NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 22, 2013
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4456-11.
Alice Davis argued the cause for appellants (Legal Services of New Jersey, attorneys; Ms. Davis, Keith Talbot and Sarah Hymowitz, on the brief).
Respondents have not filed a brief.
Before Judges Graves and Espinosa.
In February 2008, plaintiffs Juan Ruiz and Luis Perez filed claim forms with the Department of Labor (DOL), in which they alleged they had been employed to paint houses and that unpaid wages were due to them. They identified their employer as "Rainer Painting Co. and South Jersey Painting Co., " but also named the "corporate officers/owner(s)" as "Sub-contractor – Ramasan [sic]." The claim forms were accompanied by a letter in which plaintiffs' counsel asked that the case be investigated as a "joint employer" case.
The ensuing investigation revealed that defendant South Jersey Painting Co., Inc. (South Jersey) had subcontracted the work to Ramazan Acikel Painting (Acikel). South Jersey produced records that showed it had paid Acikel for the work performed. In August 2008, DOL entered a final order, determining that Acikel (and Ramazan Acikel, individually) owed wages of $7806.78 to plaintiffs, and assessing an administrative fee and penalty of $3780.68. This order was docketed as a judgment against Acikel in December 2008.
Thereafter, plaintiffs requested a formal wage hearing for the same unpaid wage claim against defendants South Jersey, Burton Spitzer, and Eric Spitzer, the President and Operations Manager of South Jersey, respectively (the SJP defendants). Plaintiffs argued that the SJP defendants should be liable for the unpaid wages as joint employers. The DOL referee dismissed the claims against the SJP defendants.
Plaintiffs appealed this decision to the Superior Court. Following an evidentiary hearing, the Law Division judge found that plaintiffs were employed by and paid by Acikel, who was an independent contractor. The judge further found that the SJP defendants did not supervise or control the work performed on a daily basis. Accordingly, the court affirmed the judgment against Acikel and the dismissal of the claims against the SJP defendants.
Plaintiffs raise the following arguments in this appeal:
THE COURT BELOW USED THE INCORRECT TEST TO DETERMINE THE PLAINTIFFS' EMPLOYMENT STATUS SINCE THERE IS NO DISPUTE THAT THE PLAINTIFFS WERE ...