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Lopez v. Moser

July 8, 2010

LUVIA LOPEZ, PETITIONER-APPELLANT,
v.
LISA MOSER, RESPONDENT-RESPONDENT.



On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 9, 2010

Before Judges Sabatino and J. N. Harris.

The pivotal issue in this workers' compensation case is whether petitioner was acting in a capacity as respondent's employee when she injured herself while cleaning respondent's kitchen. Because we concur with the compensation judge's finding that petitioner was an independent contractor and not respondent's employee, we affirm the dismissal of her petition for benefits.

The relevant facts are not complicated. About four to six years ago, petitioner Luvia Lopez and her friend Lucretia Uresal*fn1 started a housecleaning business together. In that business venture, petitioner and Uresal provided "basic cleaning" services, including dusting, vacuuming, sweeping, and bathroom cleaning. The homeowners were expected to provide them with the necessary cleaning supplies. Through this joint venture, petitioner and Uresal cleaned numerous houses on five or six days each week, working six to eight hours each day.

Petitioner and Uresal charged their customers between $60 and $80 per cleaning, depending upon the size of the house. The customers typically paid them in cash, and the two women would evenly split the money. The customers did not withhold sums for Social Security or any other common payroll deductions.

Petitioner and Uresal printed fliers that advertised their service as "Two Ladies Cleaning." They also printed up a business card utilizing that name. However, the women did not create a business listing, or register their trade name. Nor did they form a corporation or any other licensed business enterprise.

At some point in 2006, respondent Lisa Moser, after receiving the flyer, inquired about the availability of petitioner and Uresal to clean her house in Hamilton Township. Respondent was then pregnant and she needed someone to do "general house cleaning." The parties agreed that the cleaners would come to respondent's home on alternate Fridays between the hours of 10:00 a.m. and 2:00 p.m. The parties also agreed upon a price of $60 per cleaning visit. Consistent with the business's usual practices, respondent provided the cleaning supplies.

Prior to the accident in question, petitioner and Uresal cleaned respondent's house approximately three times. They spent roughly three hours cleaning her house on each occasion, but if they stayed longer than three hours they were still only paid the agreed-upon $60 charge. In paying for the cleaning service, respondent did not withhold any unemployment deductions, Social Security, or taxes. She did not pay the two cleaners individually, but instead "hand[ed] $60 to one of them[.]"

Petitioner and Uresal generally cleaned respondent's home without her supervision and according to their own arrangements. On one or two occasions, respondent asked them to perform additional cleaning. Respondent did not have to call to tell the cleaners to come to her house; rather, the cleaners would arrive at the prescribed time on a regular basis.

The incident that gave rise to petitioner's claim for workers' compensation occurred on June 2, 2006, while petitioner was cleaning the top of respondent's refrigerator. Petitioner was standing on a chair and fell, sustaining an injury to her arm. At the time of petitioner's fall, respondent was not present in the house, but her sixteen-year-old daughter was there. Respondent had not instructed her daughter to check on the cleaners while they were working to "see what they were doing."

After the incident, petitioner and Uresal cleaned respondent's house on one more occasion. Following that last visit, respondent's family took care of the housecleaning without hiring another commercial service.

In February 2008, petitioner filed a petition for workers' compensation benefits against respondent. Respondent filed an answer which, among other things, denied being petitioner's employer. The compensation judge assigned to the case then bifurcated the issues of ...


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