Supreme Court Decision Indicates That Application of the Joint Employer Doctrine in New Jersey Employment Law Cases is Question for Jury

New Jersey employment law recognizes the concept of “joint employers.”  Under this legal doctrine, an employee can have two employers even though he only gets paid by one.  The doctrine provides that when more than one entity acts as a person’s employer, both are jointly

responsible for complying with employee protection laws such as the New Jersey Law Against Discrimination and the Conscientious Employee Protection Act (known as CEPA or the New Jersey Whistleblower Law).

The Appellate Division of the Superior Court of New Jersey explained in the case of Pukowsky v. Caruso that the following factors are to be considered when determining whether the joint employer doctrine should cause a person or business to be a joint employer of an employee for employment law purposes.

(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) skill; (4) who furnishes the equipment and workplace; (5) the length of time in which the individual has worked; (6) the method of payment; (7) the manner of termination of the work relationship; (8) whether there is annual leave; (9) whether the work is an integral part of the business of the “employer;” (10) whether the worker accrues retirement benefits; (11) whether the “employer” pays social security taxes; and (12) the intention of the parties.

The Federal Courts recognize the joint employer doctrine as well.  For instance, the United States Court of Appeals for the Third Circuit, which hears appeals from the federal district courts in New Jersey, Pennsylvania, Delaware and the U.S. Virgin Islands, explained in the case of In re Enterprise Rent-A-Car that:

A joint employment relationship will generally be considered to exist ‘where the employees are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with another employer.’  Ultimate control is not necessarily required to find an employer-employee relationship … and even “indirect” control may be sufficient.

However, no New Jersey published appellate court opinion has expressly said whether this issue is for the jury alone, or whether it is for the judge to determine.  A recent New Jersey Supreme Court case may shed light on this question though.

Recently the New Jersey Supreme Court examined the question in the case of Pantano v. New York Shipping Association in the context of “whether a worker who negligently caused a plaintiff’s jobsite injury was a so-called ‘borrowed employee’ of the plaintiff’s own employer.”  While the test is not exactly the same as for determining whether a joint employer relationship exists in the employment law area, they are related.

The procedural background was complicated, but the issue was decided by a judge on a motion rather than by the jury.  The Supreme Court rejected this approach.  It affirmed “the traditional role of the jury as the finder of fact in resolving borrowed-employee [questions]…. The jury, not the trial judge, presumptively applies [this] hybrid multi-part test.”  It explained that:

In many instances, the general employer’s witnesses and proofs will clash with those presented and relied upon by the opposing side. Factual disputes about control and business advantage can readily turn on the assessment of the credibility of competing witnesses. Juries are well-suited to making those assessments, as they are for a host of other factual disputes entrusted to them at trial.

It held that only where the proofs are so one-sided that there is no genuine question of material fact can the judge decide the question is not sufficiently disputed for a jury to decide.

Thus, while the contexts were different, the Pantano opinion indicates that whether an entity is a joint employer should be a question for a jury to decide on the merits, rather than a judge on a pre-trial or post-trial motion.

 

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