Part II Of The Case Of The Conscientious Chiropractor
D'Annuzio was a chiropractor hired by Prudential to review PIP claims and perform "pre-certs". He was required to work set hours every morning and to maintain a private practice which consumed more professional hours than he devoted to Prudential. He signed the consulting contract in the name of his professional association. He was assigned a desk with a personalized name plate, a cubicle, a Prudential phone extension, a Prudential email address, staff and supervisors. He was not allowed to remove files from the Prudential office and was to use Prudential letterhead for all correspondence.
He was trained in the use of Prudential computer programs and "pre-cert" procedures and was responsible for their implementation, and was evaluated on that basis. He was "essentially a cog in the machinery of Prudential's PIP Department."
D'Annuzio disagreed with Prudential's allegedly overly restrictive policies on PIP "pre-cert", and offered other unwelcome opinions. He was fired. D'Annunzio recites the accepted dogma regarding statutory interpretation. DiProspero v. Penn , 183 N.J. 477, 492 (2005). "It is not the function of this Court to 'rewrite a plainly-written enactment of the Legislature…." CEPA seems clear -- only "employees" are protected. As noted in the protest, the Legislature certainly knew how to spell "independent contractors" when it longed to. (See P.L. 2007, c.114, 7/13/07, criminalizing misclassification of construction worker employees as independent contractors).
When "literal application" of statutory language would "lead to results incompatible with the legislative design" the Court will instead interpret otherwise unambiguous language to serve the "apparent statutory purpose". New Capitol Bar & Grill Corp. v. Div. of Emp. Sec., 25 N.J. 155, 160 (1957) Indeed, "the letter gives way to the rationale of the expression" and the "spirit of the legislative direction prevails over the literal sense of its terms." Whether the Court expressly overrides the plain statutory language, or more often, as here, finds some hook to attach a supposed "ambiguity", New Jersey uses a strongly intent or public policy based method of statutory construction.
The Court denied summary judgment to Prudential on the "employee" issue. The courts must "look beyond the label attached to the relationship." The decision boiled down the cumbersome 12-part test set forth in Pukowski v. Caruso, 312 N.J. Super. 171 (App. Div. 1998) (LAD case) into a pocket-sized three part test: 1) employer control, 2) economic dependence, and 3) "functional integration" of the employer's business with that of the consultant (the "cog in the machinery" test). All three were present in D'Annunzio.
Stomel is a case of bad facts making bad law. The underlying CEPA violation is far more egregious than in D'Annuzio. The Camden City Municipal Prosecutor attempted to shake down Stomel for a campaign contribution as a condition to Stomel's re-appointment as Municipal Public Defender. Stomel immediately notified the U.S. Attorney and testified at the trial that put former mayor Milton Milan in prison. Three days later the City, outrageously, terminated Stomel's contract.
The Stomel decision properly preserved the plaintiff's sec. 1983 rights against the City. But the extension of CEPA protection to his case goes well beyond the expansive test announced in D'Annunzio. Stomel operated his Public Defender operations out of his private law offices and used his private staff rather than City employees to run the operation. "Functional integration" was nonexistent. Because Stomel was acting as attorney for third parties, he was not subject to the City's direction and control, unlike D'Annunzio. The $30,000 annual contract didn't create economic dependence. The pretext used to hold Stomel to be an "employee" was that he worked for the city on a "regular and continuous basis throughout the year".
Query: Is your twice-a-month bookkeeper, working on your office computer, or even his own office computer, a CEPA protected independent contractor? What about the once-per-week custodian who sorts your trash for re-cycling or handles your shredding? What about your HR consultant? Your office insurance agent? The engineer who consults for a contractor on several projects? Under D'Annunzio and more especially Stomel, any of these independent professional consultants who provide services for an employer on more than a sporadic basis is a potential CEPA claimant.
This article is for informational purposes only and does not constitute legal advice. For your specific situation, consult an attorney licensed in your jurisdiction.
About the Author
William H. Tobolsky is a proficient Cherry Hill debtor-creditor lawyer licensed to practice law in NJ and Pennsylvania. He is acclaimed as one of the Best Cherry Hill lawyers.
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