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Lake v. Board of Review

September 15, 2008

GLORIA MARIE LAKE, APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR, RESPONDENT, AND HOUSING AND COMMUNITY DEVELOPMENT NETWORK OF NEW JERSEY, DEFENDANT.



On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 143,530.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 26, 2008

Before Judges Payne and Alvarez.

Claimant, Gloria M. Lake, appeals from a final decision of the Board of Review disqualifying her from receipt of unemployment benefits as an independent contractor. We affirm.

The record reflects that, in 2000, Lake established Gloria's Cleaning Service as a sole proprietorship. Following employment by various individuals, a client referred her to the Housing and Community Development Network of New Jersey, a nonprofit affordable housing agency, and in April 2002, she submitted a proposal to perform cleaning services for it, two times a week, at a cost of $140 per week. The proposal was accepted by the Network on April 3, 2002. Network records in the form of 1099-MISC tax forms, introduced into evidence at an appeal tribunal hearing held on June 1, 2007, disclosed that the Network paid the cleaning service $9,272 in 2003, $8,160 in 2004, $7,911.90 in 2005, and $7420 in 2006.

Claimant's services were terminated in October 2007, and a different cleaning service was hired. Thereafter, claimant sought unemployment benefits, which were initially denied on the ground that claimant had not met any of the nine thresholds for receipt of benefits set forth in N.J.S.A. 43:21-4(e). Specifically, she was found to lack sufficient base weeks or sufficient base year wages to establish a valid claim. Following an appeal to an appeal tribunal, affirmance by it, and further appeal to the Board of Review, the matter was remanded to an appeal tribunal for rehearing and a new decision. The Board of Review instructed that additional testimony be taken from the claimant and the Network "as to whether or not the claimant was self employed or an employee of the company and whether or not the claimant had sufficient weeks and wages during the base year period to establish a valid claim for benefits."

On rehearing, evidence was presented that established the contractual nature of the relationship between claimant and the Network and the independence of claimant's operation from Network control or direction. Evidence also established that Gloria's Cleaning Service, on occasion, employed persons other than claimant, that it had clients other than the Network, and that it was free to seek additional clients during the time that it provided services to the Network and thereafter. As a final matter, it was established that the business of the cleaning service was entirely unrelated to that of the Network, the focus of which was the provision of affordable housing.

A decision by an appeal tribunal again finding claimant ineligible for benefits was affirmed on appeal by the Board of Review, which found claimant disqualified from receipt of benefits pursuant to N.J.S.A. 43:21-19(i)(6). That statute provides:

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.

The Board found all three provisions applicable to claimant, determining that she was free from direction or control over the performance of her office cleaning services, that those services were unrelated to the business of the Network, and that claimant's business constituted an independently established trade that had other clients before and during ...


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