Opinion
DOCKET NO. A-5642-11T2
03-12-2015
DONALD H. WACHENFELD, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and WINCHESTER GARDENS, Respondents.
Gregory S. Schaer, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kelly Lichtenstein, Deputy Attorney General, on the brief). Respondent Winchester Gardens has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Hoffman. On appeal from the Board of Review, Department of Labor, Docket No. 299,418. Gregory S. Schaer, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kelly Lichtenstein, Deputy Attorney General, on the brief). Respondent Winchester Gardens has not filed a brief. PER CURIAM
Donald Wachenfeld ("Wachenfeld") appeals from a final determination of the Board of Review ("Board"), which found that his claim for unemployment compensation benefits was invalid because he was an independent contractor and not an employee, pursuant to N.J.S.A. 43:21-19(i)(6). We affirm.
Wachenfeld worked for Winchester Gardens, a retirement community, as a handyman and carpenter from 2002 to 2010. During this time, Wachenfeld maintained a registered business under the name of "Signature Finishing Company," which had its own banking account, business phone number, taxpayer identification number, liability insurance, and home improvement contractor license. When performing work for Winchester Gardens, Wachenfeld provided his own tools and vehicle. When Wachenfeld needed assistance on jobs, he would hire workers to assist him and paid them in cash, without any records.
On May 16, 2010, Winchester Gardens advised Wachenfeld that his services were no longer needed. He filed a claim for unemployment benefits on July 25, 2010. In a decision mailed September 2, 2010, a deputy director in the Division of Unemployment and Disability Insurance of the New Jersey Department of Labor determined that Wachenfeld failed to establish a claim because he lacked sufficient weeks and wages, as his employer, Winchester Gardens, did not make any contributions into the unemployment fund. Wachenfeld appealed the deputy director's decision to the Appeal Tribunal on September 7, 2010.
The appeals examiner ("examiner") affirmed the deputy director's decision and issued a decision that was mailed on July 7, 2011. The examiner concluded that Wachenfeld was an independent contractor because he "worked in an established trade, [c]arpentry, in his own business and therefore was and still is a fully [l]isenced [i]ndependent [c]ontractor." Thus, his claim was invalid, pursuant to N.J.S.A. 43:21-19(i)(6).
Wachenfeld then filed an administrative appeal with the Board, which issued a final decision mailed on April 16, 2012. The Board affirmed the Appeal Tribunal's decision.
Wachenfeld argues on appeal that employment or payment as an independent contractor is not sufficient to disqualify an individual for unemployment benefits. He therefore contends that he is eligible for unemployment compensation benefits as an employee, rather than an independent contractor, under the statutory "ABC" Test. N.J.S.A. 43:21-19(i)(6).
The scope of our review in an appeal from a final determination of an administrative agency is limited. The agency's decision may not be disturbed unless shown to be arbitrary, capricious, or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We "'can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994)).
Furthermore, "'[i]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (alteration in original) (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "We are obliged to defer to the Board when its factual findings are based 'on sufficient credible evidence' in the record." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 367 (2009) (quoting Brady, supra, 152 N.J. at 210).
In this case, the Appeal Tribunal and the Board found that Wachenfeld's claim was invalid because he was an independent contractor. The ABC Test is used to determine whether a worker is an employee or independent contractor for the purposes of unemployment compensation. This test provides:
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:
(A) Such an 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 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.
[N.J.S.A. 43:21-19(i)(6).]
Generally, prong A is referred to as the "control test," prong B as the "course-of-business or location-of-work test," and prong C as the "independent-business test." Phila. Newspapers, Inc. v. Bd. of Review, 397 N.J. Super. 309 (App. Div. 2007), certif. denied, 195 N.J. 420 (2008). The party who is challenging a worker's classification "must prove each of the three prongs of the ABC test." Ibid. (citing Carpet Remnant, Inc. v. N.J. Dep't of Labor, 125 N.J. 567, 581 (1991)). A worker must satisfy all three prongs in order to be classified as an independent contractor; if the worker fails to fulfill one prong, he or she will be classified as an "employee." Ibid.
The Board found Wachenfeld fulfilled prong A because, although Winchester Gardens specified the projects and work that Wachenfeld executed, he had control over his hours, wages, and the method used to complete the work. His work was also outside Winchester Garden's usual course of business, as it is a senior residence and he is a carpenter and handyman. The Board further found Wachenfeld fulfilled the final prong because his tax information and the existence of Signature Finishing Company's own bank account, license, and insurance, indicated that it operated as an established trade or business.
There is sufficient credible evidence in the record to support the Appeal Tribunal's and the Board's determination that Wachenfeld met the criteria set forth by each prong in the ABC Test and therefore was an independent contractor. Wachenfeld controlled the details surrounding the projects he completed at Winchester Gardens, such as hiring and paying additional workers. Moreover, while Winchester Gardens is primarily a senior residence and it is the company's responsibility to maintain and preserve the premises for its residents, carpentry and painting are not within Winchester Garden's "usual course of business." Finally, even though Wachenfeld may not have completed work for another company during or after working for Winchester Gardens, the circumstances surrounding Signature Finishing Company supports the Board's and Appeal Tribunal's determination that prong C is satisfied. Wachenfeld maintained a valid contractor license, liability insurance, and a bank account in Signature Finishing Company's name. This indicates the business existed independently of services provided to Winchester Gardens. See Carpet Remnant, Inc., supra, 125 N.J. at 585 (stating Prong C "calls for an enterprise that exists and can continue to exist independently of and apart from the particular service relationship" (citation and internal quotation marks omitted)).
Thus, the record fully supports the Appeal Tribunal's and the Board's determination. As the Board concluded, Wachenfeld was an independent contractor and his wages may not be used to establish a valid claim for unemployment compensation benefits, in accordance with N.J.S.A. 43:21-19(i)(6).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION