On appeal from a Final Decision of the Board of Review, Department of Labor.
Before Judges Collester, Parrillo and Grall.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 28, 2004
The issue in this appeal is whether an agent who provided services for the Motor Vehicles Commission (MVC)*fn1 at a privatized motor vehicle agency is an employee or independent contractor for purposes of the Unemployment Compensation Law, N.J.S.A. 43:21-1 to 24.4 (UCL). Claimant, James Van Sickle, Jr., appeals from a final decision of the Board of Review (Board) denying his unemployment benefits claim because the services he provided for respondent MVC did not constitute"employment." For reasons that follow, we affirm.
We view the exclusive issue in this appeal against the backdrop of the 1995 privatization of certain State-operated motor vehicle agencies by an executive order of reorganization issued pursuant to N.J.S.A. 52:14C-1 to -11, following a nine year period when twenty-five agencies were being operated directly by the MVC. This change in New Jersey's motor vehicle agency system was documented in earlier decisions of this court. Communication Workers of Am. v. Whitman, 298 N.J. Super. 162 (App. Div. 1997) (Communication Workers I), and (Communication Workers of Am. v. Whitman, 335 N.J. Super. 283 (App. Div. 2000) (Communication Workers II), certif. denied, 167 N.J. 636 (2001). We have explained:
Since 1986, efficiency of direct State operation has been explored, using a hybrid system in which about half the Motor Vehicle agencies remained private and half were operated by the State. The new plan again privatizes the local agencies that the [MVC] had been operating, with the Director continuing to appoint private Motor Vehicle agents as independent contractors under N.J.S.A. 39:3-3.
[Communication Workers II, supra, 335 N.J. Super. at 286 (quoting Communication Workers I, supra, 298 N.J. Super. at 165-66).].
The other significant feature of the change was the transfer of the MVC from the Department of Law and Public Safety to the Department of Transportation"[i]n order to more efficiently manage and administer the State's motor vehicle services[.]" See Executive Reorganization Plan No. 002-1995, 27 N.J.R. 1340 (Apr. 3, 1995).
Pursuant to his contract with the MVC, claimant performed services as a motor vehicle agent from January 1, 1997, through September 30, 2002, when his authority to continue acting as an agent was revoked by the MVC pursuant to N.J.S.A. 39:3-3. As a motor vehicle agent, claimant's responsibilities included registering motor vehicles, licensing drivers, processing registration certificates, and collecting fees, taxes, and plates. According to the agreement, Van Sickle received an annual payment of $300,612.08 to compensate him"for all allowable [MVC] Agency expenses incurred by" him, including compensation for his employees and himself. In addition, Van Sickle was"eligible for an incentive and/or bonus award... of a maximum of $23,000 per calendar year." The incentive or bonus awards were to be calculated according to the number of"items" processed by Van Sickle and his employees, such as"license plates, drivers' licenses, permits, registration certificates, and certificates of ownership."
Significantly, claimant stipulated in the contract that he is an independent contractor, and not an employee of the MVC, entitled to none of the rights accorded the latter status:
The Agent, in accordance with its status as an independent contractor, covenants and agrees that it will conduct itself consistent with such status, that it will neither hold itself out as, nor claim to be, an officer or employee of the State by reason hereof. The Agent will not, by reason hereof, make any claim, demand or application to or for any right or privilege applicable to an officer or employee of the State, including but not limited to workers' compensation coverage, unemployment insurance benefits, social security coverage, or retirement membership or credit.
Consistent with this stipulation, claimant obtained a Federal tax number and filed a 1099 form as a self-employed individual for income tax purposes.
Upon revocation of his authority to act as a motor vehicle agent, Van Sickle filed a claim for unemployment benefits, which was initially denied on the ground"that he lacked sufficient base weeks or sufficient base year wages to establish a valid claim." The Appeal Tribunal reversed this determination, finding claimant entitled to benefits because he did not satisfy the three prongs of the so-called"ABC test" of self-employment under N.J.S.A. 43:21-19(i)(6)(A),(B),(C). On further appeal, the Board remanded the matter to the Appeal Tribunal, where claimant was again found"not self-employed" nor an independent ...