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<\/figure>\nThere are several fun X accounts that provide fun facts about maps. Some of my favorites are @amazingmap, @brilliantmaps, and @mapporntweet. There\u2019s also the tongue-in-cheek @terriblemaps, which is also a fun follow.<\/p>\n
All of these sites, obviously, deal with real places. A place is a physical location, right? Not necessarily, according to a federal judge in New Jersey, who recently issued a startling decision in an independent contractor misclassification case. <\/p>\n
In Tomasello v ICF Technology<\/a><\/em>, the court considered misclassification claims by an adult-content streaming performer who posted on a site called Streamate. The performer had full control over the content she posted, decided what to post, when to post, and where to post. Streamate essentially just provided a commerce platform where she could offer her \u201cperformances\u201d to The performer\u2019s lawsuit alleged that she was misclassified as an independent contractor under the FLSA and two New Jersey wage statutes (NJWHL and NJWPL).<\/p>\n In evaluating cross-motions for summary judgment, the court first analyzed the performer\u2019s classification under the FLSA and its Economic Realities Test. The court ruled that she was an independent contractor under this test. Easy.<\/p>\n But the New Jersey law analysis went in a very different direction.<\/p>\n Under NJ law, worker classification is analyzed under an ABC Test. To be an independent contractor, all three prongs must be met:<\/p>\n (A) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his [or her] contract of service and in fact; and <\/p>\n (B) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and <\/p>\n (C) Such individual is customarily engaged in an independently established trade, occupation, profession or business.<\/p>\n Prong A, control, weighed in favor of IC status. Prong C also weighed in favor of IC status.<\/p>\n But an ABC Test requires all three prongs to be satisfied. And that\u2019s where this case went off the rails. New Jersey\u2019s ABC Test allows for two ways to satisfy Prong B (unlike the stricter tests in California and Massachusetts). The court concluded that the performer\u2019s services were not \u201coutside the usual course\u201d of Streamate\u2019s business, but that leaves the second option for satisfying Prong B, which is much easier to meet.<\/p>\n To satisfy the second option for Prong B, the work must be performed \u201coutside of all the places of business of the enterprise for which such service is performed.\u201d That should be easy to prove too, right? She streamed from her home, not from a Streamate office. Under all conventional interpretations of \u201coutside the usual places of business,\u201d the fact that she streamed from her home would be enough to satisfy this part of the test and therefore satisfy Prong B.<\/p>\n But this court decided that Streamate\u2019s place of business was online, and so by posting her performances online, on Streamate\u2019s platform, the performer was providing services at Streamate\u2019s place of business.<\/p>\n This is an absurd and overly broad interpretation of the requirements of prong B. In fact, when the NJ DOL recently proposed and adopted interpretive guidance for the ABC Test, the NJ DOL initially proposed a similar interpretation for Prong B, but after loads of comments from the business community explaining how that interpretation was Looney Toons, the NJ DOL backed down <\/a>and omitted that interpretation from its final guidance. In fact, the final guidance added the important clarification that when work is performed at the contractor\u2019s residence, the residence is not an employer\u2019s \u201cplace of business.\u201d<\/p>\n This judge didn\u2019t get the memo. The court\u2019s interpretation is so far outside of the norm that even the NJ DOL would not agree with it, and that\u2019s a state DOL that was aiming, through its guidance, to make it harder than ever to maintain IC status. Even the NJ DOL didn\u2019t go this<\/em> far.<\/p>\n This decision is a good reminder of several dangers to businesses that maintain IC relationships:<\/p>\n Firs<\/span>t<\/span>, a worker can be a contractor under one law (FLSA, for example) and an employee under other laws (New Jersey wage and hour laws).<\/p>\n Second<\/span>, judges don\u2019t necessarily follow administrative guidance. This cuts both ways. Courts typically must rely on case law when interpreting statutes, but they are not bound by administrative interpretations of statutes.<\/p>\n Third<\/span>, different judges will reach different conclusions based on the same facts. It really does<\/em> matter which judge you draw in litigation. I have to believe that nine-and-a-half judges out of ten would have easily concluded that Prong B was met here because the performer worked from her house. The defendant here got a bad draw. The company should have better luck on appeal, if it doesn\u2019t settle the case first.<\/p>\n Finally<\/span>, misclassification analysis is not predictable. There are lots of things we can do to reduce the risks of misclassification in any relationship. But, as a decision like this shows, a court can still find misclassification even when the contractor clearly works independently and operates her own business venture.<\/p>\n Businesses with contractors in New Jersey need to be aware of the NJ ABC Test and the overly broad way it was interpreted here. And check out the map sites. They are a good reminder that a \u201cplace\u201d means an actual place, not online ether.<\/p>\n \u00a9 2026 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.<\/em><\/p>\n \u00a0<\/p>\n<\/p><\/div>\nhorny men<\/s> paying customers.<\/p>\n![\"2018_Web100Badge\"](\"https:\/\/whoismyemployee.com\/wp-content\/uploads\/2018\/11\/2018_web100badge1.jpg\")
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