will say that as the second most senior active judge on the court and the presiding all the time so it's going to be very different being you know one side of the other the other thing is that conference we have a tradition that the junior judge that i will suddenly speak first and we'll do some you know long talking and convincing if we right turn the conference over to other something thank you tom it's wonderful like i really don't think of myself i'm stepping out not stepping down so i will reduce my section that says analysis is a quote most the players claims target his employment status therefore the court will first examine whether the plaintiff is an employee or an independent contractor and that comes down to the  improperly i guess he would say analyze the judge to the next page has i think the summary of her analysis and and the martin is just one test that we're dealing with three and probably for tests here  only applied the federal test she did not apply any state law test that is correct judge but we have other counts under state law which have their own tests which new jersey supreme court i think that's not before us we review what the district  correct correct judge right and you would contend that although judge johnson decided that he was an employee that proper application of the martin test would would dictate that he is an independent here the question of employment status is far from straight forward that bites else begs the question if the if the question is if there is a question which is far from straightforward is it right for summary judgment the case law i believe says no  but she states you got to say in some facts of the relationship such as the continued an exclusive relationship importance of the service to the business paid up per hour basis the provisions of uniforms tools a form often associated with and the economic reality any of this was he was a full time employee they wanted somebody there full time they wanted somebody there that they controlled they wanted somebody there wearing their uniform they want to somebody that they would pay by the employee of this company rob he was a russian it's a good question during the course of the three to half year relationship in which he was told at the beginning i was he constantly s he made an employee eat and was constantly denied that but i thought twice he was offered i'll talk about the economy here are we should mention too that the point of the matter is he when he was not made an employee he was told he was going to be he wasn't at this point he went to russia went to russia for two months we want to russia he was in an employee multiservice didn't go to russia michael safire and went to russia for two months he came back he was told to be an employee he wasn't that the certification deposition of edward miller were you saying he was working cases where people incorporated they were paid by a company they work for somebody else were deemed to be an employee of the company that didn't pay them i believe it betrays the focus of the test as the economic realities of it says it's not the norm of the payment i understand th frequent akki trucking companies and garbage companies will have their drivers form an l l c and pay them there even though the economic reality is the first to work exclusively for this one company constantly s and said you told me this and they never changed it but there were two instances where it was offered in print that he rejected sure to explain that to me again if you go to the search haitian deposition of the record of edward miller who was a supervisor at the time he said that he spoke with the president of the company president and they agreed on terms the president and the supervisor he went and made that offer to mistr mr miller and sworn testimony says mr sperry and accepted then there was a letter they came back in which the terms were different they were not what was agreed to and was approved by the present company so mr s said these are not the terms there was another letter and that was where that was except that there's debate about whether it was accepted to wait but it was accepted but before any of that happened he accepted the  laws these laws were a code word for more than i thought these laws were passed in order primarily to protect workers who had no right getting powers and after i think that's a fair  option who were being taken advantage of by their employers it's this gentleman doesn't see fit that profile the concern is that the court relied solely on the structure of the relationship to find that he wasn't i think contractor and you're realities that it was more tie service that on an hourly basis for the work that that he was performing and isn't that that's not unusual in in the context of a contractor the that can't be the problem is that the  employee under statute you still need to focus on the actual relationship between the employee and employer or the worker and the employer to see if he or she is an employee or not but does not have the freedom to upheld the allegations in different situations i've never seen an allegation quite as then if you will as this one the allegations in the complaint do not indicate that scenario had a reasonable subjective or objective a reasonable belief that these fit under one of the six categories is something not free and it seems to me that this complaint and its allegations that there was some whether he complained of conduct that he reason believe violated one of those six one the six how it was a law and that's our concern the district court didn't get to that point of the analysis and sort of short circuited the analysis based on his position and based on the subject matter of his complaint and we think the type of complaint that he raised and the fact that he's an engineer and not an econo lawyer doesn't preclude him from engaging in protected activity the actual complaint needs to be analyzed ok thank you thank you the whole point of the six factor test is to look at the economic reality of the relationship between the putative employer and employee such that the structure really structure doesn't matter that's pretty much what the case is you're saying yes your honor and judge johnson considered the totality of the circumstances she said so in her decision we're she analyzed the six factors of martin she did not check through each one talked about his admitting and you know that he rejected employees status and the structure which are not relevant considerations were with respect to his rejection of employment i didn't believe that relevant consideration because it goes to the economic reality he chose the funnel all the money through multiservice he made aggressive use of the the deductions of it was not one of the tests that's not in martin well when you look at the totality of the circumstances and the opportunity to make a profit or loss which is one of the the second factor under more certainly relevant but maybe it was outweighed by the others we she didn't do any and we know that shouldn't we have to send it back and say listen we've got these factors you said this we can't tell exactly how you how you arrived at your conclusion she cites to several admissions on the part of the ferry and the existence of military service the use of the taxes the use of helpers but see that's where that there's an economic realities those are individuals trying to put themselves into a certain  status for their own for their own benefit and he may have thought here that you know he's going to hurt himself tax wise if he did say oh yes you know i'm an employee but fairly or standard act hasn't has an independent test that has nothing to do with the admission of a person with the structure is not correct but well if i might throw this in under one of the elements that judge johnson said it's one of the things she here because when the things i wrestle with is when we pry the more factors replied by the district courts a review of typically there's no clear definition as to whether someone is an employee or an independent contractor it's  from the federal from the third circuit to two thousand and fourteen westlaw seven three eight four three two eight it was a case cited by the department of labor i believe that's a situation where the contractor set up a argued below i guess from giving as to the more than factors apply in a typical way in a case like this where there's a separate incorporation or is it does it not quite fit what's your view on that my view is that this case is not like the sleepy states for example which i realize as a new jersey wage and employment case i think what the statutes whether new jersey rage or labor f l s say we're going if there was a situation where you had a very large rancher employer was taking advantage of lower income employee yes forcing upon them an independent contractor agreement like they did sleep nice and then using that truck sure that label to categorize  morton should be applied however application of them in totality and viewing the from a qualitative basis leads to the conclusion that he was a contractor how is that right let's run through those how do you see that it comes out that way control ok he was working off site the entire time he didn't receive any written instructions like he told him where to go and what to do what he was doing they told him where to go but after that he had tremendous apply a fix that wasn't a standard story how his what he did different from people who were employees my recollection is the record shows that he was treated exactly the same as others who were clearly employees that correct or not well in certain respects in terms of the degree of control and know why he drove his own truck to the work sites for example the persons i don't believe any of the other employees were a direct match with what he was doing for work for most of the a d j the other morton factors opportunity for profit and loss as i said he he had the opportunity for profitable us that's why he was funneling everything through most of us there was that's why he was using helpers investment these were all his own tools his own equipment sure when he got on site he would be working on a t g equipment but it was all his own tools he did and he took tax deductions depreciation for those special skill the department of labor exam of his brief acknowledges a high other people another contractor was hired to fill his slot when he when he left so it wasn't exclusive to his his skill again with  tests and considerations that i think are crystal clear to the district who are already considered whether the worker accrues retirement benefits and whether the employer pays social security taxes the district   by the way in the record there's not a single specific incident where they and a date and where he says that overbilling on on x or y are nothing in writing  i think that the district court pretty much nailed it but all the factors go towards employment status with the exception of  focus on the four that i'm just so easy to set let's talk about what mr hucker said he said to the group control went the other way opportunity for profit loss went the other way invest in equipment went the other way special still went the other way how do you how what his business card was use a company phone he was told where to get his supplies from and it was paid for by the company ok profit and loss just a company profits by running itself more efficiently so that it can engage in efficiencies so that it can squeeze its costs and maximize its profits and his opportunity for people who have that he was went on his own not through multi service and how many other employees were eighty g i would be pleased today d g have at the times the ferry was working i believe was about twelve to fifteen ok and how many of those employees took a sabbatical that that's not in the record just how many of those employees hired a helper i don't know that any did it's not in the record either way so severely in his behavior was it lisa knows two respects remarkably free and different when the employees of the company would you concede that no charge he quit it left in work for two months he was called back any employee can quit and any employee can be called back and he didn't take multiservice and work for medical service thousand dollars from that work multiservice was paid multiservice was paid six thousand dollars over those three and a half years and one of that one of those jobs was mr safari and fixing putting in an air conditioning unit for his pastor the definition is suffer a permit to work judge if the court were to pull out an employer to say you be