On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-1896-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Reisner and Chambers.
Plaintiff Lois Scafuri appeals from a January 9, 2009 order granting summary judgment in favor of defendants Neiman Marcus, Inc. and Carman Ferraioli, and dismissing plaintiff's complaint against defendants under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49.*fn1
Plaintiff, who worked at a Sisley cosmetics counter in a Neiman Marcus department store, claimed that she was terminated from employment after she requested reasonable accommodation of a physical handicap, in violation of the LAD's prohibitions on handicap discrimination and reprisal. See N.J.S.A. 10:5-12a and -12d. For purposes of her LAD complaint, she contended that she was a joint employee of Neiman Marcus and Sisley Cosmetics USA, Inc. Without addressing the merits of the LAD claim against Neiman Marcus, the trial court granted summary judgment concluding that plaintiff was not a Neiman Marcus employee.
Our review of the trial court's grant of summary judgment is plenary, employing the same standard used by the trial court. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998), certif. denied, 154 N.J. 608 (1998). We conclude that summary judgment was mistakenly granted because there were disputes as to material facts, and viewing the facts in the light most favorable to plaintiff, she could prevail on the joint employment issue. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005).
We begin by reviewing the law on employee status for purposes of the LAD. The LAD prohibits discrimination by employers against employees, N.J.S.A. 10:5-12a, but the statute does not define "employee," other than to indicate that the term does not include domestic servants. See N.J.S.A. 10:5-5f. However, in construing the term, we must consider the LAD's fundamental purpose to eradicate workplace discrimination.*fn2
To determine whether plaintiff should be considered an employee of the State under the LAD, we are guided in our analysis by the LAD's purpose. It is remedial legislation, "enacted to protect not only the civil rights of individual aggrieved employees but also to protect the public's strong interest in a discrimination-free workplace." [Hoag v. Brown, 397 N.J. Super. 34, 47 (App. Div. 2007) (citation omitted).]
In some circumstances, a person may be deemed to be jointly employed by two entities for purposes of protection under the LAD. See Hoag v. Brown, supra, 397 N.J. Super. at 53; Hebard v. Basking Ridge Fire Co., 164 N.J. Super. 77, 82-84 (App. Div. 1978), appeal dismissed, 81 N.J. 294 (1979); Kurdyla v. Pinkerton Security, 197 F.R.D. 128 (D.N.J. 2000). See also Massarano v. New Jersey Transit, 400 N.J. Super. 474, 493 (App. Div. 2008) (finding joint employment for purposes of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8). However, because N.J.S.A. 10:5-12a prohibits discrimination by employers against employees, it has generally been held that this section does not protect persons who are genuinely functioning as independent contractors. See Pukowsky v. Caruso, 312 N.J. Super. 171, 180 (App. Div. 1998), certif. denied, 178 N.J. 31 (2003).
Courts addressing the employment issue use a twelve-part test adopted in Pukowsky, supra, 312 N.J. Super. at 182-83. The twelve factors are:
(1) the employer's right to control the means and manner of the worker's performance; (2) the kind of occupation--supervised or unsupervised; (3) skill; (4) who furnishes the equipment and workplace; (5) the length of time in which the individual has worked; (6) the method of payment; (7) the manner of termination of the work relationship; (8) whether there is annual leave; (9) whether the work is an integral part of the business of the "employer;" (10) whether the worker accrues retirement benefits; (11) whether the "employer" pays social security taxes; and (12) the intention of the parties. [Ibid. (citation omitted).]
"[T]he Pukowsky test is used to determine who is an employer in cases lacking an actual or customary employer-employee relationship, such as in instances of dual employment, or to ascertain whether the worker is really functioning as an independent contractor." Thomas v. County ...