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Lesniewski v. W.B. Furze Corp.2/23/1998
discretion as to when work would be completed and performed similar services for other farmers); Clark v. Hughey, 117 N.E.2d 360, 361 (Ind. 1954) (finding that carpenter, who provided his own supplies and tools but was observed by the owner and was paid an hourly wage, was an employee and that, in case of doubt, relationship should be resolved in favor of employee status).
Here, Furze was compensated at a daily rate, and as the above cases demonstrate a daily rate often indicates that an employer has a right of control over the time in which work is completed and whether to terminate the employee. However, the daily rate paid to Furze did not provide EJ's with the opportunity or ability to control the hours Furze worked. In supervising the work of other contractors, Furze's hours and pace were tied to that of the contractors. Additionally, as is characteristic of a contractor, the parties agreed that Furze would act as a supervisor for a set period until the completion of construction. Thus, even though Furze was paid a daily rate, that rate could not be used to control Furze because his daily work schedule and pace were tied to that of the other independent contractors, and his term of employment was established by agreement of the parties.
Assuming the daily rate had weighed in favor of finding an employer/employee relationship, other factors weigh strongly against it. Even after January, Furze continued to obtain his supplies on Furze Corp. credit, and company invoices continued to be submitted to EJ's. Moreover, the record does not indicate that EJ's provided any direction or supervision over Furze at the site. Thus, the control test weighs against concluding Furze was an employee.
Under the relative nature of work test, Furze Corp. maintained a separate identity during the period in question. The sign advertising Furze Corp. as a general contractor remained at the site for the duration of construction. Furze submitted company invoices to EJ's and EJ's made checks payable to Furze, the construction company, not Furze as an individual. Finally, Furze Corp. had at least two other jobs while working for EJ's as evidenced by petitioner's also working for Furze Corp. at the other sites. It appears that Furze Corp. was a viable, independent corporate business entity between January 1995 and April 1995. Thus, the relative nature of the work test weighs in favor of finding that Furze was an independent contractor during the period in question.
Furze Corp. asserts that EJ's was itself a contractor for Workers' Compensation purposes, because it incorporated for the purpose of building a restaurant and because it hired subcontractors. However, we have held that an owner of property is not a contractor for Workers' Compensation Act purposes in such circumstances. Pollack, supra, 253 N.J. Super. at 404. When an owner of property has a building constructed for the owner's use, the owner does not i
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