N.J. Admin. Code § 18:35-7.1

Current through Register Vol. 56, No. 11, June 3, 2024

Section 18:35-7.1 - Employee defined

(a) For the purposes of 18:35-7.2, the term "employee" means every individual performing services if the relationship between the individual and the person for whom he or she performs such services is the legal relationship of employer and employee. The term also includes officers and employees, whether elected or appointed, of the United States, a state, territory, Puerto Rico, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing.

(b) When determining whether an individual is in an employer-employee relationship, relevant factors shall be considered, including the following:

1. The relationship which the parties believe they have created;

2. The extent of control exercisable by the person receiving the benefit of the services over the manner and method of performance. It is not necessary that the employer actually direct or control the manner of performance, but it is sufficient if he or she has the right to do so;

3. Whether the person rendering the service undertook substantial costs to perform the service;

4. Whether the service required special training or skill, and whether the person receiving the benefit of the services provided such special training;

5. The duration of the relationship between the parties;

6. Whether the person rendering the service had a risk of loss;

7. Whether the person who received the benefit of the services could discharge without cause the person who performed the services;

8. The method of payment, such as by time or by job;

9. Whether the person rendering services regularly performs the same services for other persons and is not protected to any degree from competition;

10. Whether the person for whom services are performed furnishes tools, equipment, support staff and a place to work to the individual rendering the services;

11. Whether the individual rendering the services is eligible for employer provided benefits such as pension, bonuses, paid vacation days and sick pay;

12. Whether the person receiving the benefits of the services rendered carries workmen's compensation insurance on the individual performing the services;

13. Whether the Internal Revenue Service determines that an individual performing services is an employee; and

14. Any other information deemed to be relevant by the Division.

(c) No single factor in (b) above shall necessarily be conclusive in determining whether an individual is an employee or self-employed. The final determination as to whether an individual is either an employee or self-employed shall be based upon the review of the circumstances of the entire relationship and the evaluation of any special facts in a particular case.

(d) If the relationship of employer and employee exists, the designation or description of the relationship by the parties as anything other than that of employer and employee shall be immaterial, including designation as a partner, co-adventurer, agent, independent contractor, or similar designations or descriptions.

(e) All classes or grades of employees shall be included within the relationship of employer and employee, including Superintendents, managers, and other supervisory personnel:

1. An officer of a corporation shall be considered an employee of the corporation, except that an officer of a corporation who as such does not perform any services, or performs only minor services, and who neither receives nor is entitled to receive, directly or indirectly, any remuneration shall not be considered an employee of the corporation.

2. A director of a corporation in his or her capacity as such shall not be considered an employee of the corporation.

N.J. Admin. Code § 18:35-7.1

Amended by 48 N.J.R. 295(a), effective 2/16/2016