There are a limited number of defenses to workers' compensation claims in New Jersey. The best defenses are those which stop claims in their tracks. These are called "jurisdictional" defenses, meaning that if the defense exists the court has no jurisdiction or power to hear the claim. One common and well-known jurisdictional defense is the statute of limitations defense, but one which is perhaps less known is the defense of casual employment. This defense is one which employers need to be aware of in New Jersey.
The New Jersey Workers' Compensation Act excludes casual employees from compensation. The present definition of casual employment emerges in N.J.S.A. 34:15-36. It embraces two concepts, depending on whether the services rendered are in relation to a business, or whether they are unconnected to a business. If the services are connected to a business, they are casual if they occur only by chance or by pure accident. If they are not rendered in relation to a business, they are casual if the employment is not regular, periodic or recurring.
The casual employment defense is best illustrated in Martin v. Pollard, 271 N.J.Super. 551 (App.Div.), certif. denied 137 N.J. 307 (1994). In that case, Mr. Pollard owned two houses on the same street. One was rented to Donna Bartha, who was the live-in companion of Martin. The other house was a summer cottage. In June 1991, Pollard hired Martin to paint the summer cottage without any formal contract. Martin was supposed to keep track of his hours and would get paid $10 per hour on completion of the job. Pollard provided all material except for a ladder.
Sometime later Pollard hired Martin to apply a water sealant to the exterior of the house Bartha was renting, again on the same financial arrangements without a written contract. There were no set hours for work, but this time Martin supplied most of the supplies, the ladder and materials except for the water sealant provided by Pollard. After working for about 14 hours on the job over a period of a week, Martin lost his footing one day and fell from the roof, injuring his hip. The workers' compensation judge found that the employment was not casual because the work was not, in the view of the court, by chance or accidental. The appellate division reversed and found that the employment was casual. It held that Pollard was not in the business of renting properties just because he had two homes for rent, so the test should not be whether the employment was by accident or by chance. Further, even if Pollard were engaged in a business, the court held that it would be difficult to argue that having a house sealed or painted is any more integral to the rental business than it would be to call a plumber to fix a broken pipe. Those who do occasional repairs on rental properties are not employees under this standard.
The defense to many claims under a homeowner's policy, (which includes coverage in New Jersey for occasional workers), is often casual employment. An example comes from DeMarco v. Bouchard, 274 N.J. Super. 197 (L.D. 1994). In that case, the plaintiff, a babysitter, filed a civil action against the defendant homeowners, for an injury which occurred when plaintiff tripped while walking along an uneven brick walkway on the property of the homeowners. Plaintiff wanted to be found not an employee so that she could proceed with the potentially more lucrative civil suit.
The court contrasted two cases in resolving DeMarco. First, it discussed Herritt v. McKenna, 77 N.J. Super. 409 (App. Div. 1962) in which a petitioner, 70 years old, had fallen in a home while babysitting three children. Petitioner had babysat eight different times in September and October 1960. At the time of the injury she was hired to look after the children from October30 through November4, 1960. She was paid $10 per day.
Since the employment in Herritt was unconnected to a business, the court focused on the terms "periodic" and "recurring," noting that all of the plaintiff's services were for isolated periods without continuity. It therefore held plaintiff to be a casual employee, not entitled to compensation.
In the other case which the court reviewed, Balmforth v. McMurray, 81 N.J. Super. 109 (Cty. Ct. 1963), a babysitter slipped on a rug, suffering injuries. Plaintiff worked two to three times per week for at least a year prior to the accident. The court concluded that this was periodic and recurring, so the plaintiff was found to be an employee.
Using these two cases for background, the court in DeMarco had no difficulty in finding that plaintiff was a casual employee because the injury occurred on the first day of the job and there was no agreement to retain her on a recurring basis in the future.
To summarize, the casual employment defense can be very helpful when brief, accidental or non-recurring employments are at issue. The employer has the burden of proving the defense. If the employer succeeds, the claim must be dismissed.