SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0686-22
JONATHAN PENA RODRIGUEZ, Plaintiff-Respondent,

v. REYNALDO DE LA ROSA, Defendant-Appellant.

Submitted December 11, 2023

– Decided December 28, 2023 Before Judges Sabatino and Marczyk. On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC

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. The Law Firm of Hunt, Hamlin & Ridley, attorneys fo r appellant (Raymond L ouis Hamlin, on the brief). Respondent has not filed a brief.
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0686

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Defendant Reynaldo De La Rosa, a barber shop owner in Newark, appeals from a $15,000 judgment issued against him for over time pay owed to plaintiff Jonathan Pena Rodriguez, in violation of New Jersey 's Wage and Hour Law ("WHL"), N.J.S.A. 34:11-56a to -56a38. The judgmen t followed a four-day bench trial in the Special Civil Part, after which the trial judge concluded that plaintiff was defendant's employee, not an independ ent contractor exempt from the WHL's overtime regulations. The judge applied w hat is known as the "ABC test" of employment to the circumstances , N.J.S.A. 43:21-19(i)(6)(A)-(C). As determined by the trial judge, the testimony of plaintiff and his witness shows that defendant hired him and other immigrants from the Dominican Republic to work six days per week, as barbers at d efendant's barber shop, and to live in housing he owns. The judge found defend ant's countering testimony on many of the key facts incredible. Once liability was established, plaintiff was award ed $15,000 in unpaid wages, which was the jurisdictional maximum recover y in the Special Civil Part at the time of trial. The judge based the award on his calculation of an imputed hourly wage rate of $15.15, times 1.5 (pursuant to the overtime formula), times 52 weeks of overtime due for over a two-year period . That computed sum exceeded the $15,000 jurisdictional cap, even when the trial court lowered its3 A- 0686

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assumptions of hours worked and pay received. The judgmen t amount has been paid by defendant into the court and is being held in escrow pending this appeal. On appeal, defendant argues the trial court: (1) mi sclassified plaintiff as his employee under the "ABC" test, (2) incorrectly calculated the unpaid wages owed to plaintiff and erroneously shifted to defend ant the burden to prove the hours plaintiff worked, (3) improperly denied defen dant's motion for a directed verdict at the close of plaintiff's case, (4) erron eously denied defendant's counterclaim against plaintiff for allegedly pursui ng frivolous litigation, and (5) was biased against defendant and his trial attorney and was partial to plaintiff, who was self-represented at trial. 1 Having considered these contentions of error in lig ht of the record, our scope of appellate review, and applicable legal pri nciples, we affirm. The scope of our review of the trial court's findin gs in this non-jury case is limited. We review the record to determine whet her the facts as found by the trial judge are supported by substantial credible e vidence in the record. Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J . 474, 484 (1974). If we find that is so , we proceed to determine whether the judge properl y applied the law to the facts as found. Ibid. We review de n ovo the trial judge's interpretation

1 Plaintiff has not filed a responding brief on app eal.4 A- 0686

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of the law and the judge's application of the law t o the facts. Manalapan Realty, LP v. Twp. Comm. of Manalapan , 140 N.J. 366, 378 (1995) ; Yellen v. Kassin , 416 N.J. Super. 113, 119 (App. Div. 2010). The heart of this case concerns an application of t he WHL. The statute is "designed to 'protect employees from unfair wages a nd excessive hours.'" Hargrove v. Sleepy's, LLC, 220 N.J. 289, 304 (2015) (citation omitted). "The WHL establishes not only a minimum wage but also an overtime rate for each hour of work in excess of forty hours in any week .

. . ." Ibid. (citing N.J.S.A.
34:11 -56a4) (emphasis added). Employees are presumptively covered by the minimum wage and overtime regulations enacted under the WHL unless t hey meet the following criteria of an independent contractor, known as the "ABC" test:

(A) Such individual has been and will continue to b e free from control or direction over the performance of such service, both under his contract of service an d in fact; (B) Such service is either outside the usual course of the business for which such service is performed, o r that such service is performed outside of all the p laces of business of the enterprise for which such servic e is performed; and (C) Such individual is customarily engaged in an independently established trade, occupation, profes sion or business.5 A- 0686

- 22 [N.J.S.A. 43:21-19(i)(6)(A)-(C) (emphasis added).] "The ABC test is conjunctive; thus, all three prong s must be satisfied for a worker to be considered an independent contractor ." East Bay Drywall, LLC v. Dep't of Labor and Workforce Dev., 251 N.J. 477, 495 (2022) (emphasis added). The test "becomes applicable only after a determination that the service provided constitutes 'employment,' which is defined as 'service performed for remuneration under any contract of hire, written or oral, express or implied. '" Carpet Remnant Warehouse, Inc. v. N.J. Dep't of Lab or, 125 N.J. 567, 581 (1991) (quoting N.J.S.A. 43:21-19(i)(1)(A)). Prong A, known as the "control test," requires pro of "that the provider of services 'has been and will continue to be free from control or direction over the performance of such services.'" Id. at 582 (quotin g N.J.S.A. 43:21-19(i)(6)(A)). "The person must establish not only that the employ er has not exercised control in fact, but also that the employer has not reserve d the right to control the individual's performance." Ibid. "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 b e sufficient." Hargrove, 220 N.J. at 305.6 A- 0686

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Prong B "is satisfied by a showing either that the services performed are outside the employer's usual course of business or that the service is performed outside of all of the employer's place of business." Carpe t Remnant, 125 N.J. at 584 (citing N.J.S.A. 43:21-19(i)(6)(B)). Lastly, Prong C requires "a person be customarily engaged in an independently-established trade, occupation, profes sion, or business . .

. ." Id. at 585. "[I]f the person providing services is dep endent on the employer, and on termination of that relationship would join the ranks of the unemployed, the C standard is not satisfied." Id. at 585-86. The trial court reasonably classified plaintiff as an employee of defendant , rather than an independent contractor, under the AB C test. The court only reached prong A of the test because, as the court f ound, defendant "clearly" exerted economic control over plaintiff and thus em ployed him. The record substantiates that plaintiff and the oth er barbers were dependent on defendant, who hired apparently undocu mented individuals 2 from the Dominican Republic who lacked cosmetology licen ses, brought them to the

2 We do not pass upon the legality of the employmen t under immigration laws , as that is beyond the scope of this litigation. Serrano v. Underground Utils. Corp. , 407 N.J. Super. 253, 269-72 (App. Div. 2009); see also Crespo v. Evergo Corp., 366 N.J. Super. 391, 399 (App. Div. 2004).7 A- 0686

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United States, and rented them housing. As the tri al court found, that business model rendered the barbers dependent on De La Rosa for both income and housing and limited their ability to transfer to other employers. Additional substantial credible evidence supports the trial c ourt's decision. For instance, although defendant asserte d at trial that his barbers set their own hours, 3 plaintiff testified to the contrary. Plaintiff pr esented corroborating testimony from another barber from th e shop, who testified that he worked for defendant until he was terminated for requesting to work six days per week instead of seven. Two other barbers testified for defendant that they set their own hours, but the trial court discredite d the testimony of one of them because he and defendant were childhood friends and have an ongoing employment relationship. Defendant alleged the barbers had freedom to schedu le their own clients and supply their own materials, but the trial court found he nevertheless controlled his barbers by intentionally recruiting them in a manner that would

3 The trial court found defendant incredible based on what the court described as his "evasive" testimony about such topics as the ownership of his LLC and the shop's compliance with applicable tax, licensin g, and other state and federal regulations. The court made no explicit findings a bout the credibility of plaintiff's testimony, but implicitly credited aspe cts of it in its factual findings largely adopting plaintiff's narrative.8 A- 0686

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reduce their likelihood of leaving the shop if they ever objected to working conditions. The fact that plaintiff, as he admitted, occasional ly worked for another barber shop to cover shifts for a friend does not n egate the court's finding of defendant's control. Control under prong A of the ABC test does not require "control [of] every facet of a person's responsibil ities," incomplete control or a "reserv[ation of] the right to control the individu al's performance" can be sufficient. Carpet Remnant, 125 N.J. at 582- 83. Apart from this main substantive point, none of de fendant's other arguments on appeal compel reversal. We offer the following brief comments. The trial court did not improperly shift the burden of proof under the ABC test or the computation of wages to the employer. We note in this regard that a provision within the WHL, N.J.S.A. 34:11 -4.3, imposes an obligation on the employer to estimate and pay the owed wages at the time of an employee's termination. In any event, the record contains suf ficient grounds for the court to have ruled in plaintiff's favor, regardless of w hich side bore the evidentiary burden. We are satisfied the trial court's method of calcul ating the unpaid wages was reasonable. When, as here, precise records of unpaid wages are not9 A- 0686

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available, "'a reasonable approximation of all wage s due' shall be paid until the exact amounts due can be computed." Mulford v. Com puter Leasing, Inc., 334 N.J. Super. 385, 395-96 (App. Div. 1999) (citing th e WHL formula for payments due to employees on termination of employment, spec ified at N.J.S.A. 34:11- 4.3). The trial court rationally extrapolated from what it deemed to be credible testimony to estimate the hours worked, the imputed hourly rate, the duration of the employment, and so on. As it turned out, the c omputation of total wages due exceeded the $15,000 jurisdictional limit, so defen dant received the monetary benefit of that limitation. The denial of a directed verdict after the completion of plaintiff's case- in

chief comported with Rule 4:37 -2(b). Such a motion should be granted only if "upon the facts and upon the law the plaintiff has shown no right to relief." Conversely, "such [a] motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a ju dgment in plaintiff's favor." Ibid. ; see also Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)

. Here, the testimony presented by plaintiff, viewed as it must be in the light most favorable to his side , was sufficient to justify the midtrial motion's d enial. Defendant's argument that the court should have san ctioned plaintiff for bringing an allegedly frivolous lawsuit is unavaili ng for both procedural and10 A- 0686

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substantive reasons. Procedurally, defendant's san ctions demand fails because there is no proof in the record of a "safe harbor" letter served before trial in compliance with Rule 1:4 -8(b)(1). Second, defendant is not the prevailing party. Lastly, we discern no reason to overturn the judgme nt based on defendant's claims of bias. Although the trial cou rt was stern at times

— in a manifest effort to move this four-day bench trial a long efficiently

— the record shows that the court several times was also stern w ith plaintiff. In particular, the court excluded several items of evidence proffe red by plaintiff and also curtailed his cross-examination of defendant on certain s ubjects. The court was coping with the challenges of an interpreter and a pro se plaintiff, at times proceeding in a remote format. The court was further att empting to develop the facts in an orderly manner through its own questions at times , as is its prerogative under N.J.R.E. 614(b). To the extent we have not otherwise addressed them , all other arguments raised by defendant on appeal lack sufficient merit to warrant discussion. R

. 2:11 -3(e)(1)(E). Affirmed.