SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5441-17T2

LAW OFFICE OF 

GERARD C. VINCE, 

LLC,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR,

and DARLA J. DIMATTEO,

Respondents.

____________________________

Argued May 21, 2019 – Decided September 3, 2019

Before Judges Suter and Geiger.

On appeal from the Board of Review, Department of 

Labor, Docket No. 145,463.

Gerard C. Vince, II argued the cause for pro se 

appellant.

Daniel Pierre, Deputy Attorney General, argued the 

cause for respondent Board of Review (Gurbir S. 

Grewal, Attorney General, attorney; Melissa Dutton 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Schaffer, Assistant Attorney General, of counsel; 

Daniel Pierre, on the brief).

Respondent Darla J. DiMatteo has not filed a brief.

PER CURIAM

The Law Office of Gerard C. Vince, LLC (law firm), appeals from a 

decision of the Department of Labor and Workforce Development's Board of 

Review (Board). The Board affirmed a finding that claimant Darla J. DiMatteo, 

a certified paralegal, was an employee—and not an independent contractor—of 

the law firm when her services were terminated. As an employee, she was 

entitled to unemployment compensation benefits. We reverse the Board's 

decision because there was substantial credible evidence that she was an 

independent contractor and not an employee of the law firm. 

DiMatteo filed a claim for unemployment benefits in November 2017 after 

the law firm terminated her services. She had been hired by the law firm to 

integrate its files into a web-based computer software system called "LEAP." 

The law firm was licensed to use the software system, which could be accessed 

through the web using any computer, not just those at the law firm. The law 

firm would identify the files to be integrated into LEAP, but did not instruct

DiMatteo on how to perform the actual integration of the files into the LEAP 

system.
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The law firm confirmed in its Consulting Paralegal Understanding (CPU)

with DiMatteo that she was "being contracted as a consulting paralegal." In the 

CPU, the law firm confirmed with her that this was a "temporary consultancy" 

for three to six months to be paid weekly at twenty dollars per hour based on 

invoices that DiMatteo would present to the law firm. It would not pay 

"telephone, computer expenses, insurance, travel, equipment leases unless 

otherwise agreed to in writing." DiMatteo was required to pay taxes at the end 

of the year including "any self-employment tax, workers' compensation or the 

like . . . ." The CPU stated, "you agree by acting as a consultant that you are an 

independent contractor and as such are not an employee and shall not enter into 

any contract or agreement on behalf of the company. You understand that you 

are not subject to receive unemployment or other employee related benefits." 

One week before her services were terminated, DiMatteo signed a "consultation 

confirmation" form where she acknowledged she would receive a 1099 tax form

from the law firm and then pay all taxes relative to her "consultancy."

DiMatteo integrated files into the LEAP system from May 9, 2017 to 

October 13, 2017, when her services were terminated. She filed for 

unemployment. In March 2018, the Department's Deputy found she was eligible 
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for benefits. The law firm appealed to the Appeal Tribunal. A hearing was 

conducted in April 2018 in which DiMatteo did not participate. 

The Appeal Tribunal held that DiMatteo was entitled to unemployment 

benefits under N.J.S.A. 43:21-19(i)(6), as an employee of the law firm. It found 

that the CPU was not determinative of whether the law firm was an employer 

under the unemployment law. Instead, the Appeal Tribunal considered 

DiMatteo's actual working relationship with the law firm. It found DiMatteo 

reported once or twice a week to the law firm to download files, the LEAP 

system was controlled by the law firm, and DiMatteo's job function was a 

"requisite part of the claimant's duties as a [c]onsulting [p]aralegal." It found 

the law firm "did not prevent [DiMatteo] from accepting work with other 

employers." She used her own vehicle for transportation and there was no dress 

code that she needed to follow. 

Although DiMatteo was "free to make her own hours and days," the 

Appeal Tribunal noted she was "required to report to her employer's work 

location on a somewhat regular basis in order to perform at least a mandatory 

portion of her job duties, specifically the downloading of business files into the 

employer's software litigation program." It found she would not have been able 

to do this "without access to the employer's software, which the employer 
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controlled." It found DiMatteo was not "fully free from control of her work 

service contract" because she was "required to drive to the employer's work 

location in order to complete these mandatory tasks." The Appeal Tribunal, 

concluded that the law firm did not prove DiMatteo was an independent 

contractor. 

The law firm appealed to the Board, which affirmed the Appeal Tribunal. 

The Board supplemented the Appeal Tribunal's decision to address two parts of 

the "ABC" test set forth in N.J.S.A. 43:21-19(i)(6). Under part "A", the Board 

found "[a]lthough the claimant had some flexibility as to when and where the 

work was performed, it was the employer who assigned specific tasks to the 

claimant." Under part "B", the Board found that DiMatteo "was performing 

paralegal work for a law firm," and she was an employee "as the work performed 

by the claimant was essential to the services provided by that type of business." 

Because the law firm did not satisfy either part A or B of the ABC test, the Board 

did not analyze part C. 

On appeal, the law firm argues that DiMatteo was an independent contract 

consultant and not an employee. It asserts the Appeal Tribunal and Board made

certain findings that are not accurate. For instance, the law firm did not own the 

LEAP software program; this was a web-based program the law firm could 
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access. Also, it was DiMatteo who set the rate of her pay, not the law firm, and 

she issued invoices to the law firm for payment. DiMatteo was not required to 

work at the office. She came in once or twice a week, but could work on the 

program remotely. She indicated to the law firm that she performed services for 

other entities during the time she worked there. DiMatteo advertised her 

services to the public. The law firm contends that because DiMatteo was a 

certified paralegal, it had to exercise some level of control as required by the 

Rules of Professional Conduct and by the Supreme Court in In re Opinion No. 

24, 128 N.J. 114 (1992). However, it did not determine the pathway for her to 

integrate the files into the LEAP system. The law firm argues the integration of 

these files into LEAP was not essential to the services that it performed as a law 

firm to its clients. 

Our review of an agency's decision is limited. Brady v. Bd. of Review, 

152 N.J. 197, 210 (1997) (citing Pub. Serv. Elec. v. N.J. Dep't of Envtl Prot., 

101 N.J. 95, 103 (1985)). "If the Board's factual findings are supported 'by 

sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting 

Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). We will not intervene unless 

the Board's decision is "arbitrary, capricious, or unreasonable." Ibid.
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The ABC test, referring to the three subparagraphs of N.J.S.A. 43:21-

19(i)(6), is used to determine if a person is an independent contractor for 

purposes of the Unemployment Compensation Law (UCL), N.J.S.A. 43:21-1 to 

-24.30. A person is presumed to be an employee unless the employer satisfies

each part of the ABC test. Hargrove v. Sleepy's, LLC, 220 N.J. 289, 305 (2015). 

The statute provides as follows:

Services performed by an individual for remuneration 

shall be deemed to be employment subject to this 

chapter ([N.J.S.A. 43:21-1 to -71]) unless and until it is 

shown to the satisfaction of the division that:

(A) Such individual has been and will 

continue to be free from control or 

direction over the performance of such 

service, both under his contract of service 

and in fact; and

(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

(C) Such individual is customarily engaged 

in an independently established trade, 

occupation, profession or business.

[N.J.S.A. 43:21-19(i)(6).]

In Hargrove, the Court explained the considerations under each part of the test.
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In order to satisfy part A of the "ABC" test, the 

employer must show that it neither exercised control 

over the worker, nor had the ability to exercise control 

in terms of the completion of the work. In establishing 

control for purposes of part A of the test, it is not 

necessary that the employer control every aspect of the 

worker's trade; rather, some level of control may be 

sufficient.

Part B of the statute requires the employer to 

show that the services provided were "either outside the 

usual course of the business . . . or that such service is 

performed outside of all the places of business of the 

enterprise." While the common law recognizes part B 

as a factor to consider, it is not outcome determinative 

within the confines of the "right to control" test.

Part C of the statute is also derived from the 

common law. This part of the test "calls for an 

enterprise that exists and can continue to exist 

independently of and apart from the particular service 

relationship. The enterprise must be one that is stable 

and lasting—one that will survive the termination of the 

relationship." Therefore, part C of the "ABC" test is 

satisfied when an individual has a profession that will 

plainly persist despite the termination of the challenged 

relationship. When the relationship ends and the 

individual joins "the ranks of the unemployed," this 

element of the test is not satisfied.

[Id. at 305-06 (citations omitted).]

The terms of the contract are not controlling on the issue of whether the 

person is an independent contractor. Phila. Newspapers Inc. v. Bd. of Review, 

397 N.J. Super. 309, 321-22 (App. Div. 2007). This is a "fact-sensitive" analysis 
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where the substance, not the form of the relationship, is reviewed. Carpet 

Remnant Warehouse, Inc. v. N.J. Dep't of Labor, 125 N.J. 567, 581-82 (1991).

We are constrained to reverse the Board's decision because there was 

substantial credible evidence that the law firm satisfied the ABC test. Under 

part A of the ABC test, there was no evidence the law firm exercised any more 

control over DiMatteo as a paralegal than required by the Rules of Professional 

Conduct. RPC 5.3. Other than selecting the files to be reviewed, there was no 

evidence the law firm controlled or directed how she was to perform the work. 

The Court's opinion in Opinion No. 24, 128 N.J. at 127-30, contemplated that a 

paralegal could be an employee or an independent contractor.

1 Under either 

scenario, attorneys who delegated legal tasks to paralegals had to "maintain 

direct relationships with their clients, supervise the paralegal's work and remain 

responsible for the work product." Id. at 127. Therefore, some direction and 

control was required by the Court for the paralegal to avoid allegations of 

unauthorized practice of law and for the attorney to satisfy the RPCs. Under the 

Board's analysis, a paralegal could never be an independent contractor because 

of the control that an attorney must have to avoid a finding of unethical conduct. 

 

1

 In Hawkins v. Harris, 141 N.J. 207, 221 (1995), the Court described Opinion 

No. 24 as "reminding attorneys of their responsibility to supervise paralegals, 

whether employees or independent contractors."
10 A-5441-17T2

The CPU contemplated there would be an independent contractor 

relationship. DiMatteo was to receive a 1099 and pay her own taxes. She did 

not receive any specific training from the law firm. She set the rate of her pay, 

advertised her services to the public and worked with other businesses while at 

the law firm. The law firm did not require her to follow a dress code or to report 

to the office for specific hours. It was not disputed that "she had no specific 

hours" or "times that she had to be made available, she came and went . . . as 

she pleased, and the hours all fluctuated." Therefore, the evidence showed that 

the law firm did not control or direct her performance or how she performed her 

work. 

Under part B, it was not disputed that the work could have been performed 

at any location. In fact, the record substantiates that some work was performed 

off-site. The invoices show she was paid between $500 and $700 per week. At 

twenty dollars per hour, her weekly hours significantly exceeded the one to two 

days per week that she was in the office. Moreover, the work did not involve 

specific clients or tasks typically performed by a paralegal, and could be 

considered outside the usual course of business for the law firm. 
11 A-5441-17T2

Part C was not analyzed by the Board, but there was evidence that 

DiMatteo was a certified paralegal who worked for other businesses, came and 

went as she pleased and advertised her services as a certified paralegal. 

The Board found the law office did not satisfy the ABC test but did so 

without full consideration of the undisputed evidence in the record. We are 

constrained to reverse the Board's decision that DiMatteo was an employee 

entitled to unemployment benefits having found unrebutted evidence that the 

law firm satisfied the ABC test set forth in N.J.S.A. 43:21-19(i)(6).

Reversed.