Opinion
DOCKET NO. A-1847-12T3
06-20-2014
ABS GROUP SERVICES, INC., Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and ROBERT PRICE, Respondents.
Robert A. Suarez (Ropers Majeski Kohn & Bentley), attorney for appellant ABS Group Services, Inc. Costello & Mains, P.C., attorneys for respondent Robert Price (Deborah L. Mains, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Peter H. Jenkins, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Nugent.
On appeal from the Board of Review, Department of Labor, Docket No. 338,577.
Robert A. Suarez (Ropers Majeski Kohn & Bentley), attorney for appellant ABS Group Services, Inc.
Costello & Mains, P.C., attorneys for respondent Robert Price (Deborah L. Mains, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Peter H. Jenkins, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Appellant ABS Group Services, Inc. (ABSG), appeals from a final agency determination of the Board of Review, Department of Labor (Board). The Board affirmed the Appeal Tribunal's decision, which rejected ABSG's claim that claimant Robert Price is an independent contractor for ABSG and not ABSG's employee within the meaning of N.J.S.A. 43:21-19(i)(6). As a consequence, ABSG is liable for Price's temporary disability claim under New Jersey's Temporary Disability Benefits Law. N.J.S.A. 43:21-25 to -71; N.J.S.A. 43:21-37; N.J.S.A. 43:21-7(e)(3)(B).
Pursuant to N.J.S.A. 43:21-37, temporary disability benefits provided by the state plan are available to a "covered individual who on the date of the commencement of a period of disability is not entitled to disability benefits under an approved private plan." N.J.S.A. 43:21-37.
The Unemployment Compensation Law (UCL), N.J.S.A. 43:21-1 to -71, provides that employment is "service performed on or after January 1, 1972 . . . for remuneration or under any contract of hire, written or oral, express or implied." N.J.S.A. 43:21-19(i)(1)(A). The UCL has been interpreted as establishing a "presumption . . . that all services performed by an individual for remuneration," with the exception of those excluded under the terms of N.J.S.A. 43:21-19(i)(7), are employment unless the putative employer meets its burden of establishing that the services were not employment under each of three standards that comprise the so called ABC Test. Philadelphia Newspapers, Inc. v. Board of Review, 397 N.J. Super. 309, 319 (App. Div. 2007), certif. denied, 195 N.J. 420 (2008); see Carpet Remnant Warehouse v. N.J. Dep't of Labor, 125 N.J. 567, 571 (1991) (indicating that the question whether carpet installers are employees or independent contractors depends on whether the employer is able to satisfy the criteria of "the so called ABC test"). The ABC test is set forth in N.J.S.A. 43:21-19(i)(6)(A)-(C) as follows:
Services performed by an individual for remuneration shall be deemed to be employment subject to this chapter ([N.J.S.A.] 43:21-1 to -71]) unless and until it is shown to the satisfaction of the division that:The three parts of "the ABC Test are commonly referred to as the 'control test,' the 'course-of-business or location-of-work test,' and the 'independent-business test,' respectively." Philadelphia Newspapers, supra, 397 N.J. Super. at 320.
(A) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and
(B) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
(C) Such individual is customarily engaged in an independently established trade, occupation, profession or business.
ABSG argues that the Board of Review and Appeal Tribunal ignored relevant evidence in the record, and thus arbitrarily, capriciously, and unreasonably concluded that ABSG failed to meet its burden of establishing Price's status under all three prongs of N.J.S.A. 43:21-19(i)(6)(A)-(C). The Board and Price submit that the Board properly determined ABSG failed to prove any of the three essential criteria.
Having reviewed the decision of the Appeal Tribunal and the decision of the Board agreeing with and affirming it, we conclude that the Board's determination on the "course-of-business or location-of-work test" is inconsistent with the record. Philadelphia Newspapers, supra, 397 N.J. Super. at 320. Although the Appeal Tribunal found that the inspection services rendered by Price were in the usual course of ABSG's business, there was no dispute that ABSG established the alternative that Price performed the service he rendered for remuneration outside of all the places of business of ABSG. With that undisputed showing, the agency's determination that ABSG failed to establish one of the two alternative criteria provided in (B) cannot be sustained. It is well-settled that this court may not affirm an agency decision that lacks adequate support or is inconsistent with the record. Philadelphia Newspapers, supra, 397 N.J. Super. at 318.
Our inquiry cannot end with the determination that ABSG established part (B) of the ABC test. In short, the agency's erroneous finding on one part of the ABC test does not mean that ABSG is entitled to relief.
Having considered the record and the agency's decisions, we have concluded that the agency's findings on parts (A) and (C) of the ABC test are inadequate to permit review. "[I]t is a fundamental of fair play that an administrative judgment express a reasoned conclusion. A conclusion requires evidence to support it and findings of appropriate definiteness to express it." New Jersey Bell Tel. Co. v. Communications Workers of Am., 5 N.J. 354, 375 (1950). This court must "defer to and not reverse an agency decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole." Bailey v. Board of Review, 339 N.J. Super. 29, 33 (App. Div. 2001). But we cannot afford that deference where it is not at all clear that the agency considered the facts in light of the legal issues and explained its reasons for the determination. Ibid.
In this case, the agency's decisions, viewed individually and collectively, do not permit us to identify with any certainty the facts upon which the agency relied in determining that ABSG failed to establish its entitlement to relief under either the "course of business" or the "independent-business test." Because neither the Appeal Tribunal nor the Board expressly addressed the evidence that supports its conclusions about either part (A) or (C) of the ABC test, a remand is required. In order to resolve the case, this court would need to find the facts and apply the legal standards the agency is charged with enforcing in the first instance. But application of the ABC test implicates the agency's expertise, and for that reason we deem it inappropriate to exercise our original jurisdiction. Rudbart v. Board of Review, 339 N.J.Super. 118, 127 (App. Div. 2001). Accordingly, we remand.
Within ninety days of the date of this decision, the Board shall complete the matter on remand and file its decision with the Clerk of the Appellate Division. Upon receipt of the Board's decision, the clerk will issue an expedited briefing schedule. Our decision should not be understood to preclude the Board from exercising its discretion to reopen the record.
Remanded for further reconsideration in conformity with this opinion; jurisdiction is retained.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION