In a long-awaited decision, the New Jersey Appellate Division ruled in favor of Jim Prusinowski’s client, JerseyShore Reporting, that court reporters working in New Jersey through a court reporting agency, are exempt from contributing to unemployment taxes because they are not employees.
Since 2013 the New Jersey Department of Labor has claimed that a court reporting agency, Jersey Shore Reporting, (and all court reporters in the state) was liable to the New Jersey Unemployment Compensation fund for thousands of dollars, classifying court reporters as employees. However, since their inception, court reporters have been believed to be independent contractors and in 2010 the New Jersey Legislatures codified their independence into law.
Prior to the 2010 amendment, court reporters were not singled out as being independent. Instead, they needed to meet the generally applicable ABC test which looks to independence, location or type of work, and ability to continue in business if an engagement ends.
While the DOL argued that the statutory amendment did not change the requirement to show independence, the Appellate Division gave the Legislature credit for its expertise and acknowledged that the plain language of the law classifies court reporters as independent contractors. According to the Appellate Division, the DoL’s interpretation of the statute was clearly wrong and not supported by its language or the legislative history.
“We are pleased that the Appellate Division has confirmed the statute is clear on its face and applies without the agencies having to provide further evidence of the reports’ independence. This is an industry of business minded individuals working through ‘brokers’ to acquire work. The statute, and decision, confirm their business model and operations as solo-preneurs,” said Jim Prusinowski, who argued the case before the Court and has represented JerseyShore reporting through this entire process.
For further information on court reporters as independent contractors or other issues related to independent contractors, consult one of the experienced labor and employee attorneys at Trimboli & Prusinowski, LLC. Call 973-285-1095 to set up an appointment with an experienced attorney who can assist you and your business.
EMPLOYERS: GET READY TO BE INTERACTIVE
As mentioned in a previous post, the ADA prohibits discrimination against individuals who have a disability. Employees who have a disability have the right to request reasonable accommodation. When the disability is obvious, the right to a reasonable accommodation is triggered even without an employee’s request. The first step in addressing a request for accommodation is the “interactive process.”
The first step in the interactive process is recognizing that the employee has requested an accommodation or needs an accommodation. Accommodation requests are not always obvious or blatant, as some requests are made subtly. For example, it is obvious that an employee has requested an accommodation when she states, “I am requesting an accommodation of my work schedule because of my chemotherapy treatments.” However, a less obvious request is an employee who uses a wheelchair and informs her employer that her wheelchair cannot fit under the desk. The second employee did not directly state that she needs an accommodation but nevertheless she has requested one. Once an employer recognizes that an employee is requesting an accommodation, an employer should request additional information in order to better understand and assist an employee. An employer should request a physician’s certification when the need for an accommodation is not obvious.
IMPORTANT NOTE: Employees only have to provide sufficient information when requested to provide a medical documentation. This means that if an employee’s physician states what the employee’s disability is and that she needs an accommodation, an employer cannot request further information. However, the employer may request medical documentation if appropriate to evaluate whether a requested accommodation will be effective in allowing the employee to perform the essential job functions.
After an employer gathers sufficient information and receives medical documentation, the employer should explore possible accommodation options. Sometimes an employee’s physician may provide the sufficient information to determine what accommodation the employee needs. However, this is not always the case. In such instances, the employer will have to work with the employee to determine the appropriate accommodation. Remember, accommodations only need to be reasonable, and need be sufficient only to allow the employee to perform the essential functions of the job. An employer is not required to acquiesce to every accommodation an employee requests. Employees are not automatically entitled to the accommodation of their choice, or to the “best” available accommodation. An accommodation that allows the employee to perform the essential functions of the job without posing a direct threat to the health and safety of the employee or others is sufficient. Similarly, if an employee’s request would create an undue hardship, an employer may likewise offer an alternative accommodation that would also accommodate the employee.
NOTE: Further discussion on what qualifies as an undue hardship will be provided in a subsequent post.
If an accommodation is made available to the employee, the employer should follow-up with the employee to ensure that the accommodation is effective. If an accommodation is not working for an employee, then the employee and employer can engage in the interactive process again.
For further information on the ADA and the interactive process, consult one of the experienced labor and employee attorneys at Trimboli & Prusinowski, LLC. Call 973-285-1095 to set up an appointment with an experienced attorney who can assist your business and you.