Husband or Employee?

The definition of employee for workers’ compensation purposes has always been fluid: the workers’ comp courts apply a different standard than does the IRS, for example. In New Jersey, the definition of ‘employee’ is “all natural persons . . who perform a service for an employer.” Therefore, a variety of working relationships have been held to be covered by the Act, including those not necessarily confined to traditional employment settings. The courts have frequently ‘revisited’ this definition of ‘employee’ because there are many cases where either the (alleged) employer or the (alleged) employee have sought to have the particular employment recognized – because employers may benefit (in certain cases) from an expanded definition of “employee,” where an ‘expanded’ or “liberally applied” definition of employment may prevent civil claims.
In the recently-decided Federal case, Kleschick v. Hope Depot, United States District Court 02-3120 (Decided October 9, 2009) , the issue was squarely put to the deciding Judge.
Kurt Kleshick, owns a company called ‘Hydrate Irrigation’ which installs irrigation systems. On May 16, 2000, his wife Marianne Kleshick was injured while using a tool (a grinder manufactured by ‘Makita’ and sold by Home Depot). Marianne Kleshick brought a suit against Home Depot and Makita for her injuries, which she alleges arise from the use of the allegedly defective tool.
The Home Depot/Makita implead Kurt Kleshick, owner of Hydrate Irrigation, as a co-defendant. basically, their counterclaim stated that if Marianne Kleshick was injured, it was at least partially the fault of Mr. Kleshick.
Mr. Kleshick challenged the impleader, stating that at the time of the accident, his wife was a ‘co-employee’ of Hydrate Irrigation, and that a claim against a co-worker was specifically barred by the New Jersey Workers’ Compensation Act.
Home Depot/Makita argued that Mr. Kleshick was not acting as a ‘co-employee’ at the time of the accident, but instead was merely a “husband helping his wife.” They based this argument on the fact the Mr. Kleshick waived payment for working with his wife on the date of loss. They also raised the possibility that Mr. Kleshick was a ‘causal employee’ – defined as “any job that is not “regular, recurring, or periodic” and in which the services rendered are by chance or by accident” – rather than a legit co-worker.
The Federal Judge ruled that the parties would have to produce proofs as to the exact roles the Kleshicks were performing – and that Mr. Kleshick was not automatically guaranteed the immunities offered a co-worker under the New Jersey Workers’ Compensation Act.

Greg Lois is the managing partner of LOIS LLC and dedicates his practice to defending employers and carriers in New York and New Jersey workers' compensation claims. Greg is the author of a popular series of "Handbooks" on workers' compensation, and is the co-author of the 2016 & 2017 Lexis-Nexis New Jersey Workers' Compensation Practice Guide. Greg can be reached at 201-880-7213 or glois@loisllc.com