On certification to the Superior Court, Appellate Division.
For Reversal and Remandment -- Chief Justice Wilentz, Justices Clifford, Handler, Pollack, Garibaldi and Stein. Dissenting -- Justice O'Hern. The opinion of the Court was delivered by Stein, J. O'Hern, J. has filed a separate dissenting opinion.
[125 NJ Page 571] The issue in this appeal is whether carpet installers who provided services for Carpet Remnant Warehouse, Inc. (CRW) are employees or independent contractors for purposes of the Unemployment Compensation Law, N.J.S.A. 43:21-1 to -24.4 (UCL). Pursuant to the UCL, the carpet installers are deemed employees unless they are able to satisfy the criteria of the socalled "ABC test," N.J.S.A. 43:21-19(i)(6)(A), (B), (C). If the installers are unable to meet the ABC test's criteria, then CRW is liable for unpaid unemployment compensation and temporary-disability contributions attributable to those installers. Although the Office of Administrative Law (OAL) determined that the installers are independent contractors, the Commissioner of the New Jersey Department of Labor (Commissioner) ruled that the installers did not satisfy the ABC test and therefore are employees. The Appellate Division affirmed in
an unreported opinion. We granted certification, N.J. (19 ), and now reverse.
In July 1986, the New Jersey Department of Labor (Department) conducted a "routine, periodic test audit" of CRW. The Department auditor, Dudley Wilson, reviewed CRW's individual wage records, periodic payroll records, cash disbursements, tax returns, and related bookkeeping records for the calendar years 1982, 1983, 1984, 1985, and the first quarter of 1986. In the course of the audit, the auditor interviewed Raymond Schienholtz, CRW's president; Norman Cohen, CRW's accountant; and Wayne Neill, one of the carpet installers who provided services to CRW. The Department concluded that thirty-nine of the carpet installers who had provided services to CRW for the audit period were "non-bonafide independent contractors" or, more precisely, employees pursuant to the UCL. Accordingly, the Department demanded that CRW pay an assessment of $16,276.50 plus interest for delinquent unemployment and disability contributions due for the audit period and attributable to those installers. Ordinarily, both the employer and the employee make contributions to the Unemployment Compensation Fund, the employee's share being deducted from his wages. N.J.S.A. 43:21-7. However, if the employer fails to deduct the employee's share of contributions, the employer alone is liable for those contributions. N.J.S.A. 43:21-7(d)(1)(D).
CRW disputed the assessment, and the Department referred the matter to the OAL for disposition as a contested case. At the OAL hearing in January 1988, CRW attempted to prove that the carpet installers were independent contractors under the ABC test, which provides:
(6) Services performed by an individual for remuneration shall be deemed to be employment subject to this chapter (R.S. 43:21-1 et seq.) unless and until it is shown to the satisfaction of the division that:
(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. [ N.J.S.A. 43:21-19(i)(6).]
Most of the relevant facts elicited from testimony at the hearing before the Administrative Law Judge (ALJ) are undisputed. At the time of the hearing, CRW had been in business for twenty years and had two retail locations, one in Burlington and one in Haddon Heights. During that twenty-year period, no installer had filed a claim for either unemployment or disability benefits. Both stores use the name Burlington Carpet and sell carpeting and area rugs. In its advertisements, CRW quotes both installed and uninstalled prices for its carpeting. Approximately sixty percent of its carpet sales include installation.
When CRW transacts a sale of carpeting that includes installation, it charges the customer an aggregate price, which includes the retail price of the carpeting and a charge for installation that is equal to or five percent greater than CRW's cost (the installer's fee). When the carpeting is available, CRW schedules the installation date with the customer. CRW then posts notice of the installation job on a calendar board in its warehouse. One of a pool of qualified installers selects that job and then installs the carpeting at the customer's residence or place of business. Although CRW has experimented with having installers on its payroll, that practice proved to be unsuccessful because of the seasonal nature of the business.
Training and experience are required before one can become a qualified carpet installer. Typically, a novice installer will apprentice with an experienced installer for three to five years. After the apprenticeship, the installer submits his qualifications and price schedule to carpet retailers that are in the market for new installers. CRW ordinarily accepts only those installers whose prices and qualifications it deems appropriate and who submit proof of insurance. CRW also maintains its own liability insurance.
Once approved, installers obtain work by selecting installation jobs from CRW's calendar board, usually on the basis of
the installer's geographical preference. CRW does not guarantee any installer a set volume of work, nor are installers obligated to take specific jobs or perform a specified volume of work. Some installers devote a substantial percentage of their time to installations for CRW, but none works for CRW exclusively. On average, installers provide services for three to five different carpet retailers.
After an installer selects a job, he generally has no contact with the customer until the date of installation other than to call the customer to confirm the appointment. On the designated day, the installer picks up the carpeting from CRW's warehouse, transports it to the designated place of delivery, and performs the installation. The installer provides at his own expense all the equipment and supplies required for installation, including a vehicle, adhesive glue, staple-guns, rollers, tape, a power stretcher, and nails. On occasion, the customer will ask the installer to perform extra work. In those instances, the customer pays the installer directly for the incremental services. Otherwise, the customer pays CRW the total cost of the carpeting and installation.
Although installers negotiate their fees with CRW, the rates they charge do not vary significantly. The cost of a job usually is determined by multiplying the number of square yards by the installer's rate. An added charge may be assessed for custom work. Installers submit invoices directly to CRW, and CRW pays the installer even if the customer fails to pay CRW. Approximately seventy-five percent of the installers use CRW's standard invoice form, which CRW provides at its expense in order to facilitate its record-keeping. CRW does not withhold any taxes from the installers' fee.
CRW guarantees the carpeting and installation for one year. Customers generally complain to CRW directly about any problems with an installation. After receiving a complaint, CRW contacts the installer who performed the work, and that installer is then obligated to repair any defects at his own expense.
If the installer disputes the veracity of the complaint, then CRW or the installer communicates with A & M Inspection, an independent company that investigates complaints and prepares reports detailing any defects. In the event that the customer does not wish the original installer to perform the necessary repairs, CRW sends out a different installer and subtracts the cost of repair from the first installer's payment. If the first installer is insolvent or no longer available, CRW bears the cost of repair.
Two installers, Jerry Forcellini and Thomas Johnston, testified at the hearing. Forcellini is the sole or majority stockholder of Jerry Forcellini Carpet Company, Inc., the entity through which he operates his carpet-installation business. He testified that his company employs three helpers, paying the necessary taxes and insurance for those employees. He owns two trucks, each with the name of his company displayed on it. According to Forcellini he is well-known and does little advertising. Forcellini testified that he had been a carpet installer for thirty years and had served as an apprentice for four years. His company installs, services, repairs, and sells carpeting, and approximately twenty percent of its income is derived from sales of carpeting. The percentage of Forcellini's business that is derived from CRW installations varies from year to year. In 1982, the company received approximately $50,000 from installation for CRW, which constituted approximately thirty to forty percent of its gross revenue for that year. Forcellini installs carpeting for four or five carpet retailers other than CRW.
Johnston, who has been an installer for seventeen years, operates as a sole proprietorship under the name Johnston's Carpeting Service. In addition to installing carpeting for CRW, Johnston installs carpeting for several other carpet retailers, decorators, and individual consumers. He occasionally sells carpeting. Johnston testified that he employs a helper, for whom he pays the required taxes and insurance. Johnston has his own business card, letterhead, and invoices. His advertising is limited to the local shoppers' guide or the placement of
his business card on the bulletin boards of carpet distributors who do not offer installation. Johnston and Forcellini testified that although CRW is an integral part of their business, they prefer to work free-lance and not exclusively for CRW. They testified that working for several retailers rather than one increases their independence and is also more profitable than working full-time for one store.
Wilson, the Department auditor, also testified at the hearing. In addition to reviewing CRW's tax and employment records, Wilson checked the yellow pages to determine if any of the installers advertised their services. He found that few did so. Wilson testified that his review of the Department's "Alpha Search" system revealed that most of the installers in question were not listed as employing units. Conceding that in certain circumstances a carpet installer could be an independent contractor, Wilson acknowledged that he did not attribute employee status to a substantial number of installers who provided services for CRW during the audit period. He excluded installers that were either employing units, incorporated, or earned less than a thousand dollars from CRW, apparently not considering the A or B aspects of the ABC test in making those determinations. Wilson also stated that an installer who installed carpet for other carpet retailers and derived less than seventy-five percent of his revenue from CRW would be considered "independently established," thereby satisfying the C standard.
In May 1988, the ALJ issued his decision ordering that the Department's claim against CRW be denied. The ALJ found CRW's witnesses to be "believable and persuasive," and adopted their testimony. Although finding the Department's auditor to be credible, the ALJ did not find his testimony persuasive. The ALJ determined that installers "operate independently of retailers in all respects of their activities." The ALJ then reviewed the applicable statutory and case law, concluding that CRW had established each prong of the ABC test, N.J.S.A. 43:21-19(i)(6), and that therefore CRW's relationship
with its installers was exempt from classification as employment.
In August 1988, the Commissioner rejected the ALJ's conclusion, finding that the installers were employees of CRW. The Commissioner accepted the ALJ's fact-findings concerning the relationship between CRW and its installers. The Commissioner also accepted the ALJ's determinations of credibility, but found those determinations irrelevant. Although noting his acceptance of the ALJ's finding that the carpet industry considers installers to be independent contractors, the Commissioner determined that "that perception is not legally binding." The Commissioner found the factual circumstances in this case indistinguishable from those in Irvington Linoleum & Carpet v. Department of Labor, OAL Docket No. LID 6278-87 (1988), an earlier decision in which an ALJ had determined that carpet installers were employees. The Commissioner then proceeded to analyze CRW's relationship with its installers under the ABC test, concluding that CRW had not satisfied either the A (control) or B (course-of-business or location-of-work) standard for any of the installers. Furthermore, the Commissioner held that with the exception of Forcellini and Johnston, CRW had not satisfied the requirements of the C (independent-business) standard. The Commissioner affirmed the Department's assessment against CRW for all the installers.
The Appellate Division affirmed the Commissioner's decision. The court found sufficient credible evidence in the record to support the Commissioner's conclusion that "the installers were not free from [CRW's] control under subsection A" of the ABC test. The court found as indicia of control that CRW sets the time and date for installation, guarantees the quality of installation, and bears the risk of loss if a customer fails to pay. Because the court held that CRW failed to meet its burden of proof under the "control" standard, it declined to reach either the B or the C standard of the ABC test.
Unemployment legislation was first enacted in this country in the 1930s in response to the overwhelming amount of unemployment resulting from the Depression. See Charles C. Steward Mach. Co. v. Davis, 301 U.S. 548, 586-87, 57 S. Ct. 883, 81 L. Ed. 1279, 1290-91 (1937). Although a number of states had proposed such legislation, and a few had adopted unemployment statutes, id. at 587-88, 57 S. Ct. at 890-91, 81 L. Ed. at 1291, the federal government's enactment of the Social Security Act in 1935 provided the impetus for widespread unemployment-compensation legislation. Ibid. See Act of August 14, 1935, ch. 531, 49 Stat. 620, 640 (1935) (codified as amended at 26 U.S.C.A. §§ 3301 to 3311). The significance of the Social Security Act was that its provisions affording a credit for state unemployment taxes against the federal tax imposed by that legislation alleviated the fear of states that imposing an unemployment tax on their industries would create an economic disadvantage with neighboring states. Charles C. Steward Mach. Co., supra, 301 U.S. at 588-89, 57 S. Ct. at 891-92, 81 L. Ed. at 1291-92. By August 1937, all of the states and territories and the District of Columbia had enacted unemployment-compensation laws. Note, Employment Relationships Within the Scope of State Unemployment Compensation Statutes, 1 Wash. & Lee L.Rev. 232, 233 n. 5 (1940).
The Social Security Act applied to employers of eight or more employees, see Social Security Act, supra, § 907, 49 Stat. at 642, and required them to pay an "excise tax" based on a percentage of wages. Id. § 901, 49 Stat. at 640. An employer could receive a credit of up to ninety percent of that tax if the employer's home state satisfied certain criteria relating to the administration of the state's unemployment compensation law and thereby was certified by the Social Security Board. Id. §§ 902-03, 42 ...