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Lesniewski v. W.B. Furze Corp.2/23/1998
's, petitioner was paid by Furze Corp. This weighs against Furze's contention that there was a change in the relationship. EJ's explains that the change in the method of payment in April 1995 merely reflects an additional means Furze used to keep employees off of his payroll. It contends that by having EJ's draw blank checks, Furze Corp. was able to avoid increases in its workers' compensation insurance premiums and avoid payroll taxes. Furze, of course, denied the allegations, and petitioner understood the new arrangement was because Furze was having cash-flow problems and that Furze and EJ's agreed to "settle" it later. Again, Furze denied this contention. We conclude that these factual disputes detract from the weight that the method of payment factor contributes to the determination of the employment status issue.
Despite Furze's argument that EJ's gave its authority for petitioner to return to the job, the testimony indicates that Furze had discretion as to who to hire. He was merely told to get "some help." Thus, Furze appears to have had the right to hire and by implication the right to fire petitioner. From January through April, petitioner continued to receive his assignments and directions from Furze. That there was no change in the work relationship must be considered in applying the "control test."
The relative nature of the work test also weighs in favor of finding that there was no change. Petitioner was dependent upon Furze for employment since he worked at two other Furze construction sites besides EJ's. Petitioner benefitted from Furze's willingness to pay him "under the table" so that he could continue to collect unemployment compensation. Even when the payment method changed, petitioner was still paid under the table, by EJ's checks being made payable to his family members. Petitioner also used Furze's tools when necessary. These facts indicate that petitioner was dependent upon and became an integral part of Furze's business operation during the period in question.
Furze, nonetheless, urges that petitioner and EJ's should be equitably estopped from denying their employer/employee relationship. Furze contends that EJ's concealed the true relationship by not naming petitioner as "payee" on the four checks, thereby allowing petitioner to collect unemployment while EJ's was able to pay an employee while avoiding withholding taxes.
In determining whether to apply the doctrine of equitable estoppel, we consider whether "there was a course of conduct that, in its cumulative impact, was tantamount to a representation made by one party with the expectation that the other persons would rely on this conduct." Hoefers v. Jones, 288 N.J. Super. 590, 605 (Ch. Div. 1994), aff'd, 288 N.J. Super. 478 (App. Div. 1996). The party seeking relief must have detrimentally relied upon the tortfeasor's conduct, and the reliance must be reasonable. Ibid. We hold that regardless of the extent o
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