State Shorthand Reporting Services v. New Jersey Department of Labor and Workforce Development ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1500-21
A-1710-21
STATE SHORTHAND
REPORTING SERVICES,
APPROVED FOR PUBLICATION
Petitioner-Appellant, AS REDACTED
February 12, 2024
v. APPELLATE DIVISION
NEW JERSEY DEPARTMENT
OF LABOR AND WORKFORCE
DEVELOPMENT,
Respondent-Respondent.
_______________________________
JERSEY SHORE REPORTING,
LLC,
Petitioner-Appellant,
v.
NEW JERSEY DEPARTMENT
OF LABOR AND WORKFORCE
DEVELOPMENT,
Respondent-Respondent.
_______________________________
Submitted (A-1500-21) and Argued (A-1710-21)
January 16, 2024 — Decided February 12, 2024
Before Judges Mawla, Marczyk, and Chase.
On appeal from the New Jersey Department of Labor
and Workforce Development, Docket Nos. 14-001 and
14-003.
Martin Melody, LLC, attorneys for appellant State
Shorthand Reporting Services, Inc. in A-1500-21
(Eugene J. Melody, of counsel; Nancy S. Martin, on the
briefs).
James Prusinowski argued the cause for appellant
Jersey Shore Reporting, LLC in A-1710-21 (Trimboli
& Prusinowski, LLC, attorneys; James Prusinowski and
Brittany Rose Naimoli, on the briefs).
Ryne Anthony Spengler, Deputy Attorney General,
argued the cause for respondent Department of Labor
and Workforce Development (Matthew J. Platkin,
Attorney General, attorney; Donna Sue Arons,
Assistant Attorney General, of counsel; Kendall James
Collins, Deputy Attorney General, on the briefs).
Einhorn, Barbarito, Frost & Botwinick, PC, attorneys
for amicus curiae Certified Court Reporters
Association of New Jersey in A-1710-21 (Andrew Seth
Berns, of counsel and on the brief; Matheu D. Nunn, on
the brief).
The opinion of the court was delivered by
MARCZYK, J.A.D.
In this appeal, as an issue of first impression, we are asked to consider
whether N.J.S.A. 43:21-19(i)(10)—from the time of its enactment in 2010—
provides an exemption for court reporters under the Unemployment
Compensation Law ("UCL"), N.J.S.A. 43:21-1 to -71, or whether court reporters
A-1500-21
2
must still establish a Federal Unemployment Tax Act ("FUTA") exemption
pursuant N.J.S.A. 43:21-19(i)(1)(G). For the reasons set forth below, we have
determined N.J.S.A. 43:21-19(i)(10) does provide such an exemption and there
is no requirement for court reporters to establish a FUTA exemption.
We consolidate these two appeals for the purpose of issuing a single
opinion. Petitioner Jersey Shore Reporting, LLC ("JSR") appeals from a
December 31, 2021 final administrative action of the Commissioner of the
Department of Labor and Workforce Development ("DOL") finding JSR liable
for contributions under the UCL. Petitioner State Shorthand Reporting Services
("SSRS") also appeals from the Commissioner's December 31, 2021 final
administrative action finding SSRS responsible for contributions under the
UCL. Although we conclude SSRS and JSR are entitled to an exemption under
N.J.S.A. 43:21-19(i)(10), the DOL audited SSRS and JSR for time periods both
before and after that statute's January 16, 2010 effective date. We conclude the
exemption applies to the audit dates after January 16, 2010.
Regarding the audit periods prior to January 16, 2010, we address in the
unpublished portion of this opinion whether JSR and SSRS satisfied N.J.S.A.
43:21-19(i)(6)(A) to (C) ("the ABC test") for the purpose of establishing that
the reporters were independent contractors during that time period. We
determine the Commissioner did not act in an arbitrary or capricious manner in
A-1500-21
3
finding petitioners failed to satisfy the ABC test. Accordingly, we reverse in
part, affirm in part, and remand for the Commissioner to recalculate the
assessments owed by petitioners consistent with this opinion.
I.
A.
We derive the following from the record as it pertains to JSR. JSR is a
registered court reporting agency that provides legal transcription services to
attorneys, courts, and public agencies. The owners of JSR are not court reporters
and therefore only handle administrative matters and brokering the services of
court reporters. JSR fills numerous court reporting jobs each day and solicits
reporters with a mass email based on reporters' preference concerning the
location of the job and days and hours they are available. Generally, the first
reporter to respond gets the assignment. Reporters are not forced to take an
assignment and do not suffer any consequences for not agreeing to take a job.
If JSR cannot fill a slot, it reaches out to other agencies. Reporters are provided
the time and location of an assignment, but no specific instructions.
Once an event is completed, the reporter will inform JSR as to how many
transcripts have been requested, and JSR prints, delivers, and bills for the
services. Reporters can be compensated for an appearance, or an hourly rate
when no transcript is ordered, or on a per-page rate. Reporters who work with
A-1500-21
4
JSR also work with other agencies. The reporters provide their own
stenographic machines. JSR does not: have policies or procedures for reporters;
require reporters to work a certain number of hours; provide supplies; proofread
reporters' work; or pay for supplies or continuing education.
In August 2013, following an audit, the DOL assessed JSR for $39,236.06
in unpaid contributions to the DOL's unemployment and disability benefit funds
as a result of an audit from 2008-2010.1 In January 2015, JSR moved for
summary decision, asserting it was not liable for the contributions. The
administrative law judge ("ALJ") determined there were genuine issues of
material fact regarding whether the ABC test was met that necessitated a hearing
regarding JSR's liability for 2008 and 2009. The ALJ granted JSR's motion for
summary decision for the 2010 time period, finding N.J.S.A. 43:21-19(i)(10)
"amended the UCL . . . to specifically exempt services performed by legal
transcribers or court reporters irrespective of a parallel exemption under" the
FUTA.
On April 23, 2018, the DOL requested the Commissioner review the ALJ's
initial decision. On July 19, 2018, the Commissioner issued a decision and
1
The parties unsuccessfully attempted to mediate. In May 2014, JSR moved
for leave to appeal because the Office of Administrative Law ("OAL") failed to
transfer the contested case for a hearing. In May 2014, we ordered the case
transferred to the OAL for a hearing as a contested case.
A-1500-21
5
accepted the ALJ's denial of summary decision for the audit years of 2008 and
2009 but rejected the ALJ's summary decision for the audit year of 2010 based
on N.J.S.A. 43:21-19(i)(10). The Commissioner instead relied on N.J.S.A.
43:21-19(i)(1)(G), which states:
Notwithstanding any other provision of this subsection,
service in this State with respect to which the taxes
required to be paid under any federal law imposing a
tax against which credit may be taken for contributions
required to be paid into a state unemployment fund or
which as a condition for full tax credit against the tax
imposed by the [FUTA] is required to be covered under
the [UCL] . . . .
According to the Commissioner, N.J.S.A. 43:21-19(i)(1)(G) provides the mere
existence of a state exemption under N.J.S.A. 43:21-19(i)(10) is not enough, and
there must also be a parallel FUTA exemption to be relieved of the obligation
to pay unemployment taxes.
B.
SSRS is also a court reporting agency that provides transcription services
to various entities. It notes court reporters are "strictly regulated" and are
licensed through the Department of Consumer Affairs. They must pass a test
administered through a national court reporting association to become licensed
in New Jersey. The owner and operator of SSRS testified:
She maintains a list of certified court reporters and
assigns jobs to cover a court reporting project on an as
needed basis. Most of the court reporters may work for
A-1500-21
6
several different court reporting agencies at any given
time and do not work exclusively for [SSRS]. In
addition, they may accept or reject any assignment that
[SSRS] offers them. Once a reporter accepts a job, they
are given the date, time[,] and location of the job. The
reporters are responsible for their own equipment,
travel[,] and other job-related expenses. Once a
reporter transcribes a proceeding, he or she emails it to
[SSRS] for delivery to the client. [SSRS] handles all
the billing.
SSRS maintains it does not control or provide instructions for court
reporters. It asserts the reporters operate independently, are free to work
whenever they want, and set their own work schedule.
In August 2013, the DOL assessed SSRS for unpaid contributions to
unemployment and disability funds for the periods of 2006-2008 and 2011-2014.
Based on an audit of those time periods, SSRS had unpaid contributions of
$104,116.45—$38,340.44 for 2006-2008 and $65,776.01 for 2011-2014. SSRS
appealed, and the matter was transferred to the OAL for a hearing before an ALJ
as a contested case. The ALJ ultimately determined, based on the
Commissioner's prior decision in the JSR matter, the exemption under N.J.S.A.
43:21-19(i)(10) requires a parallel FUTA exemption.
II.
A.
JSR and SSRS argue they meet the exemption under N.J.S.A. 43:21-
19(i)(10) and therefore are not liable. They argue the statutory language is clear
A-1500-21
7
and unambiguous and that services provided by certified court reporters should
not be considered employment subject to the UCL. Moreover, the legislative
history of N.J.S.A. 43:21-19(i)(10) supports this interpretation.
JSR contends the Commissioner erred in finding N.J.S.A. 43:21-
19(i)(1)(G) applies to N.J.S.A. 43:21-19(i)(10), thus requiring court reporters to
establish a FUTA exemption. It argues the statute's context and relationship to
surrounding provisions shows N.J.S.A. 43:21-19(i)(1)(G) does not apply to
every provision in N.J.S.A. 43:21-19(i). According to JSR, the statute's
hierarchy shows N.J.S.A. 43:21-19(i)(1)(G), a sub-sub-section, is contained in
and applies only to the provisions in subsection N.J.S.A. 43:21-19(i)(1). That
is, the provision states it applies "[n]otwithstanding any other provision of this
subsection," but JSR contends that it is meant to apply to the actual subsection
of N.J.S.A. 43:21-19(i)(1), not the entire section of N.J.S.A. 43:21-19(i).
JSR argues the Legislature intended to amend the statute to remove the
FUTA exemption from N.J.S.A. 43:21-19(i)(10) requirements. If N.J.S.A.
43:21-19(i)(1)(G) imposed the FUTA exemption on all of N.J.S.A. 43:21-19(i),
JSR argues there would have been no modification to the statute. A FUTA
exemption was required prior to the 2010 amendment, so it follows the
Legislature amended the statute to exempt court reporters. Requiring reporters
to prove a FUTA exemption would render the 2010 amendment meaningless.
A-1500-21
8
JSR argues if the Legislature wanted to require a FUTA exemption on all
categories under the statute, it would have clearly articulated the requirement.
For example, N.J.S.A. 43:21-19(i)(7), which provides for twenty-seven
exemptions, qualifies the exemptions, noting they are available "[p]rovided that
such services are also exempt under the [FUTA] . . . ." JSR notes that if N.J.S.A.
43:21-19(i)(1)(G) applied to the entire statute, N.J.S.A. 43:21-19(i)(7) would be
redundant as it refers to the same tax credits and FUTA. As such, JSR and SSRS
assert the language of N.J.S.A. 43:21-19(i)(10) is clear and unambiguous, and
court reporting services are statutorily exempt from unemployment taxes.
Amicus curiae Certified Court Reporters Association of New Jersey
("CCRA") also contends N.J.S.A. 43:21-19(i)(10) is clear on its face, and the
legislative history explains that court reporters are now considered independent
contractors. Moreover, there is no basis to continue to require a corresponding
FUTA exemption under N.J.S.A. 43:21-19(i)(1)(G) given the enactment of
N.J.S.A. 43:21-19(i)(10). Furthermore, the Commissioner's interpretation
would render the amendment superfluous, and if the Legislature intended for the
FUTA exemption to still apply, there would have been no need to amend the
statute.
B.
A-1500-21
9
Although we review administrative decisions with a deferential standard
of review, "a reviewing court is 'in no way bound by [an] agency's interpretation
of a statute or its determination of a strictly legal issue.'" Allstars Auto Grp.,
Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 158 (2018) (alteration in
original) (quoting Dep't of Children & Fams. v. T.B., 207 N.J. 294, 302 (2011)).
"[If] an agency's determination . . . is a legal determination, the appellate court's
review is de novo." K.K. v. Div. of Med. Assistance and Health Servs., 453 N.J.
Super. 157, 161 (App. Div. 2018) (alteration in original) (quoting L.A. v. Bd. of
Educ. of Trenton, Mercer Cnty., 221 N.J. 192, 204 (2015)).
"The overriding goal" of statutory interpretation "is to determine . . . the
intent of the Legislature, and to give effect to that intent." State v. Hudson, 209
N.J. 513, 529 (2012). We begin with the understanding "the language of the
statute, and the words chosen by the Legislature should be accorded their
ordinary and accustomed meaning." Ibid. "Where the plain language of a statute
is clear, we enforce the statute as written." Correa v. Grossi, 458 N.J. Super.
571, 579 (App. Div. 2019) (citing DiProspero v. Penn, 183 N.J. 477, 492
(2005)).
Moreover, "[i]f the language leads to a clearly understood result, the
judicial inquiry ends without any need to resort to extrinsic sources." Hudson,
209 N.J. at 529. "[E]xtrinsic aids may not be used to create ambiguity when the
A-1500-21
10
plain language of the statute itself answers the interpretative question; however,
when the statutory language results in more than one reasonable interpretation,
then resort may be had to other construction tools . . . in the analysis." Id. at
529-30 (citing State v. Shelley, 205 N.J. 320, 323-24 (2011)). These may
"includ[e] legislative history, committee reports, and contemporaneous
construction." DiProspero, 183 N.J. at 492-93 (quoting Cherry Hill Manor
Assocs. v. Faugno, 182 N.J. 64, 75 (2004)).
N.J.S.A. 43:21-19(i)(10) in pertinent part provides:
Services performed by a legal transcriber, or certified
court reporter certified pursuant to P.L.1940, c.175
[(N.J.S.A. 45:15B-1 to -14)], shall not be deemed to be
employment subject to the [UCL], [N.J.S.A. 43:21-1 to
-71], if those services are provided to a third party by
the transcriber or reporter who is referred to the third
party pursuant to an agreement with another legal
transcriber or legal transcription service, or certified
court reporter or court reporting service, on a freelance
basis, compensation for which is based upon a fee per
transcript page, flat attendance fee, or other flat
minimum fee, or combination thereof, set forth in the
agreement.
[(Emphasis added).]
The express language of N.J.S.A. 43:21-19(i)(10) provides that services
performed by court reporters "shall not be deemed to be employment subject to"
the UCL. This provision is not qualified by reference to any FUTA exemption.
Prior to 2010, under N.J.S.A. 43:21-19(i)(7)(Y), court reporters were also
A-1500-21
11
exempt, provided they were "also exempt under . . . FUTA . . . ." N.J.S.A. 43:21-
19(i)(7)(Y) (2002). We presume the Legislature understood the implications of
removing court reporters from N.J.S.A. 43:21-19(i)(7)(Y) and the corresponding
FUTA mandate and placing the amendment in a different section, specifically
indicating that court reporting services are not to be considered employment
under the UCL. This amendment was designed so that court reporters would no
longer be required to establish a FUTA exemption pursuant to N.J.S.A. 43:21-
19(i)(7) and were, by the specific terms of the amendment, not to be considered
employees, but rather independent contractors. The Commissioner's
interpretation is at odds with the plain language of the statute.
The DOL asserted before the Commissioner that the Legislature may have
been "well intentioned" in adopting N.J.S.A. 43:21-19(i)(10) and attempting to
grant an exemption to court reporters, but the Legislature was unsuccessful
because N.J.S.A. 43:21-19(i)(1)(G) still requires that petitioners establish a
FUTA exemption. At oral argument, the DOL claimed the amendment set forth
in N.J.S.A. 43:21-19(i)(10) was effectively meaningless.
It is a "well-established canon of statutory interpretation" that the
Legislature is presumed to know the "judicial construction of its enactments."
Johnson v. Scaccetti, 192 N.J. 256, 276 (2007) (quoting DiProspero, 183 N.J. at
494), abrogated on other grounds, Cuevas v. Wentworth Grp., 226 N.J. 480, 506
A-1500-21
12
(2016). Moreover, "[t]he Legislature is presumed to be familiar with its existing
enactments and is presumed to intend that its newer enactments be harmonized
with the existing ones, in light of the Legislature's purpose." Correa, 458 N.J.
Super. at 580. In attempting to harmonize more recent amendments in the
context of existing statutory provisions, as always "[w]e will 'strive for an
interpretation that gives effect to all of the statutory provisions and does not
render any language inoperative, superfluous, void[,] or insignificant.'" Sanchez
v. Fitness Factory Edgewater, LLC, 242 N.J. 252, 261 (2020) (second alteration
in original) (quoting G.S. v. Dep't of Hum. Servs., 157 N.J. 161, 172 (1999)).
The Commissioner's interpretation of N.J.S.A. 43:21-19(i)(10) indicates
the Legislature failed to recognize the requirement under N.J.S.A. 43:21-
19(i)(1)(G) for an employer to still establish a FUTA exemption. The DOL
asserted there are no scenarios in which the new statute, N.J.S.A. 43:21-
19(i)(10), would apply to court reporters that was distinct from the operation of
the prior exemption under N.J.S.A. 43:21-19(i)(7)(Y). We reject such an
interpretation, which would render N.J.S.A. 43:21-19(i)(10) meaningless.
N.J.S.A. 43:21-19(i)(10) must be read in harmony with N.J.S.A. 43:21-
19(i)(7)(Y). The Legislature was fully aware of the prior requirement for court
reporters to establish a FUTA exemption under N.J.S.A. 43:21-19(i)(7)(Y),
which is why it amended the statute to remove the requirement for a FUTA
A-1500-21
13
exemption under N.J.S.A. 43:21-19(i)(10). The Legislature placed N.J.S.A.
43:21-19(i)(10) in a separate section, presumably to remove it from N.J.S.A.
43:21-19(i)(7), which requires a corresponding FUTA exemption. Moreover,
we agree with JSR that the requirement to establish a FUTA exemption under
N.J.S.A. 43:21-19(i)(1)(G) only applies to that specific subsection.
Although we agree a sensible reading of N.J.S.A. 43:21-19(i)(10)
provides an exemption for court reporters, to the extent the statutory language
results in more than one reasonable interpretation, the legislative hist ory
unequivocally establishes the Legislature intended to dispense with the
requirement to establish a FUTA exemption. The Senate Labor Committee
statement provided:
[T]he bill makes an individual who is a legal transcriber
and who works on a freelance basis, compensation for
which is based upon a fee per transcript page, flat
attendance fee, or other flat minimum fee, or
combination thereof, ineligible for unemployment
insurance (UI) benefits and thus not subject to UI taxes.
The bill provides the exemption to all such individuals
categorically without requiring a demonstration that
particular individuals are self-employed under the
standards provided by either the State UI statute or
federal tax rules.
....
The amendments also remove the requirement that the
exemption applies only if there is a parallel exemption
under federal UI law or if the individuals are found to
be self-employed by the IRS under its tax rules.
A-1500-21
14
[S. Labor Comm. Statement to S. 825 (May 4, 2009)
(emphasis added).] 2
The legislative history is unambiguous regarding the elimination of the
requirement for a FUTA exemption and bolsters our interpretation of the statute.
Accordingly, we reverse the Commissioner's holding with respect to the
applicability of N.J.S.A. 43:21-19(i)(10) and conclude petitioners are exempt
from the time of the enactment of the statute in 2010. We remand for the
Commissioner to calculate the assessment regarding those audit periods after the
enactment of N.J.S.A. 43:21-19(i)(10).
III.
[At the direction of the court, the published version
of this opinion omits Part III. R. 1:36-3.]
2
The Assembly Labor Committee statement closely mirrors the Senate's
legislative history. See A. Labor Comm. Statement to A. 3770 (Jan. 4, 2010).
A-1500-21
15