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Bloom v. Division of Employment Security

Decided: September 28, 1961.

SIMON BLOOM, T/A N.J. FOREIGN LANGUAGE NEWSPAPERS ADVERTISING AGENCY, JEWISH LEDGER-N.J., AND VETERANS NEWS, PETITIONER-APPELLANT,
v.
DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, RESPONDENT-RESPONDENT



Price, Sullivan and Leonard. The opinion of the court was delivered by Sullivan, J.A.D.

Sullivan

Petitioner appeals from a decision of the Commissioner of Labor and Industry affirming a ruling by the Director of The Division of Employment Security. The decision was that services performed by petitioner's solicitors as hereinafter noted constituted employment within the meaning of the Unemployment Compensation Law of New Jersey and that petitioner was liable for contributions to the Unemployment Compensation fund on the remuneration paid these solicitors.

The facts are not in dispute and have been stipulated as follows:

"Bloom owns and publishes several newspapers. He sells advertising for his own and several other newspapers, some of which are printed outside the State of New Jersey and have their places of business outside New Jersey. He sells advertising for himself and others, in part through the services of telephone solicitors who are housewives and who perform such services as an incident to their housework.

The telephone solicitors are secured by Bloom through advertisements in the help-wanted sections in other newspapers throughout New Jersey under the caption 'HELP WANTED WOMEN.' The advertisements offer work for women in their homes as telephone solicitors on a commission basis. Occasionally, men are included in the advertisements. Typical advertisements read as follows:

'Telephone Solicitors to Work From Home. Experience Preferred. Commission. Mitchell 2-0545.'

Bloom interrogates prospective solicitors by phone and if found satisfactory engages them and gives them instructions on interviewing prospective customers, information to be obtained, cost of space, collection, and other pertinent matters. Advertisements obtained by solicitors are mailed to Bloom. The solicitors never went into the place of business of Bloom.

The remuneration of the solicitors is a 20% commission which is paid by Bloom to them weekly by check whether or not he collects the costs of the advertisements. When solicitors are engaged, they sign a paper captioned 'RELEASE' which states that they are independent contractors and have no other business, work or occupation other than that of housewife. A copy of the release is attached to this Stipulation and made a part hereof.

Bloom did not supervise the services of the solicitors nor did he control the time during or the territory in which such services were performed, nor did he reimburse the solicitors for any expenses incurred by them. Bloom never terminated the services of any solicitor. Many of the solicitors submitted one or two ads, and with few exceptions the commissions of each did not exceed $50 over the period in question. The federal government did not require social security or withholding taxes nor were they paid.

Bloom's payroll book did not include the solicitors, nor were social security taxes deducted from their earnings. Bloom in his own income tax return showed as a deduction the remuneration paid to the solicitors as 'commissions paid.'

An audit of Bloom's records by the Division's auditors disclosed a liability for contributions for the period October 1, 1954 to September 30, 1958, of $1,881.84 which had not been reported, with interest to November 25, 1958 of $291.92.

Services performed by a collector, Bercik, and those who substituted for him were held, by reason of the facts, not to constitute employment as defined by the Unemployment Compensation Law of New ...


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