Current through Register Vol. 56, No. 18, September 16, 2024
(a) For the purposes of
18:35-7.2, the term "employee" means
every individual performing services if the relationship between the individual and
the person for whom he or she performs such services is the legal relationship of
employer and employee. The term also includes officers and employees, whether
elected or appointed, of the United States, a state, territory, Puerto Rico, or any
political subdivision thereof, or the District of Columbia, or any agency or
instrumentality of any one or more of the foregoing.
(b) When determining whether an individual is in
an employer-employee relationship, relevant factors shall be considered, including
the following:
1. The relationship which the
parties believe they have created;
2.
The extent of control exercisable by the person receiving the benefit of the
services over the manner and method of performance. It is not necessary that the
employer actually direct or control the manner of performance, but it is sufficient
if he or she has the right to do so;
3.
Whether the person rendering the service undertook substantial costs to perform the
service;
4. Whether the service required
special training or skill, and whether the person receiving the benefit of the
services provided such special training;
5. The duration of the relationship between the
parties;
6. Whether the person rendering
the service had a risk of loss;
7.
Whether the person who received the benefit of the services could discharge without
cause the person who performed the services;
8. The method of payment, such as by time or by
job;
9. Whether the person rendering
services regularly performs the same services for other persons and is not protected
to any degree from competition;
10.
Whether the person for whom services are performed furnishes tools, equipment,
support staff and a place to work to the individual rendering the
services;
11. Whether the individual
rendering the services is eligible for employer provided benefits such as pension,
bonuses, paid vacation days and sick pay;
12. Whether the person receiving the benefits of
the services rendered carries workmen's compensation insurance on the individual
performing the services;
13. Whether the
Internal Revenue Service determines that an individual performing services is an
employee; and
14. Any other information
deemed to be relevant by the Division.
(c) No single factor in (b) above shall
necessarily be conclusive in determining whether an individual is an employee or
self-employed. The final determination as to whether an individual is either an
employee or self-employed shall be based upon the review of the circumstances of the
entire relationship and the evaluation of any special facts in a particular
case.
(d) If the relationship of
employer and employee exists, the designation or description of the relationship by
the parties as anything other than that of employer and employee shall be
immaterial, including designation as a partner, co-adventurer, agent, independent
contractor, or similar designations or descriptions.
(e) All classes or grades of employees shall be
included within the relationship of employer and employee, including
Superintendents, managers, and other supervisory personnel:
1. An officer of a corporation shall be considered
an employee of the corporation, except that an officer of a corporation who as such
does not perform any services, or performs only minor services, and who neither
receives nor is entitled to receive, directly or indirectly, any remuneration shall
not be considered an employee of the corporation.
2. A director of a corporation in his or her
capacity as such shall not be considered an employee of the corporation.
