The New Jersey Workers’ Compensation Act requires employers to insure workers by providing employees with medical treatment, and temporary/permanent disability payments for job-related injuries or illnesses. In exchange for benefits, employees are subject to a workers’ compensation bar, which precludes them from suing their employer in court for economic loss and “pain and suffering” damages caused by work related injuries. The workers’ compensation bar extends to “special employees” of an employer.
In order to determine whether a special employer-employee relationship exits, the Appellate Division outlined a five-prong analysis in Kelly v. Geriatric and Medical Service, Inc., 287 N.J. Super 567 App. Div 1996. Specifically, the court must consider whether (1) the employee has made a contract of hire, express or implied, with the special employer; (2) the work being done by the employee is essentially that of the special employer; (3) the special employer has the right to control the details of the work; (4) the special employer pays the employee’s wages; and (5) whether the special employer had the power to hire, discharge or recall the special employee. No single factor is dispositive, and not all factors must be met in order to establish a special employment relationship. However, it has been found that the third factor is the most significant factor. It has yet to be determined by the Appellate Division as to how many “special employers” an individual may have at one time.
On July 26, 2019, Callahan & Fusco, LLC moved for summary judgment on behalf of both Hankook Tire America Corp. and Kann Enterprises, Inc., in the Superior Court, Middlesex County, before the Honorable Andrea Carter, J.S.C., in the matter of Ramos v. Infante, et al., MID-L-001544-17. In Ramos, the plaintiff was assigned for temporary employment with Kann by a separate staffing agency – an entity which ultimately provided plaintiff with workers’ compensation benefits to the plaintiff.
We argued that an implied contract for hire existed between the plaintiff and both Kann and Hankook, as the plaintiff testified during his deposition that he voluntarily presented at the Hankook warehouse on a daily basis to perform his work, an argument which had been previously upheld in by the Appellate Division in Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399 (App. Div. 1988). We argued that the second prong was met as the work being performed by plaintiff was that of Kann and Hankook as Kann’s work was that of a staffing agency to place individuals in support roles for Hankook, and plaintiff was ultimately performing required labor for Hankook inside of the warehouse. Most importantly, we showed though plaintiff’s own deposition testimony that his direct supervisor at the warehouse was a Hankook supervisor, and that he would be required to take directions from a Kann employee while working. Plaintiff’s work schedule was controlled by a Hankook manager, and his daily instructions were provided by a Hankook supervisor. As for the fourth prong, we argued that there was indirect payment made to plaintiff which streamed from Hankook and Kann, and then ultimately went to his employer who paid him. Finally, based upon deposition testimony of the defendants, it was clear that if the plaintiff was no longer wanted to work at the Hankook warehouse, either Kann or Hankook could make the request to remove plaintiff and his employment at the warehouse would be terminated.
We successfully argued that both Hankook and Kann met the five-prong test set out in Kelly, and Judge Carter granted our motion for summary judgment on behalf of both defendants — essentially extending the special employer designation to both Hankook and Kann. It is yet to be seen whether the plaintiff will appeal the decision. But for the meantime, an argument can be made that multiple parties can be classified as an individual’s special employer at the same time.