United States District Court, District of New Jersey, D.
October 17, 2002
THOMAS F. DABRONZO, PLAINTIFF,
ROCHE VITAMINS, INC.; JOHN DOES 1-5 AND ABC CORP.1-5; JOINTLY SEVERALLY, AND IN THE ALTERNATIVE, DEFENDANTS.
The opinion of the court was delivered by: Wolfson, United States Magistrate Judge.
The primary issue presented on this motion for summary
judgment by defendant Roche Vitamins, Inc. ("RVI") is whether
the protections afforded employees by the New Jersey
Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et
seq., ("CEPA") extend to independent contractors. This
Court*fn1 holds that an independent contractor, such as the
plaintiff here, Thomas DaBronzo ("plaintiff" or "DaBronzo"), who
complains to his employer about the alleged misconduct of
another business entity with whom the employer has a business
relationship, has no cause of action against the other business
entity under CEPA. Therefore, defendant's motion for summary
judgment is granted.
Plaintiff was employed as a foreman for Perimeter, Inc.
("Perimeter"), an insulation and asbestos contractor, until he
was terminated on December 13, 2001. For thirty years, plaintiff
worked exclusively at RVI's manufacturing plant in Belvidere,
New Jersey, first for the Woolsulate Corporation, and then for
Perimeter. RVI, a manufacturer of bulk vitamin C and other
vitamin premixes, had a contractual relationship with Woolsulate
and continues to have a contractual relationship with Perimeter
for insulation installation and routine maintenance projects,
including asbestos removal. See Plaintiffs Opposition Brief,
Exhibit B*fn2. Neither party contests that RVI exercised its
contractual right to have Perimeter remove plaintiff from the
RVI manufacturing site. However, the parties vigorously contest
the facts which precipitated that removal and which caused
Perimeter to terminate plaintiff from its
Plaintiff has chosen not to sue Perimeter, his direct
employer, and proceeds only against RVI. For purposes of this
motion, the reasons for plaintiffs termination are not relevant.
Instead, the following undisputed facts are pertinent to the
issue whether plaintiff can assert a CEPA claim against RVI.
Perimeter was the "resident contractor" for the Belvidere, New
Jersey RVI site. See Plaintiffs Opposition Brief, Exhibit B.
In this capacity, Perimeter was offered routine insulation
maintenance projects without having to go through a formal
bidding process. According to the contract between Perimeter and
RVI, DaBronzo was listed as Perimeter's general foreman assigned
exclusively to the RVI site. See id. (Proposal at ¶ 6.0). As
the general foreman and Perimeter's on-site representative, RVI
funneled work directly to plaintiff in the form of work orders
and DaBronzo then distributed the assignments to Perimeter
personnel for execution. At all times, RVI reserved the right to
constrain Perimeter's expenses to conform to RVI's budgetary
limits. Likewise, RVI management was on-site, observing
Perimeter's performance to ensure compliance with federal and
state safety regulations, which included regulating the manner
in which the asbestos was removed and handled.
It is undisputed that Perimeter was plaintiffs direct
employer, issued his paychecks, made the appropriate tax and
social security deductions, set plaintiffs vacation schedule,
and maintained plaintiffs pension and retirement package,
inclusive of any employee benefit plans. Plaintiff was also a
member of Local 89 of the International Association of Heat and
Frost Insulators and Asbestos Workers, with whom Perimeter, not
RVI, had a collective bargaining agreement. On the other hand,
plaintiff was not eligible for any employee benefits or
incentives offered to employees of RVI:
"CONTRACTOR [Perimeter] is responsible for staffing
the Services and providing any and all compensation
and/or insurance to its staff members. RVI shall not
be responsible for withholding, and shall not
withhold, FICA or taxes of any kind from any payments
it owes to CONTRACTOR. CONTRACTOR agrees to comply
with all laws related to payment of income taxes for
individuals providing services hereunder. . . .
Further, as independent contractors, neither
CONTRACTOR nor any of [RVI's] benefit plans,
programs, employment policies or procedures or
workers' compensation insurance . . .". Id.
(Resident Insulation Services Agreement at ¶ 11.12).
Pursuant to the contract, Perimeter provided all of the
equipment and supplies necessary for the performance of its
tasks. "On a cost plus fixed fee basis, [Perimeter]
shall provide all supervision, labor, equipment, and materials
required to complete construction, repair, installation,
maintenance projects (the "Services") in connection with the RVI
facility. . . . See Pursell Decl. ¶ 2.1(a). Perimeter's
control over labor and equipment necessitated that plaintiff
attend regular RVI on-site meetings to coordinate efforts and
maximize efficiency. Finally, it is not disputed that RVI
exercised its contractual right to request that Perimeter remove
DaBronzo from the RVI site, and further, that Perimeter
terminated DaBronzo from its employ.
At the initial scheduling conference with the Court, the
parties properly focused on the issue of whether plaintiff was
an independent contractor to RVI and whether CEPA covers
independent contractors. Consequently, I directed that discovery
proceed on the issue of plaintiffs relationship with RVI. As a
result, plaintiff deposed Robert B. Pursell, Manager of
Contractor Services for RVI. Although plaintiff claims that this
motion for summary judgment is premature due to the infancy of
the discovery process, he has no discovery requests pending, and
has failed to identify any specific additional discovery
necessary to defend against the motion. Finally, plaintiff has
not filed any opposing affidavits. Therefore, I conclude that
this motion is ripe for resolution.
Summary Judgment Standard
A moving party is entitled to judgment as a matter of law
where there is no genuine issue as to any material fact. See
FED R. Civ. P. 56(c); Brooks v. Kyler, 204 F.3d 102, 105 n. 5
(3d Cir. 2000) (citing FED R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986)); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366
(3d Cir. 1996). The burden of demonstrating the absence of a
genuine issue of material fact falls on the moving party. See
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 305 (3d Cir.
1999) (citations omitted). Once the moving party has satisfied
this initial burden, the opposing party must identify "specific
facts which demonstrate that there exists a genuine issue for
trial." Orson, 79 F.3d at 1366.
Not every issue of fact will be sufficient to defeat a motion
for summary judgment; issues of fact are genuine "if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Further,
the nonmoving party cannot rest upon mere allegations; he must
present actual evidence that creates a genuine issue of material
fact. See FED R. Civ. P. 56(e); Anderson, 477 U.S. at 249,
106 S.Ct. 2505 (citing First Nat'l Bank v. Cities Serv. Co.,
391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). In
conducting a review of the facts, the non-moving party is
entitled to all reasonable inferences and the record is
construed in the light most favorable to that party. See
Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864
(3d Cir. 1986). Accordingly, it is not the Court's role to make
findings of fact, but to analyze the facts presented and
determine if a reasonable jury could return a verdict for the
nonmoving party. See Brooks, 204 F.3d at 105 n. 5 (citing
Anderson, 477 U.S. at 249, 106 S.Ct. 2505); Big Apple BMW v.
BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
RVI asserts that summary judgement is appropriate in this case
because independent contractors are not covered by CEPA and that
plaintiff was an independent contractor, not an RVI employee. By
contrast, plaintiff asserts that independent contractors are
covered by CEPA, and
that CEPA extends to plaintiffs claim because RVI is "another
employer" as defined under the statute. Alternatively, plaintiff
contends that the Court should find that he was an employee, and
not an independent contractor of RVI, and, thus, is afforded
protection under CEPA.
I. The New Jersey CEPA Does Not Extend to Independent
As a federal court sitting in diversity, pursuant to
28 U.S.C. § 1332(a), I am obligated to apply the substantive laws of the
State of New Jersey. Erie R.R. Co. v. Tompkins, 304 U.S. 64,
58 S.Ct. 817, 82 L.Ed. 1188 (1938). The parties agree that no
reported New Jersey case has addressed whether CEPA protections
extend to independent contractors. Certainly, the statute does
not, by its express terms, include independent contractors. In
cases such as this, where neither the New Jersey Supreme Court
nor the Appellate Division has spoken on an issue, this Court
must base its decision on a prediction of how the New Jersey
Supreme Court would interpret the question. See Pittston Co.
Ultramar America Ltd. v. Allianz Ins. Co., 124 F.3d 508, 516
(3d Cir. 1997); see also, City of Erie v. Guaranty National
Ins. Co., 109 F.3d 156, 159-60 (3d Cir. 1997) (where
Pennsylvania had not yet decided whether the tort of malicious
prosecution occurs for purposes of insurance coverage, federal
court would predict what the Pennsylvania Supreme Court would
decide if confronted with the question). Accordingly, I have
considered New Jersey Supreme Court CEPA decisions, that Court's
approach to employment cases, as well as the remedial nature of
the statute, to assist me in predicting how the New Jersey
Supreme Court would decide the issue presented here.
CEPA, enacted in 1986 to encourage employees to notify
authorities of any and all illegal or unethical work-place
activities conducted by an employer, provides:
An employer shall not take any retaliatory action
against an employee because the employee does any of
a. Discloses, or threatens to disclose to a
supervisor or to a public body an activity, policy or
practice of the employer or another employer, with
whom there is a business relationship, that the
employee reasonably believes is in violation of a
law, or a rule or regulation promulgated pursuant to
law, or, in the case of an employee who is a licensed
or certified health care professional, reasonably
believes constitutes improper quality of patient
b. Provides information to, or testifies before, any
public body conducting an investigation, hearing or
inquiry into any violation of law, or a rule or
regulation promulgated pursuant to law by the
employer or another employer, with whom there is a
business relationship, or, in the case of an employee
who is a licensed or certified health care
professional, provides information to, or testifies
before, any public body conducting an investigation,
hearing or inquiry into the quality of patient care;
c. Objects to, or refuses to participate in any
activity, policy practice which the employee
reasonably believes: (1) is in violation of a law, or
a rule or regulation promulgated pursuant to law or,
if the employee is a licensed or certified health
care professional, constitutes improper quality of
patient care; (2) is fraudulent or criminal; or (3)
is incompatible with a clear mandate of public policy
concerning the public health, safety or welfare or
protection of the environment.
N.J.S.A. 34:19-3. Thus, CEPA protects an employee "who believing
that the public
interest overrides the interest of the organization he serves,
publicly `blows the whistle' if the organization is involved in
a corrupt, illegal, fraudulent, or harmful activity". See
Abbamont v. Board of Educ., 138 N.J. 405
, 650 A.2d 958
(quoting Ralph Nader et al., Whistleblowing: The Report of
the Conference on Professional Responsibility vii (Ralph Nader
et al., 1972)).
Like New Jersey's Law Against Discrimination ("LAD" or
"NJLAD"), CEPA reflects a "reaffirmation of [New Jersey's]
repugnance to an employer's retaliation against an employee who
has done nothing more than assert statutory rights and
protections and a recognition by the Legislature of a
preexisting common-law tort cause of action for such retaliatory
discharge". Lally v. Copygraphics, 85 N.J. 668, 678,
428 A.2d 1317 (1981). Indeed, New Jersey has consistently advanced a
strong public policy against work place discrimination and
promotes liberal construction of statutes and policies to
further the remedial goals of all anti-discrimination work place
protective legislation. "In enacting the NJLAD, the New Jersey
Legislature expressed a strong public policy in protecting the
State's residents against the practice of discrimination, which
as the Legislature declared, `threatens not only the rights and
proper privileges of the inhabitants of this state, but menaces
the institutions and foundations of a free democratic state'."
See Finding and Declaration of Legislature N.J.S.A. 10:5-3.
With that policy framework in mind, the issue whether CEPA's
reach extends to independent contractors will now be examined.
Under CEPA, an "employee" is "any individual who performs
services for and under the control and direction of an
employer". N.J.S.A. 34:19-2(b). In those few instances where the
New Jersey courts have interpreted the term "employee" under
CEPA they have construed it "liberally to achieve the remedial
purpose of the statute".*fn4 Abbamont at 431, 650 A.2d 958;
see also, Lepore v. National Tool and Manufacturing,
224 N.J. Super. 463, 470, 540 A.2d 1296 (App.Div. 1988) (holding that
"CEPA was intended as `comprehensive legislation' and that the
term `employee' is broadly defined encompassing both union and
nonunion employees"). But the New Jersey courts have not yet
addressed whether CEPA extends to independent contractors.
When lacking in New Jersey precedent, the New Jersey Supreme
Court has historically looked first to the Legislature's intent
and thereafter to how sister jurisdictions have construed
similar language in their comparable "whistleblowing" statutes.
See Higgins v. Pascack Valley Hospital, 158 N.J. 404, 422,
730 A.2d 327 (1999) (guided by New York and Michigan "whistleblower"
statutes in determining whether CEPA protection extends to
employees who report "the misconduct of co-employees").
Likewise, CEPA contains no express term "independent
contractor". This exclusion is consistent with the Legislature's
enactments in sister jurisdictions, and is in harmony with the
interpretations given by those states courts and New Jersey and
federal courts interpreting analogous workforce protection
statutes. See Stephens v. Prudential Ins. Co. of America,
278 A.D.2d 16, 717 N.Y.S.2d 144 (1st Dep't 2000) (holding that a
physician who was an independent contractor employed by a health
care plan was not entitled to the protection of New York's
statute prohibiting retaliatory discharge); Chilingirian v.
City of Fraser, 504 N.W.2d 1, 200 Mich. App. 198 (1993) (holding
that an attorney who performed services for the city was an
independent contractor and, therefore, not entitled to
protection under the Michigan Whistleblower Protection Act);
Pukowsky v. Caruso, 312 N.J. Super. 171, 184, 711 A.2d 398
(App.Div. 1998) (NJLAD does not to apply to independent
contractors); EEOC v. Zippo Mfg. Co., 713 F.2d 32, 35 (3d Cir.
1983) (independent contractors are not protected by the ADEA);
Birchem v. Knights of Columbus, 116 F.3d 310, 312 (8th Cir.
1997) (ADA does not protect independent contractors); Barnhart
v. N.Y. Life Ins. Co., 141 F.3d 1310, 1313 (9th Cir. 1998)
(independent contractors not protected by ADEA or ERISA); cf.
Hardin v. DuPont Scandinavia, 731 F. Supp. 1202, 1206 (S.D.N.Y.
1990) (an independent contractor cannot state a claim for relief
under the False Claims Act).
A. The NJLAD Does Not Extend Protection to "Independent
In Pukowsky, supra. the New Jersey Appellate Division held
that independent contractors are not "employees" under the
NJLAD. There, Pukowsky, a roller skating instructor who gave
lessons at defendant's roller skating rink, sued the rink and
its owner for sexual harassment under the NJLAD after she was
barred from using the rink. Defendants sought to dismiss her
complaint asserting that plaintiffs status as an independent
contractor was beyond the reach of the NJLAD.*fn5
Jersey had not yet addressed whether the NJLAD covers
independent contractors, the court looked to other state civil
rights acts and federal anti-discrimination laws to assist it in
deciding whether the NJLAD protects them. Id. at 183,
711 A.2d 398
I am mindful of "the important public policies of the LAD and
CEPA and the need to construe the statutes liberally to achieve
those policies", Abbamont at 418, 650 A.2d 958, and that "[i]n
CEPA actions, as in LAD actions, `the employer is the party with
the power and responsibility to hire, promote, reinstate,
provide back pay, and take other remedial action'". Id. at
418, 650 A.2d 958, quoting Lehmann v. Toys R Us, Inc.,
132 N.J. 587, 617, 626 A.2d 445 (1993). Nonetheless, despite the
mandate that the NJLAD be construed liberally, it has not been
construed to extend its protections to independent contractors.
Likewise, liberal construction of CEPA is not without bounds.
"Despite being liberally construed by the New Jersey courts, New
Jersey's (CEPA) is not intended to shelter every alarmist who
disrupts his or her employer's operations by constantly
declaring that illegal activity is afoot, or is about to be
afoot". Blackburn v. United Parcel Service, Inc., 179 F.3d 81,
94 n. 4 (3rd Cir. 1999). Similarly, there is no convincing
rationale for extending CEPA to independent contractors when the
independent contractor may seek redress from his direct employer
— who controls his salary, demotion, hiring, firing,
and terms of employment. See e.g. Lehmann, supra. at 617,
626 A.2d 445.
B. Other States do not Extend Their "Whistleblower"
Statutory Protection to Independent Contractors.
In the past, the New Jersey Supreme Court has looked to other
states for guidance when construing matters of first impression
under CEPA. Specifically, in Higgins, the New Jersey Supreme
Court was asked to decide whether CEPA protects an employee who
was discharged after "blowing the whistle" on a co-employee.
158 N.J. 404
, 730 A.2d 327
. In holding that this type of activity is
covered under CEPA, the Supreme Court considered the policy and
legislative intent of CEPA. Id. at 420-421, 730 A.2d 327
Additionally, the Court was guided by the law in other states,
including New York and Michigan. Id. at 422, 730 A.2d 327
so doing, the New Jersey Supreme Court noted that New York's
is substantively the same as CEPA.
Both the New York and Michigan "whistleblower" statutes have
been construed to exclude independent contractors from their
ambit of protections and remedies. While the New York
Whistleblower Statute expressly provides that "[i]t shall be a
defense that the individual was an independent contractor", N.Y.
Labor § 740(3)(c), Michigan's Whistleblower Protection
Act*fn7 has been judicially interpreted as not applying to
independent contractors. Chilingirian, 200 Mich. App. 198,
504 N.W.2d 1. Several other states are in accord.*fn8 See
McClure v. American Mut. Ins. Co., 29 F. Supp.2d 1046 (Minn.
1998), affirmed 223 F.3d 845 (8th Cir. 2000) (holding that the
Minnesota whistleblower statute did not apply to insurance
agents who were independent contractors); see also Rankin v.
City of Philadelphia, 963 F. Supp. 463 (E.D.Pa. 1997) (stating
that Pennsylvania's whistleblower statute does not apply to
C. Federal Anti-Discrimination Laws Exclude Independent
Traditionally, federal precedent in the anti-discrimination
employment area has provided the New Jersey courts with a
compass to navigate the unchartered waters of the NJLAD. For
example, in Pukowsky, in the absence of New Jersey precedent,
the Appellate Division looked to federal precedent to guide it
in resolving whether independent contractors are covered by the
NJLAD. "In construing the terms of the LAD, this court has
frequently looked to federal precedent governing Title VII of
the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e to 2000-17,
("Title VII"), as a `key source of interpretive authority'".
Id. at 178, 711 A.2d 398
, (quoting Lehmann, 132 N.J. 587
600-601, 626 A.2d 445
). After surveying trends in federal
employment discrimination law, Pukowsky acknowledged that
independent contractors are not considered employees for
purposes of extending protection under Title VII of the Civil
Rights Act of 1964, 42 U.S.C.A. §§ 2000e to 2000-17, the federal
Age Discrimination in Employment Act, 29 U.S.C § 621, (ADEA) and
the Americans with Disabilities Act, 42 U.S.C. § 12101(ADA).
See Pukowsky at 179, 711 A.2d 398
. Interestingly, the
Appellate Division also referenced the New York
Human Rights Law*fn9
and the Michigan Civil Rights
which either expressly exclude independent
contractors from protection, or have been judicially interpreted
to do so. Id.; cf. Higgins, 158 N.J. 404
, 730 A.2d 327
Jersey Supreme Court considered the policies of Michigan and New
A review of New Jersey case law and policy, as well as other
states' "whistleblower" statutes, compels me to conclude the New
Jersey Legislature purposefully excluded independent contractors
from the protections afforded employees under CEPA. Indisputably
the courts have divined that CEPA be construed liberally to
achieve its remedial purpose. Although that same policy
underlies the NJLAD, it has been judicially decreed that
independent contractors are not protected under that statute.
Pukowsky, supra. Since both CEPA and NJLAD serve similar
remedial goals, it is unlikely that the New Jersey courts would
distinguish between these statutes to expand the definition of
employee under CEPA. Secondly, a plain reading of the statute
supports the conclusion that the legislature did not intend to
include independent contractors within the definition of
"employee". Had it been the intent of the New Jersey Legislature
to provide CEPA protection for independent contractors, it could
have done so when it amended CEPA in 1989 to prevent retaliation
for reporting the illegal activities of "another employer". See
infra., pp. 14-16. Thirdly, other states to which New Jersey
courts have historically looked to for assistance, have analyzed
the issue and determined that independent contractors are not
protected by their whistleblower statutes. Finally, excluding
independent contractors from CEPA protection, as do the NJLAD,
ADEA, ADA, Title VII, and ERISA, promotes uniformity in the
employment law arena.
II. Neither CEPA, as Amended, Nor Barratt v. Cushman &
Wakefield Extends Liability to RVI for Plaintiff's
Termination by Perimeter
Plaintiff asserts, in the alternative, that RVI qualifies as
"another employer" for purposes of CEPA, N.J.S.A. 34:19-3(a),
and is liable for his termination by Perimeter. Pursuant to
CEPA, "employer" is defined as follows:
"`Employer' means any individual, partnership,
association, corporation, or any person or group of
persons acting directly or indirectly on behalf of
or in the interest of an employer with the
employer's consent and shall include all branches
of State Government, or the several counties and
municipalities thereof, or any special district, or
any authority, commission, or board or any agency
or instrumentality thereof". N.J.S.A. 34:19-2(a).
In 1989, the New Jersey Legislature amended CEPA to protect
against retaliation for reporting the illegal activities of
"another employer". Accordingly, CEPA protects whistleblowers
who disclose or threaten or disclose to a supervisor an activity
by an employer or "another employer with whom there is a
business relationship". N.J.S.A. 34:19-3(a). Plaintiff contends
that because RVI and Perimeter have a "business relationship",
RVI is liable to Plaintiff under CEPA. In support of this
contention, plaintiff relies on Barratt v. Cushman & Wakefield
of N.J., Inc., 144 N.J. 120
675 A.2d 1094
(1996). This argument is specious. Albeit there is
no dispute that Perimeter was DaBronzo's direct employer and
that RVI is "another employer with whom there is a business
relationship", those facts cannot make RVI liable to plaintiff
under CEPA. Employers other than direct employers are included
in CEPA solely to make clear that employees who report allegedly
illegal activities of these other employers are protected
against retaliation by their direct employers. Certainly
plaintiff can cite no precedent to the contrary. The one case
relied on by plaintiff, Barratt, merely supports the
proposition that CEPA protects employees against retaliatory
discharges by their own employer, nothing more.
In Barratt, the plaintiff, a real estate broker employed by
defendant, Cushman & Wakefield, was the exclusive leasing agent
for Exchange Place Urban Renewal. Id. at 122, 675 A.2d 1094.
Pursuant to CEPA, plaintiff brought a claim against his
employer, Cushman & Wakefield, alleging that he was terminated
in retaliation for disclosing to the Real Estate Commission that
a partner in Exchange Place had prior convictions. Id. The
issue presented was whether plaintiff could sue his own employer
under CEPA for terminating him for reporting the illegal act of
a partner in a partnership that had a business relationship with
plaintiffs employer. In holding that plaintiffs direct employer,
Cushman & Wakefield, could be liable under CEPA in those
circumstances, the New Jersey Supreme Court stated "that a
business relationship at the time of the disclosure can provide
an incentive for the collusion that CEPA sought to discourage. A
contrary holding would provide a disincentive for an employee to
report an employer's illegal or unethical conduct. It would also
contravene the Legislative purpose of discouraging collusion
between employers." Id. at 130, 675 A.2d 1094. Accordingly,
plaintiff was allowed to proceed with the CEPA claim against
his direct employer no action was brought or permitted against
the other business entity.
Although CEPA was amended to protect against retaliation when
an employee "blows the whistle" on "another employer" with whom
the employee's employer has a business relationship, this
amendment renders only the employee's direct employer liable.
The amendment does not cast liability upon the other employer
with whom the employees' employer has a business relationship.
This principle is clearly illustrated by Barratt. In the case
at bar, plaintiff is alleging collusion between Perimeter and
RVI. Plaintiff believes that RVI directed Perimeter to fire him
and that Perimeter complied because it feared losing the
contract with RVI. Even if this were true, RVI cannot be liable
under CEPA, although, Perimeter could be liable if it terminated
plaintiff for "blowing the whistle" on "another employer with
whom [Perimeter] had a business relationship". As a matter of
policy, absent legislation expressly extending liability to the
other business entity, liability must be limited to the direct
employer who ultimately controls plaintiffs terms of employment,
including termination. Consequently, this 1989 amendment to CEPA
does not render RVI liable to Plaintiff.
III. Plaintiff's Relationship With RVI Was That Of An
Having determined that independent contractors are not covered
by CEPA and that the term "another employer" does not render RVI
liable, I must decide whether plaintiff can be deemed an
employee of RVI. Whether an individual is an employee or an
independent contractor is a question of law to be determined by
the court in the absence of a disputed issue of
material fact. Metropolitan Pilots Association, L.L.C., v.
Schlosberg, 151 F. Supp.2d 511 (N.J. 2001); see also Cox v.
Master Lock, Co., 815 F. Supp. 844, 845 (E.D.Pa. 1993). There
are several tests in the employment law context that address
whether an individual is an employee or an independent
contractor. RVI suggests that the test discussed in Pukowsky,
312 N.J. Super. 171
, 711 A.2d 398
, is the appropriate analysis
for this case. See also Zippo, Mfg., 713 F.2d 32
; Franz v.
Raymond Eisenhardt & Sons, Inc., 732 F. Supp. 521 (N.J. 1990).
Plaintiff has not objected to the use of this test. Indeed, the
largely encompass the factors
enunciated in most settings. Twelve factors underlie the
(1) the employer's right to control means and manner
of employee's performance; (2) the kind of
occupation, supervised or unsupervised; (3) skill;
(4) who furnishes equipment and workplace; (5) the
length of time individual has worked for the company
employer; (6) the method of payment; (7) manner of
termination of the work relationship; (8) does the
individual accrue annual leave; (9) is the work the
individual performs an integral part of the
"employer's" business; (10) does the individual
accrue retirement benefits; (11) does the "employer"
pay social security taxes; and (12) the intention of
Pukowsky, 312 N.J. Super. at 182-183, 711 A.2d 398
Franz, 732 F. Supp. at 528.
The employer's right to control the "means and manner" of the
employee's performance is generally agreed to be one of the most
probative factors. See Metropolitan Pilots Association, L.L.C.
151 F. Supp.2d at 519 (citing Eisenberg v. Advance Relocation &
Storage, 237 F.3d 111, 115 (2d Cir. 2000)). Here, plaintiff
asserts that RVI retained the right to, and did in fact, control
his employment. He alleges that RVI's work orders specified the
manner in which asbestos was to be removed from the plant, and
that plaintiff had to secure RVI's approval before commencing
any work. Plaintiff cites to contract provisions which are not
in dispute to support his argument that RVI controlled the means
and manner of employment and supervised his work:
(1) all work was done "in accordance with written
Maintenance Work Order Requests issued by RVI"
(Exhibit D, deposition transcript of Robert Pursell
at 22:8-10); (2) all work was done in accordance with
the budget and schedule set on the maintenance orders
by RVI (Exhibit D, deposition transcript of
Robert Pursell at 30:4-14); (3) all submittals,
dimensions and contigous work was done with the
approval of RVI (Exhibit D at 32:7-33:12); and (4)
RVI had a right to require Perimeter representatives
to attend meetings. (Exhibit D at 25:11-14;
RVI also mandated compliance with its standard operating
procedures and oversaw plaintiffs completion of his work. Based
upon these facts, the Court finds that there were some indicia
of control or supervision by RVI, but that this supervision was
limited to ensuring compliance with safety procedures, promoting
efficiency, managing its budget, establishing administrative
processes, and maintaining control over its premises. (Factor
1). In addition, it is not disputed that DaBronzo independently
exercised his expertise in removing and handling asbestos,
albeit within the bounds of safety procedures required by RVI.
(Factors 1 and 2). Thus, on balance, the first factor does not
weigh in favor of either party.
Clearly, the removal of asbestos requires a specialized skill
which was not possessed by RVI employees, and thus caused RVI to
seek Perimeter's and plaintiffs services. (Factor 3). Moreover,
this unique skill is unrelated to, and not an integral part of,
the vitamin business of RVI. (Factor 9). Additionally, Perimeter
provided the labor and the equipment for each job. The contract
with RVI specified "[o]n a cost fixed fee basis, CONTRACTOR
shall provide all supervision, labor, equipment, and materials
required to complete construction, repair, installation, and
maintenance projects (the "Services") in connection with the
Belvidere, N.J. facility of RVI in accordance with written
Maintenance Work Order Requests issued by RVI . . .". Plaintiffs
Opposition Brief, Exhibit B ¶ 2.1(a). (Factor 4). DaBronzo, as
foreman, supervised the work of other Perimeter employees
performing under the work orders. (Factor 2).
Conversely, DaBronzo's longevity at the RVI site militates in
favor of plaintiffs position. Plaintiff had worked at the RVI
site for approximately thirty (30) years. During this time he
was employed by Woolsulate for 24 years and by Perimeter for the
remaining years. (Factor 5).
As to the factors which focus on the method of payment and the
accrual of annual leave, there is no dispute that Perimeter was
responsible for the administration of plaintiffs employment.
Indeed, the contract between the parties provides for such.
"CONTRACTOR is responsible for staffing the Services and
providing any and all compensation and/or insurance to its staff
members. Id. at ¶ 18.1(a); see also Declaration of Robert
Pursell at 14 ("RVI does not pay Perimeter's employees and does
not issue W2s, 1099s or other forms relating to wage or other
payments to Perimeter's employees"). (Factors 6 and 8).
According to the contract, RVI had the right to direct
Perimeter to remove any employee from its facility. "RVI has the
right, at its sole discretion, to require CONTRACTOR to
immediately remove any employee, subcontractor, supplier, or
agent of CONTRACTOR employed at RVI's premises whom RVI deems
incompetent or a hindrance to the proper progress of the work,
and such person shall not again be employed on RVI's premises
without the prior written consent of RVI". Id. at ¶ 11.12. RVI
has exercised its right to remove independent contractors from
its work sites approximately six (6) times*fn12,
although it has never before removed an independent contractor
from the Belvidere, New Jersey manufacturing plant. Notably, the
contract speaks only to RVI's right to remove an employee from
the work site and does not empower RVI to make termination
decisions for Perimeter. Perimeter retained the ultimate
authority to terminate plaintiff from its company's employ.
Plaintiff has submitted no evidence that Perimeter could not
have employed him at another work site or in another capacity.
Thus, the decision to terminate DaBronzo, rather than simply
remove him from RVI's site, rested solely with Perimeter.
Importantly, the contract between RVI and Perimeter provides
that Perimeter is responsible for plaintiffs retirement benefits
and the payment of Social Security taxes. There is also no
dispute between the parties that Perimeter did satisfy these
obligations. (Factors 10 and 11). In addition, RVI had no
control over plaintiffs vacation schedule or pension, and he was
not eligible to subscribe to any employee benefit packages offer
by RVI. See id. at ¶ 18.1(a).
Finally, according to the contract, it was the stated
intention of the parties to classify Perimeter and its employees
as independent contractors. "Neither CONTRACTOR nor its
subcontractors nor the employees of either, shall be deemed to
be the servants, employees, or agents of [RVI]. CONTRACTOR
understands and agrees that, for purposes of this AGREEMENT,
CONTRACTOR and any employee (s) or other individual (s)
designated by CONTRACTOR to perform Services under this
Agreement ("staff members") are acting in the capacity of
independent contractors". See id. (Factor 12).
Based upon the undisputed facts, balancing all of the factors
of the Pukowsky test, and viewing the evidence in the light
most favorable to plaintiff, this Court finds as a matter of law
that plaintiff was an independent contractor and not an employee
of RVI. Therefore, as an independent contractor, plaintiff
cannot sustain a claim against RVI pursuant to CEPA.
Having determined that plaintiff was an independent contractor
of RVI, and that the New Jersey CEPA does not extend its
protections to independent contractors, summary judgment is
granted in favor of RVI.
This matter having been opened to the Court by John A. Ridley,
Esq., counsel for defendant, Roche Vitamins Inc., seeking
summary judgment, pursuant to Fed.R.Civ.P. 56, against
plaintiff Thomas DaBronzo, and the Court having reviewed the
moving, opposition, and reply papers, and having heard oral
argument on September 20, 2002, and further having entered an
Opinion on this date setting forth the Court's decision in this
matter, and for good cause shown,
IT IS on this 17th day of October, 2002,
ORDERED that defendants' motion for summary judgment is hereby