanny or housekeeper.

On January 27, 2011, Pineda was in the backyard of Hector Zulueta’s home, picking up dog waste, when she slipped and broke her ankle.  She filed a workers’ compensation claim in New York against Artime, Inc. and eventually collected benefits.  She also filed a workers’ compensation claim against Hector Zulueta and his wife in New Jersey but agreed to dismiss that claim in August 2013.  She filed a civil law suit against Hector Zulueta and his wife in New Jersey for negligent maintenance of their property.

Hector Zulueta and his wife argued that the civil law suit was barred because they employed Pineda; hence, her exclusive remedy was in workers’ compensation court.  The trial court agreed, and Pineda appealed.  The Appellate Division first noted that an employee may have more than one employer and observed that joint employment is rather common in New Jersey. This situation, however, bore a closer resemblance to “special employment,” where an employee is borrowed from another employer.

The court examined the case of Blessing v. T. Shriver & Co., 94 N.J. Super. 426 (App. Div. 1967) to determine if Pineda was the special employee of Hector Zulueta.  In that case the court examined whether the following factors applied:

  1. Does an express or implied contract exist between the special employee and the special employer?
  2. Is the work that is being done essentially that of the special employer?
  3. Does the special employer have the right to control the details of the work?
  4. Does the special employer pay the employee’s wages?
  5. Does the special employer have the power to hire, release, or re-hire the employee?

In this case the Appellate Division found that four factors favored special employment, and it said that it is not essential that all five factors must apply under New Jersey case law.  On the first factor, the court said that there was evidence of an oral agreement with defendants.  Pineda took direction from Hector Zulueta and his wife for many years.

Pineda argued that the second factor was not met because Hector Zulueta and his wife are not business owners.  The court said that one does not need to be a business entity to employ others to perform services.  Pineda took care of the Zulueta children and that was her main job Monday through Friday.

The court also believed the third factor was met because Pineda took direction from Hector Zulueta and his wife during the week, even if they did not tell her exactly how to cook or clean.  The court noted that Nilda Zulueta certainly did not provide direction to Pineda when she was working as a nanny for her son.

The court acknowledged that the fourth factor was missing because Hector Zulueta and his wife did not pay Pineda.  Artime, Inc., owned by Hector’s mother, paid her.  The court did not raise the issue of whether Hector Zulueta or his wife violated any tax or employment laws in so doing. “We leave it to others, if appropriate, to address the lawfulness of defendants’ employment of plaintiff and their potential liability for income and other taxes that may have arisen as a result of the facts we have described.”

The fifth factor was also disputed, as Pineda argued that there was no proof that Hector Zulueta and his wife could fire Pineda.  The court said, “There is no evidence that plaintiff was granted lifetime employment without any right retained by defendants to terminate her services in their home and with their children.”

Since four of the factors existed under the special employment test, the court ruled that plaintiff was a special employee of Hector Zulueta and his wife and therefore affirmed the dismissal of her law suit.  The case can be found at Pineda v. Hector Zulueta and Sheila Zulueta, A-1552-13T4 (App. Div. October 23, 2014).

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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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