AP PEERP OF KOUN IS I WILL. RAVI SATTIRAJU: RAVI SATTIRAJU FOR THE KENNEDY
(APPEARANCES GIVEN). BARRY S. GOODMAN: GROEN BARRY GOODMAN.
CHIEF JUSTICE RABNER: I PREESHLT I TRYING TO CONFUSE ME. MAYUR SAXENA:
ATTORNEY GENERAL MOI SAXAYNA. CHIEF JUSTICE RABNER: MR. SATTIRAJU, PLEASE.
RAVI SATTIRAJU: SURGEON RIDE LIKE TO RESERVE FIVE MINUTES FOR REBUTTAL.
CHIEF JUSTICE RABNER: WE'LL HAVE YOU BACK, PERHAPS A LITTLE LESS BUT WREEL
HAVE YOU BACK. RAVI SATTIRAJU: I WANT TO THANK YOU FOR THE OPPORTUNITY
TO PRESENT ORAL ARGUMENT, AS IEFSH PRY PAIRING FOR THIS CASE AND RG CANNING THIS ORAL
ARGUMENT 1 THING THAT JUMPED OUT ABOUT WHAT MADE THIS CASE SO UNIQUE. GENERALLY COURTS
DO NOT HAVE DIRECT INSIGHT INTO HOW A LEGISLATURE AND A GOVERNOR WOULD HAVE ADDRESSED
A SPECIFIC ISSUE UNDER A STATUTORY SCHEME, OFTEN TYPE THAT CAN PRESENT CHALLENGES AND
THERE'S A LOT OF, YOU KNOW, CONJECTURE FRANKLY THAT GOES INTO WHAT THE LEGISLATURE INTENDED.
THAT'S KNOT THE CASE HERE. SINCE THIS COMPLAINT WAS FILED IN MARCH OF
2019, THERE HAVE BEEN MULTIPLE EFFORTS TO HAVE THE LEGISLATURE EITHER AND VALIDATE PLAINTIFF
PS CLAIMS NNL CASE THROUGH BILLS THAT WOULD RENDER REAL STATE ACHLTS A EBBS STEFRPT UNDER
THE WAGE PAYMENT LAW OR TO HAVE R RAB IS A OR THE PARTIES' CONTRACT SOMEHOW SUPERSEDE
PLAINTIFF'S STAPT TOWER RIGHTS UNDER THES WPL. SO NOW LEFT DEFENDANT IS LEFT TO HAVING
0 APPELLATE COURT LEGISLATE FROM THE BENCH AND ACCOMMODATE WHAT COULD NOT BE DONE THROUGH
THE LEGISLATIVE PROCESS, THIS CASE WAS PENDING B THIS COURT WHEN YOU REMANDED TO THE APPELLATE
DIVISION TO CONSIDER THE IMPACT OF BILL A-6206. AT THAT POINT, OF THE APPELLATE DIVISION
MADE SOME VERY SERIOUS MISTAKES THAT LED TO OUR APPEAL. OF FIRST AND FOR
MOST WHAT I WOULD LOIK TO STRESS CASE FUND MEMORIAL RIGHTS UNDER THE WAGE PAYMENT LAW
FOR THOUSANDS OF WORKERS IN THE STATE OF NEW JERSEY. WORKING IN THE REAL ESTATE INDUSTRY.
AND THE APPELLATE DECISION AS IT STANDS COULD CAUSE A IRREPARABLE TO THE STATUTORY RIGHTS.
THE MOST FUND MEP MISS TAKS THAT WAS MADE BELOW WAS THE MISINTERPRETATION OF THIS COURT'S
RULING IN THE HARGROVE CASE. THE HISTORY OF HARGROVE CHEERILY SHOWS IT WAS MEANT TO APPLY
TO ALL WORKERS UNDER THE DUFRD UPT THE WPL MUCH THE QUESTION CERTIFIED BY THE 3RD CIRCUIT
TO THIS KWORT WAS WHICH WAS SHOULD APPLY TO THE DETERMINE EMPLOYEE STATUS. IN 2015, ATS
YEARS AGO THIS COURT UNEQUIVOCALLY ANSWER THE THAT QUESTION AND SAID EMPLOYMENT STATUS
ISSUES RAISE THE UNARE THE W P ELEMENT ORT WHL I.E. WHETHER A PERSON RETAINED A PROVIDE
THE SIR VSS TO AN EMPLOYER IS AN EMPLOYER OR INDEPENDENT CONTRACT OR GOFRED BY THE ACHT
B C TEST. THAT WAS EIGHT YEARS AGO AND ISSUING THAT CASE, THAT CASE VOFLT
TRUCK DRIVERS THE. NOTHING IN THE COURTS DECISION LIMITED MRIK OF THE ABC TEST TO THAT
CATEGORY OF WORKERS. THE COURT METHODICALLY WENT THROUGH WHY THE ABC TEST WAS PREFERABLE
TO THE OTHER CASE, TO THE ON THE TESTS THAT WERE PROPER TO THE COURT. SINCE THE ISSUE
OF THE SEMINAL CASE THE LEGISLATURE HAS NAD NO EFFORT TO A TACK HARGROVE OR DO A WAY WERE
THE ABC. TEST THE DECHT OF LABOR AND OUR COURTS HAVE BEEN APPLYING THE ABC TESTS TO ALL
DIFFERENT KINDS OF WORKERS, FOR EXAMPLE I ARGUED A AMICUS IN THE AEFT BAY DRYWALL CASE
BEFORE THIS COURT AS MEEK CAN YOU SAY IN AN ABC CASE THAT DID NOT INVOLVE DRIVERS. THE
YET THE APPELLATE DIVISION SAID THAT THE ABC TEST IS NOT APPLY THE RULING DOES NOT CONTRADICT
HARGROVE BECAUSE THOSE WERE DELIVERY DRIVERS, THIS CONTRADICTS THE R HOLDING IN THIS CASE
FROM TWOJ WHUN WHEN THEY SAID "ALTHOUGH HAR GLOEF INVOLVED A R TRUCK DRAFR WPL #125I789
THE COURT BROAD STACHLT WAS UNKWL FIED AND THEY ALSO HELD SNMENT AES WE THE NO, SIR THAT THE
OUTSET THE SUPREME SKORT DRAUDLY DECLARE THAT THE ABC TEST DETERMINES FOR PERSON IS AN
EMPLOYEE OR INDEPENDENTS CONTACT UNDER THE WPL. SIMPLY PUT THE APPELLATE
DIVISION WAS KRIKT IN 2021 AND SIGNIFICANTLIES INCORRECT IN 2023 R WAIT A MINUTE HAD A
MAIN STAKE K ANALYSIS TO DETERMINE THE ABC TEST WAS THE PREFERABLE METHOD. NO BASE NOR
THE APPELLATE DIVISION TO LIMIT WRIT IN THIS MANNER. THE WORKERS WHO ARE AT ISSUE IN THIS
CASE ARE PROTECTED BY THE WAGE PAYMENT LAW. AND THE TEST TO DETERMINE WHETHER THEY'RE
EMPLOYEES OR NOT IS THE ABC TEST. THE APPELLATE DIVISION STRIPPING AWAY
THE A B R TEST VOI LATES HARGROVE MUCH ARE THE ACHT B C WAS ADOPTED BECAUSE THEY WOULD
HAVE A BROAD COVERAGE AND THEY WOULD PROVIDE PREDICT ABLTH IN DETERMINING WHO AN EMPLOYEE
IS OR NOT. AND THE WHAT WAS MAKES ADDITIONALLY DIFFICULT IS THE APPELLATE DIVISION DID
NOT IMPLEMENT ANOTHER TEST WHICH MAKES IF IT GETS REMAVENED WITHOUT A FEST, THIS MAKE
IT ALMOST IP POSSIBLE TO LIT DPAT THIS CASE BECAUSE NIGHT OR NOR MY COLLEAGUE ARE GO TO
KNOW WHAT'S APPLICABLE TAN DARD IS FOR US TO TICK DISCOVERY OR TAKE DEPOSITIONS OR ASK
FOR DOCUMENT WHICH IS WOULD MAKE THIS CASE AND THIS CASE UNFEASIBLE. BUT THEIRS NO NEED
FOR THIS, STL A TEST UP THE WAGE PAYMENT LAUSH IT'S THE A P C TEST. AND IF THE LEGISLATURE
WANTS THE A DIFFERENT TEST FOR REAL ESTATE AGENTS THEY WOULD HAVE A DODGED ONE. IF THEY
WAFRNED REVEREND IS A, THE REPUBLIC IS A DEP SIS NAG THAT THE PARTIES AGREED TO, TO PRUFRP
THE WPL, THE GOVERN MURPHY WOULDN'T HAVE VETOED THAT LANGUAGE AND IT WOULD HAVE BEEN A
DO THATTED. BUT THAT'S NOT WHAT HAPPENED HERE. THIS REALITY IMPACTS THE
THE APPELLATE DIVISION'S MISINTERPRETATION UPT SSHG 3.2. THE PLAIN LANGUAGE AVENUE SEK
3.2 DOES NOT FORECLOSE MRIK OF THE ABC TEST TO WPL CLAIMS BROUGHT BY REAL STATE PERSONS.
THE COURT HELD THIS COURT HAS HELD IN DIPROSPERO THAT STATUTORY LANGUAGE NEEDS TO BE READ
IN COULDN'T YUNGS? WITH THE BROADER BILL IN ORDER NO MAKE SENSE FRP THE PLAIN LANGUAGE
OF THIS BILL ONLY DEALS WITH AGREEMENTS UPTSD REPUBLIC IS A. R E P S A. 3.2 DOES NOT
STAY ANYTHING ABOUT FORECLOSING MRIK. ABC TEST TO WPL CLAIMS BROUGHT BY REAL SFAET
SALESPEOPLE, BUT THE APPELLATE DIVISION TRIED TO READ THAT LANGUAGE BACK INTO THE STATUTE,
IT WOULD RENDER THE DELETE THE LANGUAGE INEFFECTIVE AND IT SHOT BE PERMITTED TO TO
SO. APPELLATE DIVISION LEGISLATURE KNOWS WHAT IT'S DOING WHICH IT DRAFT AS STACH THE THE
LANGUAGE THAT WAS INITIALLY PROPOSED IN 2206 THAT GOVERNOR MURPHY VETOED UNDER THE WAGE
PAYMENT LAW THE DESIGNATION IN THE CONTRACT WOULD GOVERN REGARDLESS OF ANY AND THAT THAT
WHOA NOT R TO MEET ANY OTHER TEST UNDER THESE STATUTES. THEY SPICHG THE LISTED THE WAGE
PAYMENT LAW, THAT LANG WCH WAS STRUCK, GOVERNOR R MURPHY VETO STATEMENT WAS VERY CLEAR
ABOUT WHY IT WAS DONE, HE DIDN'T WANT WESHG WOULD WORKERS FOB STRIPPED OF THEIR RIGHT,
HE WANTED PREDICT ACT AND HE DIDN'T WANTS PRIVATE CONTRACTS TO SUPERSEDE STATUTORY RIGHTS.
THE A WELL ESTABLISHED THAT COURTS MUST PRESUME THAT EVERY WORD IN THE STACH
HAS MEANING, IF THE GOVERN MURPHY, IF THE LANGUAGE, R INITIALLY PASSED BY THE
LEGISLATURE HAD A CERTAIN IMPACT, ONCE THAT LANGUAGE IS STRUCK THE IMPACT OF THAT WHAT
LANGUAGE IS TRYING TO ACCOMPLISH LIKEWISE IS NOT EFFECTED. WHAT DEFTD IS PROPOSING HERE
AND WHAT THE APPELLATE DIVISION A P DOED WAS AN ATTEMPT TO RENDER THAT LANGUAGE THAT WAS
VETOED TO BE EFFECTIVE. CHIEF JUSTICE RABNER: THE LANGUAGE THAT THE
GOVERNOR USED EXPLAINS WHY HE TOOK THE STEPS THAT HE DID. THIS WAS ALL ABOUT ATTEMPTING
TO AVOID MISS CLARIFYING WORKERS IN OTHER AREAS. SO HOW DOES THAT HELP YOU? RAVI
SATTIRAJU: ACTUALLY AND I HAVE THE VETO STATEMENT RIGHT HERE, WHAT HE SD WAS THE ACTUAL
RELATIONSHIP AND CIRCUMSTANCES SURROUNDING AN INDIVIDUAL'S EMPLOYMENT SHOULD GOVERN.
NOT THE EXISTENCE UNDER AN EXEMPTION CONTAIN IN THE LAUCHT THE BILL AND HE SAID IN ORDER
THAT THIS BILL DOES NOT INED AVER TANTLY UNDER MRIEN WELL ESTABLISHED LEGAL STANDARDS
THAT CLEARLY DIFFERENTIATE BETWEEN EMPLOYEE AND INDEPENDENT CONTRACTOR, I'M REPUBLICING
CHANGES TO THE LEGISLATURE THAT WILL MORE DIRECTLY SATISFY ITS INTENT. SO
THAT LANGUAGE WHICH IS P, THE A THE LAST PARAGRAPH, THAT MAKES VERY CLEAR THAT THE
WELL ESTABLISHED LEGAL STANDARD HE WAS REFERRING TO ARE THE SPECIFIC REFERENCES TO THE
WAGE PAYMENT LAW, INCLUDE THE SPECIFIC REFERENCE TO THE WAGE PAYMENT LAW IN THE DELETED
SEK. GOVERN NR MURPHY DID NOT WANT LEGAL STANDARDS THAT DIFFERENTIATED BETWEEN AN
EMPLOYEE AND INDEPENDENT CONTRACTOR TO BE LOST IN THIS LANGUAGE. PT. JUSTICE
PIERRE-LOUIS: THE VETO STATEMENT MAKING CLEAR THE GOVERNOR'S EARN CAN WAS EVEN THOUGH
THE BILL IN SCOPE WAS LIMITED TO BROKER SALESPERSONS, THE LEGAL THEORIES COULD BE
USED BY OTHER EMPLOYERS ACROSS THE STATE TO MS. CLASSIFY THEIR EMPLOYEES INDEPENDENT
CONTRACTORS BASED ON A UCL EXEMPTION. SO IT DOESN'T SEEM AS THOUGH THE CONCERNS AND THE
VEE TOTE RELATE TO THE ISSUE THAT WE'RE GRAPPLING WITH TODAY. RAVI SATTIRAJU:
I THINK THE STATEMENT ACTUALLY GOVERNS BOJ. THE LANGUAGE WERE IT SAYS ABOUT OTHER STANDARD
THAT THE REFERRING TO THE UCL EXEMPTION LANGUAGE. BELOW HE DOESN'T QUALIFY THE STATEMENT
WHEN HE TALKS ABOUT IN ORDER SHTHS ABOUT NOT INADVERTENTLY WEAKENING WELL ESTABLISHED
LEGAL STANDARDS, HE DOESN'T LIMIT IT, HE DOESN'T SAY IT'S GOING TO BE OTHER EMPLOYEES
AND NOT FOR REAL ESTATE PERSONS. IF YOU LOOK AT THE LANGUAGE THAT WAS DELETED, THERE WAS
A SPECIFIC REFERENCE TO THE WAGE PAYMENT LAW AND SAYING THAT THE EMPLOYEE, THAT THE WORKERS
WOULD NOT BE, WOULD NOT BE REQUIRED TO MEET ANY OTHER TEST IN ORDER TO BE CONSIDERED AN
INDEPENDENT CONTRACTOR, TO BE CONSIDERED AN EMPLOYEE UNDER THE STATUTE. SO
THAT LANGUAGE WAS STRUCK AND WHEN YOU LOONG AT WHAT WAS STRUCK WITH THIS LANGUAGE, THE
SENTENCE BEING IN ORDER, THAT IS WHAT HE'S REFERRING TOCHLT SO WASN'T AS THOUGH WHAT HE
WAS I TRY TO DO IS JUST PROTECT OTHER WORKER, THIS LANGUAGE PLUS WHAT HE TLEETED I CAN
MAKES CLEAR THE WORKERS WERE GOING TO HAVE THEIR RIGHT UNDER THE AGE PAYMENT LAW.
CHIEF JUSTICE RABNER: I'M NOT SO SURE HOW CLEAR IT IS BECAUSE THERE'S LANGUAGE EARLIER
IN THE STATEMENT WHERE GOVERNOR EXPRESSED CONCERNS THAT SEVERAL THE BILLS PROVISIONS AS
DRAFTED COULD BE USED AS A BASIS FOR OTHER EMPLOYERS IN THE STATE TO MISS CLASSIFY
WORKERS. ISN'T THAT, AND THAT IS REPEATED TWICE MORE IN THE CONDITIONAL ZEET
TOE. WHAT ARE WE TO MAKE OF THAT? RAVI SATTIRAJU: I THINK THE CONCERN
ABOUT WHAT THE EARLIER LANGUAGE ADDRESSES IS THIS ARGUMENT THAT WAS MADE ABOUT THE UNEMPLOYMENT
COMPENSATION EXEMPTIONS WAS A VERY DANGEROUS ARGUMENT BECAUSE THERE ARE A LOT OF DIFFERENT
RGS THERE ARE I THINK 25 DIFFERENT EXEMPTIONS UNDER UNEMPLOYMENT LAUSH IT'S AN TIRELY
DIFFERENT STATUTORY SCHEME AND WHAT WAS BEING SUGGESTED WAS THAT ALL OF THOSE EXEMPTION,
WHICH ALL THE PEOPLE WHO WERE CAPTURED BY THOSE EXEMPTIONS WOULD HAVE THEIR RIGHTS STRIPPED
AWAY UNDER THE AGE PAYMENT LAW, THAT'S A VERY LAIFRJ DAFRMG RUSS POE EN SHUL, I THINK
THAT'S WHAT THE GOVERNOR, PART OF WHAT HE WAS ADDRESSING. BUT IF YOU LOOK
AT THE PARAGRAPH I QUOTED WHERE IT SAYS IN ORDER TO ENSURE THE BILL DOES NOT, HE RECOMMENDED
CHAFRMS. AND THAT, IF YOU LOOK AT THAT LANGUAGE, HE DOESN'T LIMITED TO OTHER PROFESSIONS.
IF I WANTED, BECAUSE ESSENTIALLY WHAT, I THINK WHAT YOUR HONOR IS GETTING AT DID HE VETO
THE LANGUAGE AND HE WAVENED TO PROTECT OTHER WORKERS FROM LOSING THEIR RIGHTS BUT HE SAID
IT WAS OKAY, DID HE SAY IT WAS OKAY FOR THESE REAL ESTATE WORKERS TO LOSE THEIR RIGHTS
UNT THE WPL, I DON'T THINK YOU CAN SAY THAT IN IN LIGHT OF THE LANG WFR I CITED, THE IN ORDER
LANGUAGE BUS WHEN YOU LOOK AT WHAT ACTUALLY IN CONJUNCTION WITH THAT LANGUAGE WHAT WAS
ACTUALLY STRUCK WAS VERY SPECIFIC REFERENCE TO, I'LL PULL THE LANGUAGE SHTHS QUOTE THE
DIRECTLY, WHAT WAS STRUCK WAS THE BROER KER SALESPERSON SHALL NOT BE REQUIRED TO SATISFY
ANY OTHER TEST FOR ANY OTHER LAW, RULE OR REGULATION INCLUDING BUT NOT LIMITED TO THE
TEST SET FORTH AT THIS LAW IS INCLUDING THE WAGE PAYMENT LAW, FOB DEEMED AN EN PENT CONTRACTOR
AS PROVIDED IN THIS SECTION FOR PURPOSES OF ANY OTHER LAW, RULE OR REGULATION.
JUSTICE WAINER APTER: YOUR ADVERSARY ARGUES THAT WAS UNNECESSARY AND REDUNDANT AS LONG AS
THE LANGUAGE REMAINED, THAT IT WAS THE INTENT OF THE LEGISLATURE FOR CONTRACTS TO BE ENFORCE
THE AS WRITTEN. AND BECAUSE AS LONG AS THE CONTRACT THEN IS SPECIFYING THAT THE PERSON
IS AN EN PENT CONTRACTOR, THEN YOU WOULDN'T R TRO SAY AUM THE REST OF THIS RGS IF YOUR
SAYING RETROACTIVELY CONTRACTS HAVE TO BE EN FORTSD ATS WRITTEN, IN THE GOVERNOR STATEMENT
IN HIS CONDITIONAL VOE TOE STATEMENT RGS DIDN'T HE QUOTE ROW AFFIRM THE IN10 OF THE LOICH
CRIMINAL HISTORY AS STATED IN THE PROCEDURE KERS ACT REGARDING THE EMPLOYMENT RELATIONSHIP
OR INDEPENDENT CONTRACTOR RELATIONSHIP OF REAL ESTATE BROKERS AND TO RET FRO AK TIFRL
ENFORCE PAST WRITTEN AGREEMENT REGARDING SLAM? SAM SAM THE SECTION ADD DRETSZ CONTRACTS
UNDER R E P S A AND THE SPECIFIC LANG WERE -- JUSTICE WAINER APTER: I SAW
THAT POICHT M YOUR BRIEFING, OH THEY'RE INDEPENDENT CONTRACTORS FOR PURPOSES OF
BROKERS ACT BUT THEY'RE NOT INDEPENDENT KRKT TOURS FOR IF YOUR HONOR PLEASE OF THE WPL
P THE LEGISLATURE DID NOT MOAN FOR THEM TO BE RIN PENT CONTRACTOR FOR PURPOSES OF THE
WPL OPEN RL FOR THE BROKERS AK WHY DOES THE THE MATTER FOR THE BROER KS AT WHETHER THEY'RE
AN INDEPENDENT CONTRACT DOOR OR NOT. RAVI SATTIRAJU: THE, BECAUSE THERE ARE
POTENTIAL CLAIMS UNDER, BECAUSE IF YOU TLOOK AT THE LANGUAGE WOULD WHAT IT TACKS ABOUT
IS IT REFERS TO THE BUSINESS AFFILIATION ORT BUSINESS RELATIONSHIP. SO IF THERE'S A
BREACH OF CONTRACT CLAIM A DEBT MEMORY LINES CLAIM RNGS IF THERE'S ANY SERIES OF CLAIMS THAT
COULD COME UP THAT INVOLVED BUSINESS RELATIONSHIP BETWEEN THE PAESHTS THAT ARE NOT STAFRPT
TORELY BASED, THEN WHAT THE LAW SAYS IS YOU HAVE TO HAVE A WRITTEN DOWN INCLUDING HOW
YOU'RE PLANNING TO DESIGNATE THE RELATIONSHIP. SO FOR PURPOSES OF WHAT'S
BEING DONE HERE, IF YOU LOCK AT WHAT GOVERN NR MURPHY SAID ABOUT WELL ESTABLISHED DIFFER
REN RAGSS BETWEEN AN EMPLOYER AND A CONTRACTOR AND HE'S DELETING THE SPECIFIC REFERENCE
TO THE WAGE PAYMENT LAW, SAYING PEOPLE DON'T HAVE TO MEET THAT TEST IN ORDER TO BE AN
INDEPENDENT CONTRACTOR, I DON'T THINK HE HAD, I DON'T THINK HE DELETED LANGUAGE THAT
SPECIFICALLY ACCOMPLISHES WHAT DEFENDANT IS PROFFERING ONLY TO HAVE US REALLY READ INTO
IT THROUGH ANOTHER SECTION. IF HE WANTED TO THE PEOPLE TO BE, THE LEGISLATURE KNIVES,
KNEW HOW AND THE GOVERNOR'S OFFICE NOW HOW TO STRIP REAL TAET WORKERS OF THEIR RIGHTS
UP THE WPL. R LOIP CHER, THERE WAS A BILL PENDING UNDER THE WPL TO EXEMPT THEM.
JUSTICE WAINER APTER: I THINK THE LODGE CHER DID NOT EN TEND TO STRIP RIGHTS UP
THE WPL BUT INTENDER EACH BROKER OR REAL ESTATE PERSON COULD GROW WHETHER THE PERP WOULD BE
AN EMPLOYEE AND INPEPT CONTRACTOR AND IT WOULD BE DETERMINED BY CONTRACT. RAVI
SATTIRAJU: NO, BROW THE, THAT WOULD TURN EMPLOYMENT LAW IN NEW JERSEY ON ITS HEAD FOR
THE LAST 40 YEARS. THERE'S SPECIFIC PROVISION IN THE WPL THAT STATES THAT CONTRACTS THAT
VIOLATE -- THAT VI LAT PEOPLE'S RIGHTS UP THE LAW ARE PER SE VOID. SO AS
A PRACTICAL MATTER YOU CAN'T HAVE -- JUSTICE WAINER APTER: THE LEGISLATURE
DID CHOS IN 2018 YOU AGREE TO AND THE BRO CONSIDERS ACT SO ET NOT WRI STAND ANY PRO
RIGS OF THE BROKERS ACT OR ANY OTHER LAW, RULE OR REGULATION TO THE CONTRARY, A BUSINESS
AFFILIATION BETWEEN A BRO CONCERN A BROKER SALESPERSON OR SALESPERSON MAY BE OF THAT AN
EMPLOYMENT RELATIONSHIP OR THE PROVISION OF SIR VESS BY AN INDEPENDENT CONTRACTOR, THE
NATURE OF THE BUSINESS AFFILIATION SHALL BE DEFINED IN THE WRITTEN GREEN PURCHASE SUVENT
TO SEK A, CORRECT? RAVI SATTIRAJU: IENT KEY TERM IS BUSINESS AFFILIATION,
THERE'S NO REFERENCE TO STATUTORY RIGHTS AND IN THE STATE OF NEW JERSEY, IT'S VERY WELL
ESTABLISHED AND THIS THE MALG AMACDOUGALL CASE SAID YOU CAN UNDER SOME LAWS AND BE AN
MROET EMPLOYEE FOR PURPOSES OF OTHER LAWS. JUSTICE PIERRE-LOUIS: IT SEEPS
IN THE STATUTE THE LEGISLATURE MADE A POL SO DECISION THAT SPECIFICALLY FOR THE REAL
ESTATE INDUSTRY, THE DECISION AS TO WHETHER THE WORKING RELATIONSHIP WOULD BE OF THAT
EMPLOYER, EMPLOYEE OR INDEPENDENT CONTRACTOR IS NOW WITH THE PARTIES WHO ARE ENTERING THAT
CONTRACT. THIS STATUTE HERE IS NOT RELATING TO EVERY INDUSTRY, EVERY EMPLOYMENT INDUSTRY, THIS IS RELATES TO REAL ESTATE BROKERS P RAET ESTATE SALESPERSONS. RAVI
JUSTICE WAINER APTER: 8 LAW, RULE OR RG LAGS TO THE CONTRARY SO ET DOES SEEM TO BE
REFERENCING ON THE LAWS, RULES AND REGULATION TO THE COULD HAVE BEEN TRAER. RAVI
SATTIRAJU: BUT IF YOU LOCK AT THE TERM THE BUSINESS RELATIONSHIP AS DEFINED UNDER R E
P S A. OF BUSINESS RELATIONSHIP UPT R E P S A ARE NOT SUBJECT TO OTHER RULES, LAWS OR
EX SEMS SHUNS. JUSTICE WAINER APTER: WHEN HAVE THEY EVER BEEN.
RAVI SATTIRAJU: BREACH OF CONTRACT CLAIM, COULD YOU HAVE LA DEBT MEMORY LINES CLACHL,
YOU WOULD HAVE OTHER BUSINESS CLAIM, A FRAUD CLAIMS PERHAPS. ALL THOSE DIFFERENT, ALL
THOS DIFFERENT CLAIMS COULD BE GOFRED BY A CONTRACT AN THAT THAT POEPT THEY COULD SAY
R THIS WHAT R PECHLT. S A, EVERYTHING IS IN WRITING WITHER YOU DWIEPD AS A EMPLOYEE OR
CONTRACTOR, UNDER THOSE CIRCUMSTANCES YOU COULD DO THAT. THE SCOPE OF THE WPL COVERS
ALL EMPLOYEES, ALL WORKER NFT STATE OF NEW JERSEY AND THERE'S A TEST TO DRM IT.
JUSTICE WAINER APTER: OTHER LAW, RULE OR REGULATION TO THE YOU MEAN BREACH OF CONTRACT
CLAIMS. VAT SAT IT COULD BE A FRAUD CLAMENTS, OTHER CLAIMS, THAT AREN'T YOUR STATUTORY
CLAIMS. THE LEGISLATURE WANT #20D STRIP AWAY SOMEONE'S STATUTORY RIGHTS UP THE WPL WHICH
EFFORTS WERE MADE TO HAVE BEEN MADE TO DO THAT, THEY WOULD BE APDING THE WPL. THE
LEGISLATURE IN 2018 THIT COULD THAT MRISH THE GOAL, THAT IT ACCOMPLISHED TAKE AFTER WAY
PEOPLE RIGHT UPT THE WFRMENT P L. MULTIPLE BILLS TO TROY TO DO THAT SINCE, WHILE THEY HAVE
DONE THAT THEY ALREADY #K078 MRIRN IT. MAT PAT IF THEY SAY IT'S AN, THEY'RE INDEPENDENT
CONTRACTORS IF THEY SO CONTRACT, WHY ISN'T THAT A PERFECTLY EFFECTIVE WAY TO DO WHAT YOU
JUST SAID AMENDS THE, REQUIRES AN AMENDMENT TO THE OTHER STATUTE? JUSTICE
PATTERSON: YOU? TIS PAT SON I DIDN'T QUITE HEAR YOU. JUSTICE PATTERSON:
I THINK YOUR, THEY NEEDED TO AMEND BOTH STATUTES IN ORDER TO ACCOMPLISH WHAT THEY WANTED.
IS THAT YOUR ARGUMENT? RAVI SATTIRAJU: NO BECAUSE IF THE AMENDMENT, IF
THE ORIGINAL LANGUAGE A-6206 WHICH IS AMEND K R E P S A HAD STAYED INCLUDING ITS REFERENCE,
SPECIFIC REFERENCE TO THE WPL THEN YOU WOULDN'T HAVE TO GO BACK AND AM THE WPL AS WELL.
BUT IF THE LANGUAGE WHERE IT SAID, IT SPECIFICALLY REFERENCED THE WPL, IF THAT
GOVERN NOFR MUR FOE STRUCK THAT LANGUAGE IN COULDN'T JUK KWI THE SIGNING STARJTS HE IS
SPESH UNTIL CONJUNCTION WITH THE SIEVENING STATEMENT, THEN IT DOESN'T AM DOM MRISH THAT
GOAL. MAT PAT ISN'T THAT THE STRIKING OF THE WPL REFERENCE CONSISTENT WITH THE OF CONDITIONAL
VETO MESSAGES WHICH IS WE DON'T WANT THIS EXPANDING BEYOND REAL ESTATE SALESPEOPLE, WE
ARE KENNED ABOUT POSSIBLE CONSEQUENCES FOR OTHER, IN OTHER INDUSTRIES. RAVI
SATTIRAJU: ABSOLUTELY NOT, THE LANGUAGE THAT WAS STRUCK, IF YOU WANTED TO, IF THE GOL
OF THIS WAS TO TAKE AWAY PEEB'S RIGHT UNT THE WPL THE SENTENCE I PREVIOUSLY READ DOESN'T
REFER TO 8 INDUSTRY. IT SAYS THE BROKER SALES PERCH OR SALESPERSON SAL NOT BE REQUIRED,
HE'S OWN TALKING ABOUT PENAL IN THIS INDUSTRY THERE. THAT LANGUAGE SHOULD NOT HAVE TO,
AND THE OTHER TESTS INCLUDING THE WPL. JUSTICE PATTERSON: WHAT'S THE LANGUAGE,
THE MESSAGE THAK AMAKES CLEAR THAT IT WAS THE GOVERNOR'S VIEW THAT THIS WAS POTENTIALLY
GOING TO BLEEDER INTO OTHER SITUATIONS INTO THN IS CLEAR, THAT WAS A MAJOR CONCERN AND
THERE WOULD BE ARGUE MUCHES MADE ON THE BASIS OF THE STATUTE THAT MIGHT BE DORD AP EMPLOY
TO OTHER, YOU YOU'RE SAYING THAT WAS A RIDICULOUS IDEA ON THE PART OF THE GOVERNOR THAT
THE LANGUAGE AS IN THE ORIGINAL COULD HAVE APPLIED TO OTHER INDUSTRIES?
RAVI SATTIRAJU: I THINK THE CONCERN THE GOVERNOR HAD WAS THE UNEMPLOYMENT LANGUAGE COULD BE
USED TO EXEMPT OTHER CATEGORIES OF WORKERS, THAT'S WHAT HE WAS KIFRNED ABOUT. THAT MAKES
TWO ON THE POINT RESPECTFULLY. 1ST THE LANGUAGE I JFT READER DOES NOT TALK
THAT HE VETO #, DOES NOT TALK ABOUT ANY OTHER INDUSTRIES, IT TALK ABOUTS THIS INDUSTRY
AND THIS GROUP OF WORKERS AND WHAT TEST THAT THEY WOULD NOT BE REQUIRE TO MAKE. SO THE
SMOEGS IS HAD VOTE TOE STATEMENT HE DIDN'T EN 10 TO PROTECT THESE WORKERS, IF YOU LOOSHG
AT THE LANG WCH HE STRUCK IT WAS OHM ADDRESSING THESE WORKERS. SECONDLY
-- JUSTICE PIERRE-LOUIS: THE LANGUAGE THAT WAS PROPOSED WAS ONLY REFERRING
TO BROENG KERS BUT HIS VEELT TOE STATEMENT, THE GOVERNOR'S VOE TOTE STATEMENT MAKES IT
CLEAR HE WAS KEFRNED ABOUT OTHER INDUSTRIES, SO IEPG YOU KEEP FOE AUFG KUFRG ON THE LANGUAGE
THAT WAS STRUCK BUT HIS VEE TOTE STACHLT MAKES VERY CLEAR THAT HE'S IPG THATTING ABOUT
INDIVIDUALS IN OTHER INDUSTRIES. DO YOU AGREE THAT SL A REFERENCE, THERE ARE REFERENCES
TO OTHER INDUSTRIES IN THE VETO. RAVI SATTIRAJU: HE WAS RERNED ABOUT BOTH,
IN THIS LANGUAGE BUT ALSO THE UNEMPLOYMENT LANGUAGE, THE UNEMPLOYMENT LANGUAGE
POTENTIALLY BEING USED AGAINST OTHER PEOPLE. THE PONT I MAKE RESPECTFULLY THE ADMINISTRATION
IS HEESHGS THEY FOILD AN AMICUS TO CLARIFY WHAT THEY INKEND 10ED SO I THINK THAT IS PERHAPS
THE BEST,S THIS HAPPENED 30 YEARS AGO WE HAVE TO, FLOOR YO AND TENDED WE'RE NOT DPOG THAT,
THIS HAPPENED A YEAR AGO, THE SAD STRAGS IS HERE FILING AN AMICUS DESCRIBING WHAT WAS
INTENDED SO THERE ISN'T A LOT OF NEED FOR CONJECTURE HERE BETWEEN THE SPECIFIC LANGUAGE
THAT WAS STRUCK, THAT SPECIFICALLY REFERENCES THE BROI KERS VEN THE SALESPEOPLE, THAT
SHOULD BE VERY, THAT SHOULD BE VERY CLEAR, THERE'S NOTHING IN THE RECORD BY ANY SPONSOR
OR ANYONE ELSE SAYING THAT THE NEW LANGUAGE WERE YOU NOT INTENDED THE WAY THAT WE'RE PROPOSING
WHICH WOULD HAVE TO COUNTERMAND WHAT THE ADMINISTRATION HAS SAID THROUGH THE
DEPARTMENT OF LABOR. JUSTICE PATTERSON: LET MOW ASK ABOUT, THE
APPLICATION OF THE ABC TEST IN THIS INDUSTRY, SKIPPING OVER A, HOW CAN THE, HOW CAN A REAL
ESTATE BROKER EVER DEMONSTRATE COMPLIANCE WITH THE PART OF THE PLACE, THE PLACE OF BUSINESS
ALTERNATIVE SPECIFICALLY BECAUSE THE BROKERS ACT REQUIRES THAT THEY MAY HAVE BEEN TAKEN
A PLACE OF BUSINESS THAT IS THE BUSINESS ADDRESS OF ALL LN THE PERSONS FOR ALL PURPOSES.
SO AS TO B, THE BROKERS ACT SETS REQUIREMENTS THAT SEEM TO ME THAT MAKE IT
IMPOSSIBLE IN MOST FSHTHS NOT ALL SWITHS SITUATIONS, FOR SOMEONE 0 TO HAVE AN INPEPT
CONTRACTOR RELATIONSHIP AND SATISFY THE B PART OF THE TEST. OF. RAVI SATTIRAJU:
RESPECTFULLY THE ABC TEST IS INTENDED TO HAVE A BROUGHT COVERAGE, TO RECOVER MORE WORKERS
SO THEY'RE NOT SUBJECT TO LEGAL DEDUCTIONS THE TO THE EX STECHT A STATUTORY SCHEME OR
THE NATURE OF SOMEONE'S WORK THAT'S PART OF THE REASON WE BROUGHT THIS CASE WE DO NOT
THING AND THEY NEED THE ABC TEST, IT DOESN'T HAVE TO BE A CLOSE CALL FOR PEOPLE TO BE
COVERED. JUSTICE PIERRE-LOUIS: CAN REAL ESTATE BROKERS EVER MEET THE A
BC TEST I THINK WE CAN ASSUME THEY WERE A AWARE RFT ABC TEST, JUPTED STOO THE JURISPRUDENCE
OF THIS COURT AND UNDERSTANDS WHAT NEEDS TO BE MET FOR THE ABC TEST. AND THE LEGISLATURE
SEFRPLY IS AWARE OF THE NACH CHERP OF THE WORK THAT BROKERS AND SALESPERSONS P GAUGE IN
AND PURSUANT TO THE BROKERS ACT THERE ARE CERTAIN FACETS OF THAT WORK THAT MAKE IT IMPOSSIBLE
FOR THE INDIVIDUALS TO MEET THE ABC TEST. SO WOULD THE LEGISLATURE HAVE
GONE TO THE LINK LENGTHS YOU DISCUSSED IN PASSING THIS LEGISLATION, MAKING REVISIONS TO
THIS LEGISLATION TO MAKE SURE THAT IT'S RETROACTIVELY APPLICABLE JUST FOR THIS
PARTICULAR GROEMENT OR CONTRACT THAT'S EP TERD INTO TO BE NULLIFIED BY AN ABC TEST ANALYSIS.
JUSTICE PATTERSON: IT'S NOT BOWING NOUL FIED FWI THE A. KR B C TIFT.
JUSTICE PIERRE-LOUIS: CAN A REAL ESTATE BROKER EVER MEET IN YOUR OPINION
THE ABC TEST? RAVI SATTIRAJU: I'M NOT, HIEM HAPPY TO ANSWER, IECHL NOT TROYING
TO DODGE YOUR QUESTION, IEP HAPPEN TO ANSWER, I DON'T THINK THEY MEET IT HERE BY 8 STRETCH
OF THE IMAGINATION, I DON'T KNOW ABOUT EVERY OTHER CONTRACT ARRANGEMENT THEY HAVE, PIVENL
I'M I THINK IT WOULD BE VERY DIFFICULT, I THINK ATS IMPORTANT TO COPE 1 THING IN MIND,
YOU CAN BE FOR PURPOSES OF R E P S A AND THEIR BIGS RELATIONSHIP WHAT XH IS WHAT THEY'RE
REFERRING TO, YOU CAN BE DESIGNATED HAPPENS AN PINT CONTRACTOR FOR THAT. SIMULTANEOUSLY,
AT THE SAME TIME, YOU CAN ALSO BE PROTECT PD BY THE WPL FROM A LEGAL DEDUCKS FROM YOUR
WORK. BOTH THOSE THINGS CAN BE. YOU CAN BE AVEN EMPLOYEE OR INDEPENDENT KRKT TORE FR
THE PRPS OF L A D, THAT'S A DIFFERENT TEST THAN YOU ARE FOR THE WAGE PAYMENT LAW.
CHIEF JUSTICE RABNER: CAN THEY MEET IT UPT HAFRMENT IN LIGHT OF THE STAPT TOWER PRO RIGS
153 A REAL ESTATE SALES PERCH IS A PERSON WHO OCHS UNDER THE SUPERVISION AVENUE LICENSE
THE REAL ESTATE COMBROER, CAN THEY MEET A IN LIGHT OF THAT? RAVI SATTIRAJU:
THIS CASE WE FILED THIS CASE, I DON'T THINK THEY MEET ALL 3 OF PRONGS BUT CANDIDLY WE HAVE
NOT FULL DISCOVERY IN THIS CASE, ABSENT A ROAR I DON'T THINK THEY DO. JUSTICE
PATTERSON: IENLT QUESTIONS ARE GOING TORE THE FACT NOT THAT AN INDIVIDUAL REAL ESTATE
BROKER MIGHT TWOOPT DO BITS IN A WAY THAT WOULD MAKE IT I AM POM FOR THEM TO MEET THE
ABC TEST, AND CLIE WITH THE PRO KERS ACT BUT THAT THERE ARE LEGAL REQUIREMENTS UNDER THE
BROI KERS ACT THAT THE ARGUMENT IS OF MAYBE IT IMPOSSIBLE TO SATISFY FOR ANY BROKER THAT
IS COMPLYING WITH THE BROKERS ACT TO MEET THE ABC TEST. IN OTHER WORDS, IF YOUR GOING
TO, THE LEGISLATURE HAS PRO VOIDED REQUIREMENTS FOR BROKERS, THEY HAVE TO BE MET, AND
IF THE BROKER MEETS THOSE REQUIREMENTS, NO MATTER WHAT THE CONTRACT SAYS, NO MATTER WHAT
HOTTER FACTORS MAY BE PRESENT LASS A FACTUAL MATTER, IF THEY'RE COMPLOIING WITH STATUTE
A, THEY CANNOT OF MEET THE ABC TEST. RAVI SATTIRAJU: AND THAT MAY MEAN
WHY UNDER THE WPL, NOT R E P S A, THEY MAY NOT BE EMPLOYEES, LET ME MAKE ONE FOLLOW UP
KEFRNS ARE -- JUSTICE PATTERSON: LET ME PAUSE THERE. BECAUSE IF THAT'S
SO, IF REAL ESTATE SALESPERSONS, I COPE AND WHATLY TO ANY SALES PERPS, BUT I SEE PEFRNS
IN A LOT OF THE BRIEFS. PERSONS, I'M TRYING TO -- BUT IF A REAL ESTATE SALESPERSON CANNOT
IF, A BROKER CANNOT MEET THE ABC TEST AND COMPLY WITH THE BROKERS ACT, AND YET THE EVEN
AFTER THE CONDITIONAL VETO, THE LAW OF NEW JERSEY IS THEY CAN CHOOSE THE EN PENT CONTRACTOR
FORM OF RELATIONSHIP, WE HAVE TWO TOTALLY DIFFERENT CONTRADICTORY STATUTES.
RAVI SATTIRAJU: JUSTICE THIS COURT HAS PREVIOUSLY RECOGNIZED IN THE MACDOUGALL CASE
THAT YOU CAN BE AN INDEPENDENT CONTRACTOR FOR PURPOSES OF THE ONE STATUTE AND YOU CAN
BE AN EMPLOYEE FOR PURPOSES OF OTHER STATUTES. JUSTICE WAINER APTER: THE
BROKER ACT NEVER SAID WE ONLY INTENT FOR TO YOU AN INEN PABLTH CONTRACTOR FOR THE PURPOSES
OF THAT ACT, RIGHT? RAVI SATTIRAJU: IT TALKS ABOUT THE SPECIFIC LANGUAGE
TALKS ABOUT THE BUSINESS RELATIONSHIP. IT DOESN'T TALK ABOUT THEIR STATUTORY
RELATIONSHIP. JUSTICE WAINER APTER: WHAT ABOUT ON THE ALL THE OTHER TIMES,
WHERE THEY AMENDED THE STATUTE WHERE IT HAD PREVIOUSLY JUST SAID WHO IS EMPLOYED BY, VEN
THEY CHAFRM IT TO WHO IS EMPLOYED OR CONTRACTED BY. SO THEY WENT THROUGH THE WHOLE BROKERS
ACT THEY TRIED TO LOCK FOR EVER RE TIME SAID EMPLOY, THEY SWITCHED TO EMPLOY OR
CONTRACTED. YOU'RE SAYING THEY OWN DL THAT WHY? RAVI SATTIRAJU: FOR PURPOSES
OF R E P S A, JUST ONE IMPORTANT POINT I WANT TO MAKE, THE ISSUE OF WHETHER OR NOT EMPLOYEE
REAL ESTATE SALESPEOPLE SHOULD BE EXEMPT UNDER THE WPL BECAUSE IT'S IMPOSSIBLE TO MAKE
OR IT'S NOT SULT OR NOT FAIR, THERE'S WAYS TO ACCOMPLISH THCHT THE WAYS TO ACCOMPLISH
THAT AND THERE HAVE BEEN EVER FOR THE MADE TO COME LISH THAT, THAT BELONGS IN THE
LEGISLATIVE PROCESS TO EXEMPT THEM UNDER THE WPL. AND THERE'S BEEN A BIM SHTHS THERE WERE
TWO BILLS PENDING IN SIN THE PEN DIDN'T SEE OF THIS CASE TO DO JUST THAT, AND THEY BOTH
FAILED. SO THE REKWALT JALT UPT THE LAW AND THE LEGISLATIVE PROCESS THERE'S NOT BEEN
SUFFICIENT SUPPORT TO EXEMPT REAL ESTATE SALESPEOPLE FROM THE WPL. EFFORTS HAVE BEEN
MADE, I'M SURE LIKE THE ONES YUR MAKING WHETHER AETS A GOOD IDEA OR FAIR OR NOT HAVE BEEN
PRESENTED, THEY HAVEN'T GARNERED SUFFICIENT SFROERT DO THAT BUT THAT THE WHERE THAT
DEBATE BLOMGS IN THE LEGISLATIVE PROCESS. CHIEF JUSTICE RABNER: YOU PUT
PARTICULAR MEANING TO THE TERM BUSINESS AFFILIATION, IEVENLG THAT'S THE LANGUAGE IN
THE STATUTE, 3.2(B), WHAT'S THE BASIS FOR THE BASE THAT YOU'RE ADVANCING FOR THAT PHRASE?
OF. RAVI SATTIRAJU: WHAT'S THE MEANING, WHAT DO I TAKE PARTICULAR IMPORT
TO THAT PHRASE. CHIEF JUSTICE RABNER: YOU SAID BUSINESS AFFILIATION MEANS
X, WHAT'S YOUR SOURCE FOR THAT? RAVI SATTIRAJU: OOM SAYING THE QUESTION
WAS IN WHAT CONTEXT WOULD IT MATTER, COULD IT BECOME REL VERNGS I GAVE EXAMPLES OF WHERE
I THOUGHT IT COULD BE. BUT WHAT IT DOES NOT SAY IS -- CHIEF JUSTICE RABNER:
YOU'RE NOT RELYING ON A STATUTORY DEFINITION OR ANYTHING THAT PARSING BUSINESS FILM YAGS,
IT'S YOUR INTERPRETATION OF WHAT THOSE WORTDZ MEAN. SLAT SAT I'M SAYING WHAT IT WOULD
BE REL VEN BECAUSE WHAT R P E P S A AND WHAT THIS BILL WERE YOU ATTEMPTING TO DO I'LL
SAY THE AGAIN, IT WAS AGAIN NOT OTHER INDUSTRIES BUT THIS SPECIFIC INDUSTRY THAT BROKERS
AND SALESPEOPLE SHA NOT BE REQUIRED TO SATISFY ANY OTHER TEST FOR ANY OTHER LAW, RULE
OR REGULATION INCLUDING BUT NOT LIMITED TO THOSE TESTS SET FORTH IN THE STATUTES INCLUDING
THE WPL TO BE DEEMED INDEPENDENT CONTRACTOR AS PROVIDED IN THIS SECOND FOR PURPOSES OF
ANY OTHER LAW, RULE OR REGULATION. THAT DELETED LANGUAGE, CHIEF JUSTICE, IS NOT, TAKES
AWAY ANY ARGUMENT THAT IF FOR THE BUSINESS AFFILIATION ARGUMENT, THAT LANG WFRP I JUST
READER, THAT'S WHAT WOULD HAVE COME MRIRN, DO VEVEN TO COMPLY WITH THE WPL. THAT'S WHAT
THAT SDENS OBVIOUSLY WAS TRY TG GATE AT R. JUSTICE WAINER APTER: YOU BASE
A LOT ON THAT THE DELETED LANGUAGE BUT BE WHAT THE LANGUAGE THAT ROW MAINS THAT SAYS SECTION
3 OF THIS HAKT SHAM TAKE EFFECT IMMEDIATELY AND SHALL APPLY RETROACTIVELY TO EVEN FORCE
ANY WRITTEN AGREEMENT BETWEEN A SALES PERCH AND A BROKER WHERE THE WRITTEN AGREEMENT DEFINES
SETS FORTH, IDENTIFIES OR PROVIDES THAT THE SALESPERSON IS OR WAS AN INDEPENDENT
CONTRACTOR. IECHL READING FROM THE AMENDMENT OF 2021 THAT WAS, NOT THE DELETE THE PORTION.
RAVI SATTIRAJU: I'M READING THAT. AND AGAIN I THINK THIS STATUTE WAS ADDRESSING
DESIGNATIONS UNDER THIS STATUTE. JUSTICE WAINER APTER: IT DOESN'T SAY UNDER
THIS STATUTE AND WHERE YOU WERE AND HAD AING YOUR HAT ON THE WORE BUSINESS AFFILIATION,
AND THE WORD BUSINESS AFFILIATION DOES NOT APPEAR HERE. IT JUST SAYS THAT CONTRACTS THAT
SAY THAT A PERSON IS AN INDEPENDENT CONTRACTOR MUST APPLY RETROACTIVELY AND BE EN FORTSED.
SO HOW COULD A COURT CHOOSE NOT TO ENFORCE THAT CONTRACT WHICH WHEN THE LEGISLATURE JUST
TOLD THE COURT THAT THE CONTRACT MUST BE EVEN FORTSED? RAVI SATTIRAJU:
THE CONTRACT, WORRY NOT SAYING THE CONTRACT DOESN'T HAVE FORCE UNDER THE STATUTE, UNDER
THIS STATUTE. JUSTICE WAINER APTER: IT DOESN'T SAY UNDER THIS STATUTE,
IT DOESN'T SAY SECTION 3 OF THIS HAKT SHALL TAKE EFFECT IMMEDIATELY AND SHALL APPLY
RETROACTIVELY TO EDGE FORTS BUT NOT CHAFRM ANY BETWEENS THE DEFINES WHOEVER AS AN
INDEPENDENT CONTRACTOR, OIM FOR PURPOSES OF THIS ACT. RAVI SATTIRAJU:
RESPECTFULLY I THINK IF YOU, THE DELETED LANGUAGE IS THERE, THE DELETED LANGUAGE NEVER
EXISTED AND THERE WAS OINL THIS LAVENG WITCH THAT WAS PROPOSED AND PASSED, I UNDERSTAND
THE ARGUE MANY YOU'RE MAKING. BUT IF YOU LOOK AT THE LOIF TIFF STATEMENT PLUS THE LANGUAGE
THAT WAS DELETED THAT SPECIFICALLY SAID YOU DON'T HAVE TO MEET ANY TEST UNDER THE WAGE
PAYMENT LAW, NOR TO BE DEEMED AN INDEPENDENT CONTRACTOR -- MAT PAT IF THE GOVERNOR WANT
ED TO GET RID OF THE LANG ITCH WERE THAT TURN OUT TO HAVE AS YOU REMEMBER RISER THE CONDITIONAL
VEE TOE RS WHY DIDN'T THE GOVERNMENT EP TIRE MANY REVETO THE BILL. RAVI
SATTIRAJU: IEMENT GOVERNOR, THIS WHAT THE ADMINISTRATION UNDER R E P S A, IF YOU WANT
TO DID HE SAY SIGNAL NAT YOURSELF UNT REPUBLIC R EMENT P S A YOU CAN DO THAT BUT IT DOESN'T
MEAN, AGAIN THIS HAPPENS ALL THE TIME IN NEW JERSEY, YOU COULD BE AN EMPLOYEE FOR PURPOSES
OF UNEMPLOYMENT, NOT AN EMPLOY FOR PURPOSES OF THE L A D, AND YET THE BE AN EMPLOY UVEN
THE WPL AND THEN YOU HAVE WORKERS' COMP. WE HAVE ALL THESE DIFFERENT COMPS UPT DIFFERENT
STATUTE TOEFR SCHEMES STO SEE WHETHER SOMEONE IS OR IS NOT AN EMPLOYEE FRPT BUT JUST
BECAUSE IF I'M IN THE AN EMPLOYEE, IF I DON'T MEET THE PA COULD YOU SKI TEST TO BE AN EMPLOY
UNDER CEPA AND IT SAYS YOU SHALL MEET THIS TEST, THAT DOESN'T MEAN HIEM MY CLAIM IS DEAD
UNDER THE WPL IN ORDER T SAY THAT I'M, I RECEIVED THE PRO TECH UNDER THAT LAW. IT'S A
DIFFERENT STAFF TOWER SCHEME. STOETS THIS IS WHAT THE MACDOUGALL CASE THIS
COURT MASS HELD YOU CAN AND ARN EMPLOY FOR PURPOSES OF ONE STAFT BUT NOT ANOTHER STAFT.
IF YOU WANTED TO TAKE AWAY SOMEONE'S RIGHTS UP A STATUTE THEY SHOULD SPECIFICALLY REFERENCE
IT. THE LOIF TIFF, THE LAPGS WE WE CITED ABOUT THE IMPORT OF LEGISLATIVE LANGUAGE
INCOLLIDING WHAT WAS DELETED IS IMPORTANT. AND HERE THE LANGUAGE COULD BE NOT MORE CLEAR
ABOUT WHAT WAS DELETED IN TERMS OF NOT MAKING THESE SALESPEOPLE HAVE TO COMPLY WITH THE
WPL AND THE TEST THEIR IN. THIS IS WHY THE ADMINISTRATION IS HERE, AGAIN THIS ONLY TOOK
PLACE SEVERAL MONTHS AGO COULDN'T FIRMG THE INTERPRETATION WORRY PUTTING OUT. NO ONE
HAS COME FORWARD SAYING THAT THE BILL HAD A DIFFERENT INTERPRETATION. CHIEF
JUSTICE RABNER: NEW JERSEY REALTOR HAS MADE THE ARGUMENT THAT YOU CAN'T APPLY THE WPL
AND PAY COMMISSION SALESPEOPLE BIWEEKLY MANY ARE THEY RIGHT? RAVI SATTIRAJU:
I'M SORRY I DIDN'T HAR YOU. CHIEF JUSTICE RABNER: YOU CAN'T APPLY WPL TOCHLT
COMMISSION SAELT PEOPLE VEN PAY THEM BIWEEKLY, ARE THEY WRONG. RAVI SATTIRAJU:
THEY ARE WRONG, YOU CAN STRUCTURE AN AGREEMENT WHERE BY THE COMMISSIONS ARE PAID AS EARNED.
THERE'S A WAY TO REACH COMPLIANCE WITH THAT. JUSTICE WAINER APTER: NO,
THEIR POINT WAS THE BROKERS ABLTH REQUIRES A COMMISSION BE PAID WITHIN A CERTAIN NUMBER
OF DAYS THAT IT IS EARN. THAT CANNOT BE EVERY OTHER WEEK FOR A WHOLE YEAR IF YOU'RE ONLY
SELLING THREE HOUSES DURING ONE YEAR. INSTEAD YOU NEED TO GET THREE LUMP SUM PAYMENTS,
YOU CANNOT RECEIVE A CHECK HON 26 DIFFERENT PAYDAYS AND HAVE YOUR COMMISSION STRED OUT
OVER THE COURSE OF 26 DIFFERENT PAYDAYS BECAUSE THE BROKERS ACT SAYS IT HAS TO BE PAID
WITHIN A CERTAIN NUMBER OF DAYS THAT IT IS OWED. THAT WAS THEIR POINT I THINK.
RAVI SATTIRAJU: THAT MOIPT IS INCORRECT EVEN IF A COMMISSION ONLY EMPLOYEE, YOU'RE STILL
PROTECTED UPD THE WPL. IT PRO TECH THE YOU FROM ILLEGAL DEDUCKS THAT'S WHAT'S HAPPENING
HERE, THEY'RE PUTTING ALL THEIR BUSINESS OVERHEATHER IS HAVING TO BE PAID BY THESE
ICHT As. SO IF SOMEONE HAS,S WHEN YOU'RE PAID YOUR MONEY WHEN IT'S EARN, THEY CAN DEFINE
WHEN THEIR MONEY IS EARNED, MAT PAT DOES THE WPL REQUIRE PERIODIC PAYCHECKS? P SAL.
RAVI SATTIRAJU: IF IT'S A SALARY, BUT IF THEY'RE, YOU CAN STRUCTURE A
COMPENSATION STRUCTURE THAT COMES, BECAUSE YOU'RE COMPARING HAPPEN PELS AND ORANGES BHUT
FTS A HE A SALARY, SAYING SOMEONE MAKES A HUNDRED THOUSAND DOLLARS A YEAR, YOU EARN THAT
MONEY AS YOU'RE WORKING. JUSTICE PATTERSON: SALARY IS A EASY CASE. IS
YOUR ANSWER TO THE AMICUS ARGUMENT OF THAT THAR ALL WRONG ABOUT WHAT THE WPL REQUIRES,
THAT IT'S ALL FINE TO DO SOMETHING THREE TIMES A YEAR FOR THREE HOUSES SOLD ON COMMISSION,
YOU JUST HAVE TO THE. RAVI SATTIRAJU: WHEN THE MONEY, THE MONEY IS NOT
EARNED IT'S NOT A WAGE UNTIL IT'S EARNED. IT'S EARNED WHEN THEY CAN DEFINE THAT IT'S EARNED
UPON P THEIR RECEIPT OF THE MONEY. AT THAT POINT AETS A WAGE AND NEEDS TO BE PAID WITHIN
A CERTAIN PERIOD. WHAT THEY'RE SAYING, THEY CAN HAVE A COMMISSION EARNED AND THEY DOEVEN
HAVE 0 PAY IT FOR A YEAR BECAUSE IT'S NOT TECHNICALLY NOT CORRECT. SO UPON IT BEING
EARNED, THEY HAVE TO PAVE ET WITHIN A CERTAIN PERIOD. JUSTICE WAINER APTER:
I THOUGHT I JFT HEAR YOU SAY THEY CAN SAY THE ANTICIPATE ONLY EFRNED WHEN THEY PAY IT.
RAVI SATTIRAJU: THEY CAN ARRIVE AT A SITUATION, AT A SCENARIO WHERE THEY
DOPE, THE MONEY ISN'T EARNEDLY THAT THEY RECEIVE THE MONEY FROM THE TRANSACTION.
JUSTICE WAINER APTER: BUT THEN THEIR POINT IS THEY HAVE TO PAY THE LUMP SUM ROIT AWAY
AND THEY CAN'T WITHHOLD AND PAY IN SMALL CHUNKS EVERY TWO WEEKS THAT THAT CONFLICTS WITH
THE WPL VAT SAT IT DOESN'T COULDN'T TLIKT BECAUSE THE HAD HE DON'T HAVE TO PAY THE EVER
ROW 2 WOKS BECAUSE IT'S NOT EARNED EVERY 2 WE CANS, IT'S EARNED WHEN THEY RECEIVE THE
MONEY, UPON THEM RECEIVING ARE THE MONEY THEY CAN MAKE THE PAYMENT WITHIN A CERTAIN PERIOD OF
TIME AND AT THAT POINT THEY'RE NOT, THAT'S WHAT THIS CASE IS ABOUT THEY'RE NOT ALLOWED
TO MAKE ILLEGAL DEDUCK, FROM THE MONEY THOSE PEOPLE EARNED. CHIEF JUSTICE
RABNER: HELP US UNHOW IT WOULD WORK. IN THE CASE OF A COMMISSION SALESPERSON WHO EARNS,
SELLS A HOUSE NF FESHS ANOTHER ONE IN SEPTEMBER AND THE LAST ONE IN NOVEMBER, HOW ARE
PAYMENTS MADE CONSISTENT WITH THE WPL? OF. RAVI SATTIRAJU: UPON THE MONEY,
THE COMMISSION WHEN THE TRANSACTION IS COMPLETED, THE BROKERAGE REEFRNS THE MONEY AT THE
CLOSING, THEY WOULD RECEIVE THE MONEY, AT THAT POINT THAT'S EARNED AND THEN THEY WOULD
MAKE THE PAYMENT WITHIN A CERTAIN, WITHIN THE APPROPRIATE PERIOD TO THE COMMISSIONED
SALESPERSON WITHOUT THE DEDUKDZS AND THAT WOULD BE, THAT WOULD BE FOR THE FEBRUARY
TRANSACTION. IF THEY DIDN'T EARN ANYTHING ELSE TWEEVEN THOSE PERIODS, IF THEY DIDN'T
WORK, IF THEY'RE ONLY A COMMISSION ONLY SCENARIO, THEN THE NEXT PAYMENT THEY COULD EARN
WOULD BE, WHEN THEIR NEXT TRANSHACK IS MADE. CHIEF JUSTICE RABNER: GET THE
LUMP SUM PAYMENT FOR EACH SALE SHORTLY AFTER. RAVI SATTIRAJU: CORRECT.
JUSTICE WAINER APTER: WHERE IT WFRMENT P L IS HE AN EMPLOYER MUST "PAY THE
FULL MENT A OF WAGES DUE TO HIS MRUS CALENDAR MONTH ON REGULAR PAY DAYS SAYS DEBTS SIGNAL
98ED IN ADD DRANS BY THE EMPLOYER. THEIR POIVENT IS THE BROKER CANNOT DO THAT, THEY CANNOT
DID HE SAY SEG 98 REGULAR PAYDAYS AND THEN PAY SOME SORT OF THE WAGES EVERY, AT LEAST
TWICE ON THOSE REGULAR PAYDAYS. RAVI SATTIRAJU: THE WAGES THAT THEY'RE
EARNING ARE THE COMMISSIONS. THE COMMISSIONS WOULD BE MADE WITHIN A CERTAIN PERIOD.
JUSTICE PATTERSON: ARE YOU SAYING FOR REAL ESTATE SALESPERSONS YOUR POSITION
IS THAT THEY NEED NOT COMPLY WITH THE PROVISIONS OF THE WPL THAT REQUIRE REGULAR PAYDAYS?
RAVI SATTIRAJU: YOU CAN HAVE, THEIR COMMISSION ONLY SALESPEOPLE WHO WORK
ALL OVER THE STATE OF NEW JERSEY. THEY'RE STILL EMPLOYEES. AND BUT THEY GET THEIR WAGES
WHEN THEIR COMMISSIONS, WHEN, AS THEY'RE EARN THE, GENERALLY WHEN THE MONEY IS RECEIVED
BY THE EMPLOYER. SO THERE ARE A LOT OF PEOPLE IN TECH, A LOT OF PEOPLE IN LOT OF INDUSTRIES
THAT CALL THEIR PEOPLE EMPLOYEES AND THEY DON'T HAVE TO MAKE BIWEEKLY MIEMENTS FOR MONIES
THAT AREN'T EARNED, ANY A COMMISSION ONLY SHAELS POSITION AND THEY CAN MAKE THE DEDUCTIONS
OR MAKE THE PAYMENTS WHEN THE MONEY IS EFRNED WHEN TE ROOFSH IT. THAT'S WHAT'S EMPLOYERS
THROUGH TWLOUT THE STATE OF NEW JERSEY DO, THEY DO DO THAT. CHIEF JUSTICE
RABNER: LAEG ELSE YOU WOULD LIKE TO ADD AT THIS POINT. RAVI SATTIRAJU:
I THINK THE MAIN POINT I WOULD LIKE TO ADD IS THAT, AND AGAIN I STATED EARLIER I DON'T WANT
TO BE BEAT THE POINT BUT LOOK AT THE SPECIFIC LANGUAGE, POINT I WOULD STRESS YOU CAN BE AN
EMPLOYEE FOR PURPOSES OF DIFFERENT STATUTES AND THE LANGUAGE THAT WAS STRUCK IN CONJUNCTION
WITH THE I THINK SUPPORTS THE POSITION WE'RE TAKE I WANT TO THANK YOU YOUR HONOR FOR
YOUR TIME. CHIEF JUSTICE RABNER: WOEL HAVE ARE YOU BACK FOR YOUR REBUTTAL.
MR. SAXAYNA. MAYUR SAXENA: THANK YOU YOUR HONOR, GOOD AFTERNOON AND MAY IT
PLEASE THE COURT. I'M HERE TODAY ON BEHALF OF AMICUS CURIAE THE DEPARTMENT
OF LABOR. THE DEPARTMENT OF LABOR IS THE STATE AGENCY THAT'S CHARGED WITH ENFORCING NEW
JERSEY'S LABOR LAWS. SINCE 1965, THE DEPARTMENT HAS ADMINISTERED THE WAGE PAYMENT LAW
AND THE UNEMPLOYMENT COMMON SAGS LAW, BOTH OF WHICH ARE AT ISSUE IN THIS CASE.
PLAINTIFF KENNEDY BRINGS THIS CLAIM UNDER THE WFRMENT P L WHICH IS A REMEDIAL STATUTE
THAT GUARANTEES THE BASIC RIGHT TO ALL NEW JERSEY EMPLOYEES WITHOUT EXCEPTION OF FULL,
TIMELY AND PREDICTABLE PAYMENT AND IT HATS SINCE 1965. I NOTE THAT JUST
TO CALL ATEP TO HOW UNUSUAL OF A CHAFRM THIS WOULD BE WERE WE TO INTERPRET THE BROKERS
ACT AS CARVING OUT REAL ESTATE SALESPERSONS FROM THE WAGE PAYMENT LAW. THEY WOULD BE
THE OPENLY SUCH EMPLOYEES WHO ARE EXEMPTED. JUSTICE PATTERSON: THEY CANNOT
COMPLY WITH THE BROKERS ACT AND MEET THE ABC TEST, AND I WILL TELL YOU WITHOUT BEING ANY
EXPERT ON THE REAL ESTATE FIELD, IT APPEARS THAT THAT MAY IN FACT BE TRUE. WAF IS THE
DEPARTMENT'S POSITION ON THAT QUESTION? MAYUR SAXENA: IEP WANT TO ANSWER
THAT QUESTION DIRECTLY, URGE, BUT I ALSO DON'T WANT TO FOR GET ABOUT A COUPLE OF IMPORTANT
THIJS THAT WE NEED TO GET OUT. THE DEPARTMENT'S SPIGS THAT IT DEPENDS ON THE FACTS AND
CIRCUMSTANCES. THE ABC TEST COULD POTENTIALLY BE MET BY A REAL ESTATE SALESPERSON UNDER
THE RIGHT CIRCUMSTANCES AND I KNOW THAT THERE ARE A LOT OF SISHSS UNDER WHICH IT CANNOT
BE MET AND I'D LIKE TO WALK YOU THROUGH ALL OF THAT. BUT BEFORE WE GET THERE, IT'S EVEN
IF THE ABC TEST COULD NOT BE MET BY ANY REAL ESTATE SALESPERSON, THERE WOULD NOT BE A
CONFLICT BETWEEN THE BROKERSES ACT AND THE ABC TEST. THE REASON FOR THAT IS THAT THE
BROKERS ACT DOESN'T SAY THAT REAL ESTATE SALESPERSONS ARE CONSIDERED INDEPENDENT
CONTRACTORS FOR ANY AND ALL PURPOSES UNDER LAW. THAT WOULD INCLUDE NOT JUST THE WAGE PAYMENT
LAW, THAT WOULD INCLUDE THE L A D, THAT WOULD INCLUDE CEPA, THAT WOULD INCLEED CERTAIN
COMMON LAW TORT CLAIMS AS MR. SATTIRAJU APPELLATE IN THE MACK GUG ODUG GULL CASE THIS
COURT HAS BEEN CARE FOLLOW TO EXPLAIN YOU CAN BE AN INDEPENDENT CONTRACTOR FOR SOME CASE
BUT BE AN EMPLOYEE FOR OTHER PUFRPS. JUSTICE PATTERSON: WAS IT THE COUNSEL
TS REFERRING TO, HE WAS REFERENCING THE ADMINISTRATION, IS IT THE DEPARTMENT'S
UNDERSTANDING THAT THE VETO THAT THE CONDITIONAL VETO WAS INTENDED TO LIMIT THE INDEPENDENT
CONTRACTOR STATUS THAT APPEAR IN THE CONTRACTS SO THAT IT WOULD NOT APPLY TO THE WPL?
IN OTHER WORDS, WHEN LANGUAGE SURVIVE THE CONDITION NUMB VETO ABOUT INDEPENDENT
CONTRACTOR, CONTRACTS ARE ENFORCEABLE, WE SHOULD INTERPRET THAT TO MEAN BUT NOT FOR PURPOSES
OF THE WFRMENT P L? MAYUR SAXENA: YOUR HONOR, I THINK THE BEFT WAY TO ANSWER
THE SKWEGS TO WALK THROUGH THE LANGUAGE BECAUSE WILL IS AN EXPLANATION THAT ACTUALLY MAKES
A LOT OF SENSE. SO IF WE COULD, IF WOULD YOU LIKE TO FOM ALONG, IT APPEARS AT THE AP
PEVEN DIKS TO OUR BRIEF TO THE DEPARTMENT'S BRIEF, AT PAGES A B G A-2 AND 3.
JUSTICE PATTERSON: YOUR AP PEVEN DIKS TO THE AMICUS BRIEF, PLAY MAY THAT'S CORRECT, IT'S
ATTACHED TO THE BRIEF. CHIEF JUSTICE RABNER: GO AHEAD, COUNSEL.
MAYUR SAXENA: SO LET'S BEGIN WITH THE TEXT OF THE STATUTE. I THINK AETS USEFUL TO
START WITH WHAT THE STATUTE DOES NOT SAY. AND THEN I'LL QUICKLY COME TO WHAT THE STATUTE
DOES SAY BECAUSE THAT'S EQUALLY AS IMPORTANT. THE VETO TEXT, THAT'S THE
UNDERSCORED TEXT TOWARDS THE BOTTOM OF PAGE A G A 002, THAT VETOED TEXT IS NOT MERE SURPLUSAGE
OR REDUNDANCY, THE VETOING THAT THAT TEXT IS ACTUALLY QUITE MEANINGFUL. IF YOU LOOK AT
THE TEXT, THAT BILL BRO VIEDED THAT ANY REAL ESTATE SALESPERSON "SHALL BE DEEMED AN
INDEPENDENT CONTRACTOR IF THEY ARE IDENTIFIED AS SUCH IN A WRITTEN AGREEMENT. " SO THAT
LANGUAGE SAYS EXPLICIT THE THAT THE LABEL THAT'S USED IN THE CONTRACT IS DISPOSITIVE.
WHY SCH RELEVANT, WELL, THAT IS A CLEAR LOIF TIFF DIRECTIVE TO DISREGARD
R DECADES OF PRECEDENT STATING THAT LABEL THE ARE NOT DETERMINATIVE BUT ACTUALLY THE ACTUAL
FACTS AND CIRCUMSTANCES ARE DETERMINATIVE AND THAT'S INCLUDING UNDER THE WPL BUT ALSO
INCLUDED UNDER THE L A D AND CEPA AND UNDER MANY OTHER STATUTES. SECOND,
THE BHIL SAID THAT "A SELLS PERSON "SHALL NOT BE CLASSIFIED AS AN EMPLOYEE FOR ANY PURPOSE
UNDER ANY LAW. " SO THAT AGAIN IS THE TYPE OF CLEAR AND EXPLICIT LANGUAGE
THAT YOU WOULD WANT TO SEE IF YOU WERE GO LONG TO ALLOW PARTIES TO CONTRACT AROUND NOT
JUST THE WPL BUT ALL OF THESE MYRIAD OF OTHER LAWS. YOU KNOW, THIS TEXT
WOULD HAVE ADDRESSED THE DECISION OF MACDOUGALL VERSUS WEICHERT WHICH DID HOLD NO INDEPENDENT
KRKT FOR FOR SOME PURPOSES AND EMPLOYEE FOR OTHER PURPOSES. AND THIS COURT CONCLUDED
THAT THE CLASSIFICATION "PROP PEFRLY VARIES WITH THE PUBLIC POLICIES UNDERLYING EACH TACHT
STATUTE" WITHOUT THIS TEXT A REAL ESTATE SALESPERSON WOULD HAVE TO CONTEND WITH A HEAL
RAET REAL ESTATE ESTATE EFS UNDER THE LFRMENT A D AND CEPA AND THE RIGHT TO CONTROL TEST
UNDER COMMON LAW TORT AND THEY ALL HAVE DIFFERENT STANDARDS. SO MANY COULDING
TO YOUR QUESTION, JUSTICE PATTERSON, IT IS CERTAINLY POSSIBLE THAT AN EMPLOYEE, THAT A
WORKER COULD FAIL THE ABC TEST AND BE CONSIDERED AN EMPLOYEE FOR PURPOSES OF THE WPL,
BUT COULD PASS THE RIGHT TO CONTROL TEST WHICH IS MUCH LESS STRINGENT AND BE CONSIDERED
AN INDEPENDENT CONTRACTOR FOR PURPTS OF COMMON LAW TORT. AND THAT'S COMPLETELY EMBRACED
WITHIN THE DECADES OF PRECEDENT ON EMPLOYMENT CLASSIFICATION IN THE STATE.
JUSTICE PATTERSON: WHY ISN'T THAT IN THE VETO MESSAGE? THERE'S NOTHING REMOTELY SUGGESTING
THAT IN THE VETO MESSAGE, UFRNG, AND I READ A NUMBER OF GOVERNOR MURPHY'S VETO MESSAGES
AND THEY EXPLAIN THE, WHERE WHAT WE'RE SUPPOSED FO TAKE FROM THE VETO MESSAGES THE REASON
FOR THE KIKS UNTIL VETO. PLAY MAY ABSOLUTELY ARE. JUSTICE PATTERSON: THAT
K B AN INTERPRET IMPORTANT TO THE STATUTE THAT FOLLOWS. MAYUR SAXENA: I THINK
THERE'S SOME INARTFUL AN WITCH IN THE VETO MESSAGE FOR SURE, I THINK YOUR HONOR'S ARE
CORRECTLY READING EX SPREPGS A CONCERN THAT OTHER EMPLOYERS HE CAN CROSS THE STREET WOULD BE
MISS CLASSIFY THEIR EMPLOYEES IF THE UNEMPLOYMENT COMPENSATION LAW WERE TO BE USED LASS
A JUSTIFICATION TO THE IMPORTED INTO THE WPL, THAT'S ABSOLUTELY CORRECT, YOU'RE READING
THAT LANGUAGE CORRECTLY. BUT THE RANG WITCH THAT FOLLOWS IT AND NOT JUST
THE LANGUAGE THAT MR. SATTIRAJU POINTED TO, IS LIMITED TO FOR A REASON, THE ACTUAL REEMGS
SHIP AND CIRCUMSTANCES SURROUNDING AN INDIVIDUAL'S EMPLOYMENT SHOULD GOVERN, NOT
THE EXIST TAVENTS OF AN UNRELATED EX SEPS SHUN CONTAIN IN THE UCL LAW FRP WOULD IT HAVE BEEN
BETTER TO DHUT SENTENCE OFF AT THE COMMA, YES, BUT IT IS NONETHELESS TRUE THAT IN EACH
OF THESE CONTEXTS, IT IS THE ACTUAL CIRCUMSTANCES THAT GOVERN AND WHAT WE'RE DOING BY
ALLOWING JUCHTD THE CONTRACT TO HAVE LABEL TO GOVERN -- JUSTICE PATTERSON:
WHY WOULD YOU LEAVE THE LANGUAGE IN, IF THE ACTUAL CIRCUMSTANCES GOVERN AND YOU ARE
TELLING US THAT THAT'S TO THE EXCLUSION OF THE CONTRACTUAL LANGUAGE, WHY DID THE EP FORCE
ABILITY OF INDEPENDENT CONTRACTOR CONTRACTUAL LANGUAGE SURVIVE THIS VETO? IT RESPECTFULLY
DOESN'T MAKE ANY SENSE. MAYUR SAXENA: THAT BRIPGS US BACK TO THE STATUTORY
TEXT, I WANT TO BRING US A G A-2 AND 3 BECAUSE YOU'RE ABSOLUTELY RIGHT AND WILL IS AN
ANSWER ON THAT, TOO, YOU? JUSTICE PATTERSON. SO WHAT WE, SO JUST MOVING
FROM OUR LAST POINT, WHAT WE DON'T HAVE IS THE TYPE OF CLEAR AND EXPLICIT LANGUAGE THAT
YOU WOULD WANT TO OVERTURN ALL THESE WELL ESTABLISHED STATUTORY RIGHTS.
LET'S LOOK AT WHAT WE DO HAVE. SO THE SECTION THAT JUST HIS PATERSON WAS REFERS A G A-3
-- CHIEF JUSTICE RABNER: ARE YOU REFERRING THE STATUTE ON OR ABOUT THE VETO?
MAYUR SAXENA: I'M BACK IN THE APPENDIX TO OUR BRIEF, YOUR HONOR.
CHIEF JUSTICE RABNER: REFERENCING THE STATUTE? MAYUR SAXENA: REFERENCING
THE STATUTE. CHIEF JUSTICE RABNER: TELL US THE SEK OF THE STATUTE.
MAYUR SAXENA: THAT'S YOU WILL CHL A GREAT POINT, URGE, BECAUSE THE TEXT DOES TO THE APPEAR
IN THE NEW JERSEY STATUTES ANNOTATED. WE'RE LOOKING AT THE CHAPTER LAW HERE, RIGHT.
JUSTICE WAINER APTER: YOU MAY I APPROACH THE SHALL TAKE EFFECT IMMEDIATELY.
CHIEF JUSTICE RABNER: LANGUAGE UPT THE EFFECTIVE DATE. MAYUR
SAXENA: THAT'S IMPORTANT. I JUST WANT TO DRAW THAT DISTINCTION OUT A LITTLE BIT.
CHIEF JUSTICE RABNER: IT DOES HAVE THE FORCE OF LAW, MAY HAVE MAY SDIT HAVE THE FORCE
OF LAW BUT IT WOULD BE A VERY ODD PLACE TO INSIRT A SUBSTANTIVE LIMITATION ON THE ACT.
SO ALL OF THE PROPOSED AMENDMENTS. JUSTICE PATTERSON: I DON'T FOLLOW THAT.
JUSTICE WAINER APTER: CHAPTER 29 OF SECTION 486, MAY HAVE MAY LET ME GO
TO SECTION 29 WITH YOU. SO YOU SEE THERE IT SAYS. JUSTICE PATTERSON: STICK
WITH UNDER THE CIRCUMSTANCES WITH THE PAGES. PAGE 3? CHIEF JUSTICE RABNER:
SOMEWHERE ON THE PAGE, SOMEWHERE ON THE STATUTE. MAY MY I'LL BRIPG US BACK. LET'S DO THIS,
LET'S GO TO A G A-2, IF WE COULD. OKAY. THIS WAS THE PORTION OF THE AMENDMENT THAT WAS
SUPPOSED TO APPLY TO THE SUBSTANTIVE PROVISIONS OF THE LAW. IT WAS SUPPOSED TO -- MAT
PAT WHEN YOU SAY THIS, UNDERLINED SECTION. MAYUR SAXENA: SECTION 3, IT'S
PARAGRAPH ON THE BILL, APPEARS THAT AFTER THE BOLD BRACKET RIGHT UNDER THE ENACT.
LANGUAGE. MAT PAT NO BROKERS OR SALESPERSON. MAY HAVE MAY YOU GOT IT. JUSTICE
PATTERSON: THAT IS WHAT? MAYUR SAXENA: LET ME STEP BACK. I WANT TO CLARIFY
EXACTLY WHAT THIS LAVENG WITCH IS DOING AND WALK THROUGH THIS IN AN ORGANIZED WAY.
SECTION 3 AS IT APPEAR ON THIS PAGE IS THE SUBSTANTIVE PROVISION OF THE BROKERS
ACT THAT CURRENTLY EBBS SIFRTS IN THE LAW, ALL OF THE TEXT THAT IS NOT UNDER LINE, RIGHT,
SO THAT SUBSECTION A AND SUBSECTION B. JUSTICE PATTERSON: I WANT TO PAUSE
YOU THERE, I WANT TO SEE IF MY UFRNDZING IS CORRECT. AND THAT IS BECAUSE THE 2018
STATUTE ADDED ALL OF THIS LANGUAGE. TRYING TO GET THE STORY. MAYUR SAXENA:
YOU GOT IT. I PROCHL MISS I'LL GET YOU THERE. JUSTICE PATTERSON: SO THEN
THEY ADDED THE UNDERLINED SECTION OR ATTEMPTED TO ADD THE UNDERLINED SECTION IN THE 2022
AMENDMENTS. MAYUR SAXENA: CORRECT. JUSTICE PATTERSON: OKAY
AND THERE'S A CONDITIONAL VEE TOE THAT TOOK OUT SOME BUT NOT ALL OF THE ADDED LANGUAGE
FROM 2022, DO I HAVE ET ALL CORRECT. MAYUR SAXENA: YOU GOT IT.
JUSTICE PATTERSON: OKAY. MAYUR SAXENA: YOU GOIT IT. MAT PAT SO TELL UNDER
THE CIRCUMSTANCES WHAT HAPPENED HERE. MAYUR SAXENA: SO IN ORDER TO GT THE
PULL COULDN'T FEKS WE HAVE TO GO BARK A LITTLE BIT. THIS SECTION 3 B, THE LANGUAGE THAT
WE'VE BEEN FOCUSING ON, NOT WITH STACHDING ANY PROVISION OF THE BROKERS ACT, THAT'S WHAT
THAT STAFT TOWER REFRTS IS TO OR ANY OTHER LAW TO THE CONTRARY, A BUSINESS AFFILIATION
BETWEEN A BROKER OR A SALESPERSON MAY BE THAT OF AN EMPLOYMENT RELATIONSHIP OR AN INDEPENDENT
CONTRACTOR. WHY IS THIS LANGUAGE IN THE STATUTE? THERE'S A MISSING PUZZLE
PIECE THAT WE HAVEN'T TALKED ABOUT YET AND THAT'S THIS COURT'S DECISION IN REMAX IN 2000.
MAT PAT I KNEW WE WERE AT FAULT. MAYUR SAXENA: IT'S IMPORTANT URGE BECAUSE
REMAX ANALYZED THE CONTEXT OF THE BROKERS ACT AS IT EXIST THE THEN IN DETAIL, NOT IN THE
CONTEXT OF THE WPL AND THE ABC TEST BUT IN CONTEXT OF THE WORKERS XEN SAKS ACT AND ITS
RIGHT TO CONTROL TEST. THE COURT APPLY THE TEST AND HELD THE ROLL ESTATE SALESPERSON
IN THAT CASE WAS AN EMPLOYEE. BUT IN DICTA WHAT THE COURT CALLED COMMENTS, THE COURT
AM LIEFD THE TREE 2018 VERSE OF THE BROKERS ACT AND ITS REPEATED REFERENCES TO REAL ESTATE
SALESPERSONS AS "EMPLOYEES OF THE BROKER" AND IT COULDN'T CLOUTD AND IT CONCLUDE THAT THE
THE PROCEDURE KER ACT CROWE YATS A "LEGISLATIVELY MANDATED EMPLOYER, EMPLOYEE RELATIONSHIP.
" IT SAID THAT WITHOUT QUALIFICATION. SO THIS EXPLAINS WHY SECOND 3 B EXISTS.
THE LAW BEFORE THE 2018 AMENDMENT, IF ONE WERE TO TAKE ROY MAX AT ITS FACE VALUE, WAS
THAT REAL ESTATE SALESPERSONS ARE LEGISLATIVELY MANDATED TO BE EMPLOYEES BECAUSE OF THE
WAY THE BROKERS ACT RED. SO WHAT DID THE 2018 AMENDMENT DO, AS JUSTICE WAINER
APTER OBSERVED, TO ADD EMPLOYEES EEMPLOYED OR CONTRACTED WITH AND IT ADDED THIS TEXT THAT
SAID THAT YOU MAY BE AN EN PENT CONTRACTOR. ALL THEY WERE TROYING TO DO WAS WIPE THE
SLATE CLEAN AFTER REMAX. THEY WERE JUST TRYING TO SAY IT'S NOT THAT YOU SHALL BE AN
EMPLOYEE, YOU MAY STILL BE AN INDEPENDENT CONTRACTOR. WHAT FOR PURPOSE, THE STATUTE
DOESN'T SAY, IT STATUTE DOESN'T SAY FOR PURPOSES OF THE ABC TEST OR THE WPL. THE STATUTE
SDVEN SAY FOFR PURPOSES OF THE L A D. IT JUFLT SAYS FOR SOME PURPOSE. SO
EVEN IF. JUSTICE PATTERSON: JUST PAUSE YOU FOR ONE SECOND. IT IS NOT UNHEARD
OF THAT THE LEGISLATURE WILL SPECIFICALLY SAY WE'RE DEALING, WE'RE SPOPDING TO THE NEW
JERSEY SUPREME COURT'S DECISION IN X, WITH WHICH THEY DON'T AGREE, AND EXPLAIN TO US THAT
WE'RE DOING THIS IN ORDER TO ADDRESS A DECISION BY THE COURT. AND SOMETIMES WE EVEN IN
OUR CASES MENTION TO THE LEGISLATURE THAT THEY CAN MAKE A COMMENT ALONG THOSE LINES.
THAT'S NOT HERE. THAT'S, THIS IS NOT GUB TO RECALL LAPG WIMP FRPGS THIS IS
LEGISLATIVE LANGUAGE. MAYUR SAXENA: THAT'S CORRECT. CHIEF JUSTICE
RABNER: WHERE IS THE LANGUAGE FOR SOME PURPOSE THAT YOU EMPHASIZED ACTUALLY IN THE STATUTE,
IS IT? MAYUR SAXENA: IT'S NOT. JUSTICE WAINER APTER: WOULDN'T
RYE MAX CUT GEPTS YOUR ARGUE. BECAUSE AETS INTERPRETING THE BROKERS ACT TO DEFINE A REAL
ESTATE SALESPERSON AS AN INDEPENDENT CONTRACTOR OR AN EMPLOYEE NOT ONLY FOR PURPOSES OF THE
BROKERS ACT BUT FOR PURPOSES OF HOTTER STATUTES AS WELL? MAYUR SAXENA:
WELL, WE DON'T KNOW FRP THE COURT IN REMAX DIDN'T SAY. IT DIDN'T SAY FOR ALL PURPOSES.
IT JUST SAID THAT TWAUD A LOIF TIFF LEGISLATIVE MANDATE. APARTMENT AP SID IT WAS FOR
PURPOSES OF THE WORKERS XEVEN SAKS AK, NOT POUR IF YOUR HONOR PLEASE OF THE BROKERS ACT
THEY SO TOOK THIS LANGUAGE IN THE BROKERS ACT AND THEY SAID WE'RE GOING TO PAY ATOECH
FOR THAT FOR PURPOSES OF THE WORK KIRS XOEN SAGS ACT, BUT NOW WORRY SAYING THE LANGUAGE
IN THE BROKERS ACT ONLY EVER APPLIES TO THE BRO KERTS ACT DOESN'T APPLY TO ANYTHING ELSE.
MAYUR SAXENA: THAT'S NOT THE DEP'S PITHS, IT'S NOT FOR PURPOSES OF THE BROEP
KER ACT. IT JUST MEEVENS THAT YOU MAY BE AN INDEPENDENT CONTRACTOR IF YOU QUALIFY UNDER
THE RELEVANT TEST. JUSTICE WAINER APTER: IT DOESN'T SAY YOU QUALM IF I
UNDER THE REL VEPT TEST IT SAYS IF YOU SIEVEN A CONTRACT THAT SAYS YOU ARE. BECAUSE WE'RE
NOT OPENLY TALKING ABOUT B, I THINK WEFRP STILL YOU CAN TALKING ABOUT WHY ENACTED IN 2018,
RIGHT, SO A SPECIFICALLY TALKS ABOUT HOW YOU HAVE TO HAVE THIS WRIP AGREEMENT AND THE WRITTEN AGREEMENT SAYS ALL THESE DIFFERENT THINGS AND THEN B HAS THE NOTWITHSTANDING VEN
WRITTEN GROEMENT. SO IT DOESN'T SAY, YOU KNOW, YOU CAN BE FOR IF YOUR HONOR PLEASE OF THE
ABC TEST OR YOU CAN BE FOR SOME OTHER PURT, IT SETS YOU CAN BE IF YOU SAY YOU ARE IN A
WRITTEN GROEMENT. AND THEVEN LATER THEY SAY AND COURT MUST EP FORCE THAT WRIT TROE HACK
TIFL. MAYUR SAXENA: SO, YOUR HONOR, I THINK AGAIN IF WE WERE TO READ THAT
TYPE OF LANGUAGE TO DISPLACE NOT JUST THE W B L BUT ALL OF THE OTHER STATUTES THAT WE'RE
TALKING ABOUT AS APPLIED TO REAL ESTATE SALESPERSONS, YOU WOULD WANT MORE CLARITY
THAN THAT. YOU WOULD WANT THE TYPE OF SPECIFICITY THAT WE SEE IN THE 2022 AMENDMENT.
JUSTICE PATTERSON: BUT THE COUNTER TO THAT IF WE WERE TO INTERPRET THE STATUTE
AS YOU SAY WE SHOULD, INSERTING LANGUAGE THAT QUALIFIES THE IMPACT OF WHAT, OF THE LANG
WIFRNGS I'M NOT WORRIED ABOUT THE LANGUAGE THAT DISAPPEAR, I'M WORRIED BOUR THE LANGUAGE
THAT SURVIVED, YOU'RE ASKING US TO PUT IN KWAL KWAGSS AND LIMITATIONS ON LANGUAGE THE
LEGISLATURE PASSED AND WHICH MADE IT BY GOVERNOR'S CONDITIONAL VOTE DHOE IS VERY
SIGNAL KAVENT WHEN YOU'RE DOING A STATUTORY INTERPRETATION VEN THERE'S A CONDITIONALLY
VETO, IT SURVIVE THE INQUIRY AND THE SCRUTINY OF A CONDITIONAL VETO SHTHS WE WOULD THEN
BE ALTERING THE LEGISLATIVE LANGUAGE WHICH OF COURSE UNDER SEPARATION OF POWERS WE'RE
NOT SUPPOSED TO BE DOING. MAYUR SAXENA: WE'RE NOT ASKING THE DORT DO THAT
AND HIGH ACTUALLY WANT TO DUFRN TO THAT SURVIVING LANGUAGE BECAUSE THAT LANGUAGE IS ALSO
QUITE IMPORTANT. SO I'M STILL HERE ON A G A PAGE 2. AND I JUST WOULD LOIK TO DRAW YOUR
HONOR'S ATECHGS TO A FEW THINGS. AT THE VERY TOP OF A G A-2, WE SEE THAT THE GOVERNOR
WENT TO THE TROUBLE OF REVISING THE TITLE OF THIS ACT. WHICH IS SEARCH WARRANT UNUSUAL
TO BE EXTRA CLEAR THLT ACT WAS NOT AMENDING THE SUBSTANCE OF BROER OBROKERS ABLTH BUT
WAS SPECIFICALLY AMENDING ITS EFFECTIVE DATE. THEN EVERYTHING -- JUSTICE
PATTERSON: BEFORE YOU LEAVE THAT, HOW DOES THAT, IF THE GOVERNOR IS TAKING THE RED PEN
AS THEY ALWAYS ALL CALL THE WITH THE VOTE TOE THAT A STATUTE AND ADDING NOT AMENDING P
L TWOJ OEN BUT AMENDING THE EFFECTIVE DATE OF, DOESN'T THAT SOUND A LITTLE NARROWER THAN
IT WOULD BE WITHOUT THE LANGUAGE, THE RED PEN IS NOT DOING THAT MUCH. MAYUR
SAXENA: SO THE RED PEN IS CLARIFYING WE'RE TALKING BOUF SPECIFICALLY AMENDING THE
EFFECTIVE DATE OF THE STATUTE. THAT'S IMPORTANT BECAUSE EVERYTHING FROM THE INITIAL VERTHS
OF THE BILL THAT ACHLD THE THE SUBSTANTIVE SECOND, SECOND TLIE IS STRUCK. IT'S IN THOSE
BOLD BRACKETS, RIGHT? VEN THEN WE FLIP THE PAGE OVER TO A G A-3 AND WE GET TO THE THEKS
IS ACTUALLY ADDED IN SECTION 29. AND. JUSTICE PATTERSON: SEK 2, OH, 29
I SEE, OOM SORRY. MAYUR SAXENA: SECTION 29. MAT PAT YEAH SHTH OKAY. PLAY
MAY SO WEICHERT MAKES MUCH OF THE WORD ENFORCE THAT APPEARS IN THIS SECTION BUT IT IS
NOT PART OF THE SUBSTANTIVE LAW. THE EFKT TIFF DATE PROVISION INCLUDING THAT WORD ENFORCE
DOESN'T APPEAR ANYWHERE IN THE NEW JERSEY STATUTES ANNOTATED AND IT ONLY ACH PEERS IN
THE CHAPTER LAW UNDERSTANDING THAT THAT MEEVENS IT'S STEM LAW, THAT WOULD BE AN EXTREMELY
ODD WAY OF WRITING ENFORCE INTO THE SUBSTANTIVE PROVISIONS OF THE LAW. JUSTICE
PATTERSON: IS THAT LEGISLATIVE LANG WICHL OR GUB IN A TO RECALL LANGUAGE, ENFORCE THAT'S
IN SECTION 29? MAYUR SAXENA: THAT IS LEGISLATIVE LANGUAGE. JUSTICE
WAINER APTER: AS ENACTED CORRECT. MAYUR SAXENA: THAT'S CORRECT, BUT THE
OTHER THEPG HERE IS THAT READING THE TEXT THAT WAY EVEN FORCE TO HAVE A SUBSTANTIVE EFFECT
ON THE STOCHT IT WOULD LEAVE US WHIZ AN ABSURD RESULT. JUSTICE PATTERSON:
DON'T WE READ CHAPTER LAW, AT THAT CLEATS' RETROACTIVITY, WE'RE LOOKING AT EFFECTIVE
TOMORROW OR WHATEVER IT MIGHT BE BUT WE READ THE CHAPTER LAWS ALONG WITH THE FINAL LANGUAGE
OF THE STATUTE. MAY HAVE MAY ABSOLUTELY, YOUR HONOR. WHAT I'M SAYING HERE IS THAT THE
LANGUAGE SAYS SEK 3 OF THIS ANLT A ACT SHALL TAKE MEELD AND SHALL APPLY RETROACTIVELY
TO ENFORCE, BUT NOT CHANGE ANY WRITTEN AGREEMENT. SO OF THAT LEAVES US --
JUSTICE PATTERSON: DIDN'T THAT SIMPLY MEAN P IF THERE WAS NO WRITTEN
AGREEMENT TO BE AN INDEPENDENT CONTRACTOR, WE'RE NOT CREATING LANGUAGE THAT WASN'T IN
THAT CONTRACT. WE'RE ENFORCING THE CONTRACTS THAT SAY THAT BUT WORRY NOT CHANGING ANYBODY'S
CONTRACT. P. MAYUR SAXENA: RIGHT, BUT WHAT THAT SAYS, YOUR HONOR, IS THAT
THE STATUTE APPLIES RETROACTIVELY TO ENFORCE THOSE CONTRACTS. DOESN'T SAY ET TO MAKE
THEIR DESIGNATION DISPOSITIVE, RIGHT. AND IT LEAVES US WITH THE ABSURD RESULT IF WE HAVE
A 2020 CONTRACT, THAT LANGUAGE WOULDN'T APPLY TO IT. RIGHT, IT SAYS THAT THE STATUTE
SHALL APPLY RETROACTIVELY TO ENFORCE. IT'S THE ONLY TIME EVEN FORCE APPEARS IN THE LAW.
JUSTICE WAINER APTER: WAIT I'M SORRY SAY THAT AGAIN FAETS A 2020 CONTRACT,
WHY AND THE 2020 CONTRACT SAYS THE PERSON IS AN INDEPENDENTS CONTRACTOR, WHY WOULD THE
NOT BE EN TORTSED. MAYUR SAXENA: BECAUSE THIS PROVISION TALKS, IT SAYS THAT
SECTION 3 SHAM APPLY RETROACTIVELY TO ENFORCE, IT'S TALKING ABOUT RETRO AK TIF HAVE THE
OPENLY AND IT'S IN THE RETROACTIVITY. JUSTICE PIERRE-LOUIS: THE AGREEMENTS
THAT WERE MADE PRIOR TO 2018. P PRIOR TO 2021. MAYUR SAXENA: ARE YOU SAYING.
JUSTICE PIERRE-LOUIS: THERE'S A GAB BECAUSE THE AMENDMENT HERE, THERE'S
A GAP BETWEEN THE ENFORCEABILITY OF AGREEMENTS BETWEEN THE ORIGINAL AMENDMENTS AND THE
FURTHER AMEND THES? MAYUR SAXENA: LET'S SAY A CONTRACT THEVEN JUST TO HAVE
A CLEARER EXAMPLE, THREATS' LET'S SAY A CONTRACT ITS MADE NEXT YEAR, RIGHT, THERE'S NO
LANGUAGE IN THE BROKERS ACT THAT TALKS ABOUT EVEN FORCING OUTSIDE OF THIS RETROACTIVITY
PROVISION. JUSTICE PATTERSON: WE KNOW THE WHOLE STATUTE WAS ABOUT ENFORCING.
JUSTICE SOLOMON: THAT'S HOWEVER RESTATUTE WORK, YOU PASS IT AND THEN YOU
ENFORCE IT. YOU DON'T ENFORCE THE BEFORE YOU PASS IT THLS THERE'S A RETROACTIVITY
PROVISION AND ALL THIS SAYS IS IF THE CONTRACT SAID BEFORE THIS DAY INDEPENDENT CONTRACTOR,
THAT CONTROLS. IF THE CONTRACT SAID BEFORE THIS DAY EMPLOYEE, THAT CONTROLS. THAT'S
ALL IT SAYS. THE HE A LIKE EVERY OTHER CONTRACT, THERE'S NO SPECIAL MAGIC WORDING TO
THIS. MAY HAVE MAY THAT'S POFRNTS, YOUR HONOR IT DOESN'T SAY THE HE IT CONTROLS, IT SAYS
YOU MAY BE AN INDEPENDENT CONTRACTOR. ALL THESE STATUTES. JUSTICE PIERRE-LOUIS:
YOU ENTER THE AGREEMENT AGREEING THAT THE ROPES SHI WOULD BE THAT OF INPINT CONTRACTOR,
THEREFORE THAT'S THE AGREEMENT THAT WOULD BE ENFORCE THE. YOU'RE CORRECT, YOU MAY BE,
THE RELATIONSHIP MAY BE EMPLOYMENT REELTS SHIP OR IT MAY BE THAT OF INDEPENDENT CONTRACTOR.
BUT IF THE AGREEMENT IS SIGNED SOY THAT THE RELATIONSHIP IS THAT OF INDEPENDENT
CONTRACTOR, THAT'S THE AGREEMENT THAT WILL BE EVEN FORTSED. MAY MI I'LL RETURN TO THE
TEXT BECAUSE THE TEXT DOESN'T ACTUALLY SAY THAT. IF WE LOOK, AT THE NOT WITH STANDING
LANGUAGE, NOTWITHSTANDING ANY PROVISION OF THE BROKERS ACT, AGAIN, THEY'RE REFERRING TO THE
BROKER HAKT TO DEAL SPECIFICALLY WITH ROW MAX HERE. JUSTICE PATTERSON:
WHERE ARE YOU. JUSTICE PIERRE-LOUIS: 3.2(B). MUCH.
MAYUR SAXENA: NOTWITHSTANDING ANY PROVISION OF THE BROKERS ACT OR ANY OTHER LAW TO THE
CONTRARY, OR REGULATION. JUSTICE PIERRE-LOUIS: THERE'S A LOT MORE THERE.
MAYUR SAXENA: RIGHT. CHIEF JUSTICE RABNER: CAN I TRCHT YOU
FOR JUST A SEK, I PRIESHT YOU HAVE A LOT OF POINTS THAT YOU PREPARED TO MAKE, WE'RE AT
25 MINUTES. YOU HAVE ANOTHER 5 AND I HAD LIKE TO YOU FOCUS ON WHAT'S PORN EVEN MOVING
AWAY FROM YOUR PREPARED THOUGHTS. MAYUR SAXENA: I WANT TO MOF AWAY FROM THE
BROKERS ACT BECAUSE THERE ARE OTHER ISSUES IN THIS CASE THAT ARE REALLY IMPORTANT TO THE
DEPARTMENT THAT. CHIEF JUSTICE RABNER: TICK THEM OFF, PICK BIG PICTURE FOR
US AND WE'LL EBBS MROR ANY OF THEM THAT WE NEED TO. MAYUR SAXENA: ALL RIGHT,
YOU WERE. SOY THE FIRST IS THAT WE AGREE WITH PLAINTIFFS THAT THE APPELLATE DIVISION'S
CHARACTERIZATION OF HARGROVE WAS NOT CORRECT AND THIS COURT SHOULD AVOID CHARACTERIZING
THAT DECISION IN BAY THAT'S LIMITED TO ITS FACTS, THE SRT FIED QUESTION IN HARGROVE AS
WELL AS THE HOLDING IN HARGROVE WERE BOTH UNQUALIFIED AND THERE'S NO REASON TO PUT ANY
LICHLTS ON THAT DECISION. THE SECOND IS THAT WE HAVEN'T TALKED AT ALL ABOUT
WEICHERT TS OTHER DEFENSE TO THE WPL CLAIM HERE WHICH IS THE UNEMPLOYMENT COMPENSATION
LAW EXEMPTIONS. AND THISH HASN'T BEEN BRIEFED BY ANY OTHER PARTY BUT WE WOULD RESPECTFULLY
SUBMIT THAT IT IS A STILL A LIVE ISSUE, IT WAS STILL THE SUBJECT OF THE APPELLATE DIVISION'S
DECISION VEN THE COURT SHOULD STILL PASS ON THAT ISSUE AND HOLD CONSISTENTLY WITH WELL
ESTABLISHED LAW AND AS EXPLAINED IN THE GOVERNOR'S CONDITIONAL VETO THAT THERE IS NO
BASIS IN THE TEXT, HISTORY OR PURPOSE OF THE UCL OR THE WFRMENT P L TO IMPORT UCL EXEMPTIONS
INTO THE WPL. AND THEN LASTLY, I'LL NOTE, YOUR HONOR, THAT, YOU KNOW, WEICHERT
HAS ARGUED #9D # DIFFER RENTS TO THE DEPARTMENT IS NOT WARRENED HERE, THAT THE JUST SIMPLY
WRONG. DEFRTS RENS IS WASH REVENED FOR THE SAME REASONS THAT IT WAS GIVEN IN HARGROVE,
FOR THE SAME REASON IT WAS GIVER IN EAST BAY DRYWALL, THE DEPARTMENT IS NOT AN EXPERT
ON REAL ESTATE BROKERAGE, IT ALSO WASN'T AN EXPERT ON DRYWALL OR TRUCKING LICENSURE, BUT
DEFERENCE IS NONETHELESS EXTENDED BECAUSE THE DEPARTMENT OF LABOR IS A GENERAL REGULATOR.
JUSTICE PATTERSON: I HAVE A QUESTION OVEN THAT, WHAT DEPARTMENT OFFICER
DIVISION OF A DEPARTMENT DOES OVERSEE REAL ESTATE, IS IT D.C. A? OR IS IT THE
REGULATORIES, MAY HAVE MAY UNDER DOI BEEB THE REAL ESTATE COMMISSION. JUSTICE
PATTERSON: REGULATORY COMMISSION WHICH OVERSEES RAELT STORE, THAT'S CORRECT, YOUR HONOR.
JUSTICE PATTERSON: THOSE WOULD BE THE WUNDZ WITH THE EXPERIENCE IN REAL ESTATE.
MAYUR SAXENA: BUT AT BOTTOM THAT IS A WPL CLAIM IN THIS CASE, AND, YOU KNOW,
FOR THAT REASON DEFERENCE TO THE DEPARTMENT CONTINUES TO BE WARRANTED, BOENL AS TO THE
WPL AND AS TO THE A TECHT TO IMPORT SECTIONS OF THE UCL. JUSTICE WAINER APTER:
YOU START THE ROOT RIGHT AT THE GIPING SAYING THIS WOULD BE THE ONLY EMPLOYEE THAT WOULD BE
EXEMPT FROM THE WPL AND THEN WE CUT YOU OFF WITH A BUNCH OF QUESTIONING, DID YOU HAVE
ANY OTHER BIG PICTURE CONSIDERATIONS THAT YOU WANTED US TO BE AWARE OF THAT WE PREVENTED
YOU FROM REACHING? MAYUR SAXENA: YES, URGE. I WOULD SAY AGAIN THAT THE
IMPACT OF THIS CASE IS NOT LIMITED TO REAL ESTATE SALES PEFRNS, IT'S NOT LIMITED TO THE
WPL. I URGE THE COURT TO TAKE A CAREFUL LOOK AT THE LANGUAGE OF THE STATUTE. IF WE HOLE
THIS TYPE OF STATUTE TO PERMIT PARTIES TO CONTRACT AROUND WELL ESTABLISHED STATUTORY
POLICIES, WHEN THEY'RE NOT NEERL AS CLEAR OR EXPLICIT NOR DO THEY EVEN INCLUDE ANY
STATUTORY CROSS-REFERENCES. JUSTICE PATTERSON: RAILROAD VERY CLEAR LANGUAGE
THAT ASPECT OF THE CONDITION NIL VOTE TOE IS QUITE CLEAR. WHY DOESN'T THAT TAKE CARE
OF THAT ISSUE FOR YOU? MAYUR SAXENA: I SAY IT SDVEN YOUR HONOR BECAUSE
THINK ABOUT THE FROM THE PERSPECTIVE FROM THE DEPARTMENT OF LABOR ATTEMPTING TO ADMINISTER
THIS STATUTE. IS THE DEPARTMENT OF LABOR TO CANVAS THE LICENSING STATUTES FROM VARIOUS
INDUSTRIES TO SEE THAT EEVEN WHERE THERE'S NO CROSS-REFERENCE, WEAN WHEN THERE'S NO
SPECIFIC REFERENCE TO DISPLACING THE WPL OR THE ABC TEST, THAT SOME STATUTES SHOULD BE
COULDN'T STROUD TO LIMIT ITS ABILITY TO EVEN FOR IT, IT WOULD CREATE T AN ADMINISTER ABILITY
NIGHTMARE FOR THE THE DEPARTMENT. SO I REALLY URGE YOUR HONOR'S TO SET A HIGH BAR OF THE
LEGISLATIVE SPECIFICITY FOR ANY STATUTE THAT'S GOING TO DISPLACE THESE TYPES OF STATUTORY
REJEEMS. JUSTICE SOLOMON: JUST ONE QUESTION. WOULDN'T YOUR POSITION BE
A LOT STRONGER AND I THINK YOU SORT OF JUST TOUCHED ON IT, IF YOUR CONTENTION WAS THAT,
YES, THE CONTRACT CONTROLS UNDER 3.2. BUT JUST BECAUSE YOU CALL IT SOMETHING IN A CONTRACT,
INDEPENDENT CONTRACTOR, THE CHARACTERISTIC THE ARE THAT OF SOMETHING ELSE, IT WOULDN'T
BE APPROPRIATE TO LET THAT PASS AND DISQUALIFY THE W THE P L OR MAKE THE WPL NOT APPLY.
MAYUR SAXENA: YOU NAILED IT, URGE, I NEED TO LEAVE, I NEED TO VACATE THE
PODIUM BUT THIS IS HUGELY IMPORTANT, WE CAN NOL LET CONTRACTUAL LABEL THE TRUMP REALITY.
IF THE REALITY OF A RELATIONSHIP IS SOMETHING THAT HAS BEEN TRADITIONALLY RECOGNIZED,
AS AN EMPLOYMENT RELATIONSHIP, CREATES THE TYPE OF DEPENDENCY THAT IS #2I7 KUFL A EMPLOYMENT
REELTS SHIP, SDP NOT ALLOW THE RIVEN PENS THAT IS AT THAT CLEE THAT AN INDEPENDENT CONTRACT,
THE CASE ARE CLIER AK KRAUPS THE BOARD THE STATUTES ARE CLEAR WE DO JT JUST LOOK AT THE
KRKT PULL LABEL THE WE LOCK AT REALITY. JUSTICE PATTERSON: ONE LAST QUESTION,
I'M SORRY CHIEF, IF WE ARE TO, IF WE CONCLUDE THAT THE ABC TEST WHICH YOU AND ADJOINING
COUNSEL ARE CONTENDING APPLIES CANNOT BE MET WITHOUT VIOLATING ANOTHER STATUTE ENACTED
IN NEW JERSEY, THE BROKERS ACT AND IF WE ARE TO CONCLUDE AS A TRACK CAN YOU TELL MATTER
AS ILLUSTRATED BY THE AMICUS ARGUMENT COMPLIANCE ON 26 PAY DAYS A YEAR CANNOT BE MET AGAIN
UNDER THE COMPENSATION FORM THAT EXISTS HERE, WHAT ARE DO WE MAKE OF THAT, WHICH WE JUST
SAY ONE STAFT TRUDGES THE HOTTER BECAUSE IT'S WHAT, MORE RECENT OR WHAT?
MAYUR SAXENA: THERE ARE TWO AVENSS. ONE IS THAT THE PRN PULLS OF STATUTORY CONSTRUCTION, WE
TROY TO HARMONIZE STATUTE AND NOT CREATE CONFLICT. JUSTICE PATTERSON:
VERY IMPORTANT, YES. MAYUR SAXENA: SO AGAIN, TO US THE MOST SENSIBLE READ
ING OF THAT BROKERS ACT LANGUAGE IS TO SAY THAT IF A REAL ESTATE, THAT A REAL ESTATE SALESPERSON
MAY BE AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR IF THE LAW IN ONE GIVEN DOMAIN SAYS THAT
THEY ARE AN EMPLOYEE AND ARE NOT GOING TO BE AN INDEPENDENT CONTRACTOR RS AND NEVER UNDER
ANY SISHSS WOULD THEY BE AN INDEPENDENT CONTRACTOR, THAT LAW ON ITS OWN DOESN'T ROW
88 A CONFLICT, WE SHOULDN'T READ TO IT CROWE 88 A CONFLICT WITH THE STATUTE BECAUSE A REAL
ESTATE SALESPERSON DO STILL BE AN INDEPENDENT CONTRACTOR UNDER ANOTHER LAW. THE ABC TEST
IS THE MOST STRICKEN JENTS EMPLOYEE CLASSIFICATION TEST FOR GOOD RRNGS IT
PROTECTS THE FOUNDATIONAL PROTECTIONS AFFORDED BY THE WAGE PAYMENT LAW. SO IF ANOTHER
CLASSIFICATION TEST COULD BE MET BY THAT INDEPENDENT CONTRACTOR IN SOME OTHER DOMAIN,
IT'S JUST NOT A CONTRARY LAW AND WE COULDN'T CONSIDER AS SUCH. MR.
BIRMINGHAM, JR.: GOOD AFTERNOON, YOUR HONORS, JOHN BIFRM APPEARING ON BEHALF OF WEICHERT.
THANK YOU FOR THE OPPORTUNITY TO ARGUE BEFORE YOU TODAY. I WOULD LIKE TO RESERVE FIVE
MEANT FOR REBUTTAL AS AN APPELLANT AN A RESPONDENT IN THIS CASE SO I WOULD LIKE TO
RESERVE FIVE MEANT FOR REBUTTAL SFLFRMENTS THE SAME RULES AS FOR MR. SATTIRAJU, BIM BIRM
THANK YOU. THERE ARE REALLY TWO QUESTIONS INVOLVED IN THIS CASE AN THE FIRST
QUESTION IS DOES THE ABC TEST APPLY TO DETERMINE WHETHER REAL ESTATE SALESPEOPLE ARE
INDEPENDENT CONTRACTORS OR EMPLOYEES UN THE WPL. THE APPELLATE DIVISION ANSWERED THIS
QUESTION CORRECTLY AN THE ANSWER IS NO. THE SECOND QUESTION IS: DOES THE BROKER'S
ACT AND ITS AMENDMENTS ALLOW THE PARTIES TO DECIDE WHETHER REAL ESTATE SALESPEOPLE ARE
INDEPENDENT CONTRACTORS OR EMPLOYEES FOR THE PURPOSES OF THE WPL AN SHOULD THE COURT
ENFORCE THE AGREEMENT? THE APPELLATE KWIGS GOT THAT QUESTION WRONG AN THE
ANSWER TO THAT QUESTION IS YES. THERE ARE THREE OVERRIDING CONCEPTS THAT I
WOULD LIKE THE COURT TO THINK ABOUT AS IT ANSWERS THESE QUESTIONS. THE FERS ONE IS REALLY
SECH MR. THE LEGISLATURE FWETS TO MAKE THE LAW; THAT'S THE FIRST ONE. THE
SECOND ONE IS THE LEGISLATIVE EVEN TENT HAS BEEN EXPRESSED ON MULTIPLE OCCASIONS HERE,
MOST IMPORTANTLY WITH THE CLEAR AN PLAIN LANGUAGE OF THE AMENDMENTS, BUT ALL OTHER INDICATIONS
OF LEGISLATIVE EVEN TENT ALSO APPLY HERE TO SUPPORT THAT THE INDEPENDENT CONTRACTOR OR
EMPLOYEE DECEMBER SEG NAGS IN THE CONTRACT IS THE TEST AND IT CAN'T BE THE ABC TEST.
THE THIRD OVERRIDING CONCEPT THAT I WANT THE COURT TO CONSIDER IS THE UNIQUE
HISTORY, CULTURE AND CHARACTERISTICS OF THE REAL ESTATE INDUSTRY. IT ALL SUPPORTS OUR
INTERPRETATION AN THE LIMITED RELIEF REQUESTED. I REALLY WANT TO MAKE THIS CLEAR TO THE
COURT BECAUSE MR. KENNEDY AND THE DEPARTMENT OF LABOR BORE'S PRESENTATION AND THEIR BRIEFS
KIND OF DESCRIBE A PARADE OF HORRIBLES. WE ARE BASICALLY SUPPORTING THE PRACTICAL
STATUS QUO IN THE INDUSTRY, OKAY, WHERE THE PARTIES GET TO DECIDE AND MOST OF THE TIME
THE PARTIES DECIDE IT IS AN INDEPENDENT CONTRACTOR RELATIONSHIP. WE'RE
TALKING ABOUT ONE INDUSTRY, THE REAL ESTATE INDUSTRY AND ONE POSITION WITHIN THAT
INDUSTRY SO I REJECT THE DEPARTMENT OF LABOR'S ARGUMENT THAT THIS EXTEND BEYOND THE REAL
ESTATE INDUSTRY. IT DOESN'T. IT IS JUST THE REAL ESTATE INDUSTRY AND IT JUST ONE
POSITION, THE REAL ESTATE SALESPERSON WITHIN THAT INDUSTRY. I WILL TRAES THE
FERS TWO CONCEPTS FIRST. THE LEGISLATURE. IF THE COURT USES IT'S TYPICAL STATUTORY
INTERPRETATION PRINCIPLES, IF THE COURT ANSWERS YES TO THEEGS QUESTIONS, THEN THE ANSWERS
TO THE QUESTIONS PRESENTED IN THIS KAES IS VERY CLEAR. THE FIRST ONE IS IS
IT THE LEGISLATURE'S JOB TO MAKE THE LAW? IN THIS CASE THE LEGISLATURE HAS
TWICE INTERVENED TO MAKE IT CRYSTAL CLEAR THAT THE RELATIONSHIP CAN BE AN INDEPENDENT
CONTRACTOR RELATIONSHIP OR AN EMPLOYEE RELATIONSHIP, DESPITE, DESPITE, AS THE
JUSTICES POENTD OUT, DESPITE THE REGULATORY REQUIREMENTS OF THE BROKER'S ACT WHICH WOULD
MAKE IT IMPOSSIBLE FOR SOMEBODY TO BE AN EMPLOYEE IF THE ABC TEST WAS APPLIED. THE
FIRST TIME THE LEGISLATURE DID THIS WAS IN 2018 AN THE COURT WAS CORRECT TO LOOK AT THE
ACTUAL LANGUAGE. IF YOU LOOK AT WHAT THE COURT DID IN 2018 AN WHAT THE COURT
DID BASICALLY, THE QUESTION ABOUT WHAT AGENCY IS RESPONSIBLE UN DEPARTMENT OF LABOR BORE
THE ATTORNEY MENTIONED IT IS THE REAL ESTATE COMMISSION. WELL, THE REAL ESTATE COMMISSION
IN 2017 CHANGED THE REGULATIONS TO MAKE IT CRYSTAL CLEAR THAT A REAL ESTATE SALESPERSON
COULD BE AN INDEPENDENT CONTRACTOR AN THE AGREEMENT GOVERNED AND THEN THE STATUTORY
AMENDMENT WAS CHANGED AFTER THEN IN 2018. SO, THE REAL ESTATE COMMISSION WAS
ON THE FOREFRONT V MAKING THIS CHANGE BEFORE THE LEGISLATURE MADE THE CHANGE. IF
YOU LOOK AT WHAT THE LEGISLATURE DID IN 2018, IF YOU LOOK AT THE LANGUAGE, IT SAYS
NOTWITHSTANDING ANY PROVISION OF THE BROKERS ACT OR ANY OTHER LAW, RULE OR REGULATION.
SO, MR. KENNEDY'S ATTORNEY IS INCORRECT WHEN HE SAYS THAT THE 2018
AMENDMENT WAS ONLY ABOUT THE BROKER'S ACT. IT SAYS NOTWITHSTANDING ANY PROVISION OF THE
BROKER'S ACT OR ANY OTHER LAW, RULE OR REGULATION. SO, THAT
ENCOMPASSED, OF COURSE, MORE THAN THE BROKER AS ACT. THEN THE SECOND PART OF
IT IS BUSINESS AFFILIATION BETWEEN A BROKER AN A SALESPERSON MAY BE THAT OF AN EMPLOYMENT
RELATIONSHIP OR AN INDEPENDENT CONTRACTOR RELATIONSHIP. SO, THERE, THE
LEGISLATURE SAID WHAT BUSINESS AFFILIATION ARE WE TALKING ABOUT? WE'RE TALKING
ABOUT WHETHER OR NOT THE PERSON IS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR AN THEN WHAT
THE LEGISLATURE DID IS IT SAID IN THE NEXT SENTENCE, THE NATURE OF THE BUSINESS
AFFILIATION SHALL BE DEFINED IN THE WRITTEN AGREEMENT BETWEEN THE PARTIES.
SO, THE LEGISLATURE DID NOT SAY IT MAY BE DEFINED IN THE AGREEMENT BETWEEN THE PARTIES.
THE LEGISLATURE DID NOT SAY THAT AS MR. KENNEDY AND THE DEPARTMENT OF LABOR BORE ARE ARGUING
THAT THE CONTRACT IS ONE FACTOR AMONG MANY FACTORS TO DETERMINE WHETHER OR NOT IT'S AN
INDEPENDENT CONTRACTOR OR AN EMPLOYEE, IT SAID IT WILL BE -- IT SHALL BE DEFINED IN THE
WRITTEN AGREEMENT PURSUANT TO THE SECTION SFLFRMENTS THAT IS THE BE ALL AND THE END
ALL? IF THE LABEL INDEPENDENT CONTRACTOR APPEARS IN THE WRITTEN AGREEMENT
BUT IT DOESN'T ACCURATELY REFLECT THE NATURE OF THE RELATIONSHIP, DOES IT CONTROL.
MR. BIRMINGHAM, JR.: I WOULD SAY YES IS THE ANSWER TO THAT QUESTION BUT IT'S NOT JUST
THE 2018 AMENDMENT, BUT ALSO THE 2023, 2022 AMENDMENT AN IT DOUBLED DOWN ON WHAT THE 2018
AMENDMENT SAID. I UNDERSTAND, BY THE WAY THE DEPARTMENT OF LABOR BORE'S POSITION
WITH RESPECT TO BEING CONCERNED ABOUT LABELS. I UNDERSTAND THE APPELLATE DIVISION'S
CONCERN ABOUT LABELS BECAUSE THAT IS HORN BOOK LAW. IT IS HORN BOOK LAW THAT TYPICALLY
THE COURT IS TO LOOK BEYOND LABELS, BUT THAT ONLY APPLIES WHEN THE LEGISLATURE HASN'T
ACTED. AND IN THIS SITUATION, THE LEGISLATURE HAS ACTED TWICE TO SPECIFICALLY SAY IN
THE FIRST INSTANCE, YOUR HONOR, IN 2018, IT SHALL BE DEFINED IN THE WRITTEN FWRAEMENT
AND THEN IN THE SECOND AGREEMENT IN 2022, IT SAYS SHALL APPLY TO ENFORCE, BUT NOT CHANGE
THE WRITTEN AGREEMENT. SO, THE SHORT ANSWER TO YOUR QUESTION IS TIP P I CAN
LY THE COURT SHOULD LOOK BEYOND LABELS, BUT NOT WHEN THE LEGISLATURE SAYS LOOK AT THE
CONTRACT. THE COURT: DOES WEICHERT OFFER SALESPEOPLE THE OPPORTUNITY TO
SERVE AS EMPLOYEES AS OPPOSED TO INDEPENDENT CONTRACTORS? MR. BIRMINGHAM,
JR.: I THINK THAT THEY OFFER -- WELL, I THINK THEY OFFER THE INDEPENDENT CONTRACTOR RELATIONSHIP
AND THE PERSON CAN EITHER ACCEPT OR REJECT THE INDEPENDENT CONTRACTOR RELATIONSHIP.
THE COURT: IF YOU WANT TO BE A SALESPERSON AND WORK FOR WEICHERT, THAT'S IT YOU.
HIRM HIRM THAT'S MY UNDERSTANDING. HOWEVER, YOUR HONOR, THERE ARE COMPANIES, THERE ARE
BROKERS IN THE REAL ESTATE INDUSTRY THAT USE THE EMPLOYMENT MODEL. SO IF SOMEBODY REALLY
WANTED TO BE AN EMPLOYEE INSTEAD OF AN INDEPENDENT CONTRACTOR AN MOST -- YOU KNOW, I
WOULD SAY THE SURVEYS SHOW THAT THE VAST MAJORITY OF THE PEOPLE WANT TO BE INDEPENDENT
CONTRACTORS, NOT EMPLOYEES, BUT IF YOU WANTED TO BE AN EMPLOYEE YOU COULD GO WORK FOR
ONE OF THOSE COMPANIES. JUSTICE PATTERSON: YOU MENTION AN YOU'RE RIGHT,
THE LEGISLATURE ACTED TWICE, AND THEN THEY HAD A CONDITIONAL VETO. MR.
BIRMINGHAM, JR.: YES. JUSTICE PATTERSON: WHAT DO YOU CONTEND THE GOVERNOR
MEANT BECAUSE OBVIOUSLY THAT'S A VERY IMPORTANT PART OF OUR ANALYSIS OF THE STATUTE.
MR. BIRMINGHAM, JR.: YES. I THINK THE GOVERNOR'S VETO HELPS US
INCREDIBLY. I THINK WE ONLY REACH THE GOVERNOR'S VETO YOUR HONOR, AS YOU KNOW IF THE
COURT FINDS THAT THE AMENDMENTS AREN'T CLEAR AN PLAIN. BUT IF WE LOOK AT THE GOVERNOR'S
VETO A COUPLE OF THINGS. IF YOU LOOK AT THE THIRD PARAGRAPH OF THE EXPLANATION
OF THE FWOV NOR'S VETO, OKAY, IT STARTS OUT IN 2018, HE SIGNED THE BOEK BROKER'S ACT.
IN THE NEXT SENTENCE IT SAYS COURTS HAVE INTERPRETED THE BROKERS ACT AS PERCENT
RESPECT I IN EFFECT. THAT'S IMPORTANT BECAUSE WE WOULD HAVE BLINDERS ON IF WE DIDN'T REALIZE
THAT THE LEGISLATURE IN 2022 WAS SPECIFICALLY ADDRESSING THE CASE BEFORE YOU TODAY.
IF YOU LOOK BACK TO THE FIRST KENNEDY DECISION, WHAT THE APPELLATE DIVISION FOUND
WAS THAT THE AMENDMENT, THE 2018 AMENDMENT WAS PROSPECTIVE ONLY. IT STRUGGLED, THE COURT
STRUGGLED IN THE FIRST OPINION BECAUSE WHAT BASICALLY THE COURT SAID IS LISTEN THE ABC
TEST IS INCOMPATIBLE WITH THE 2018 AMENDMENT. IT'S INCOMPATIBLE WITH THE DESIRE TO BE
AN INDEPENDENT CONTRACTOR IN THE REAL ESTATE INDUSTRY, BUT IT'S ONLY PERSPECTIVE AND SO
WE'RE ONLY DEALING WITH IT FOR THREE MONTHS SO WE'RE NOT GOING TO WORRY ABOUT IT.
WHAT THE GOVERNOR IS SAYING HERE THE COURTS HAVE INTERPRETED THE BROKERS ACT AS PROCEED
RESPECTIVE IN PROCEED RESPECTIVE IN EFFECT, WHAT THE LEGISLATURE WAS DOING HERE WAS RESPONDING
TO AN ERRONEOUS COURT DECISION WHICH WAS THE FIRST KENNEDY V WEICHERT CASE AND WHAT THE
COURT -- HOW THE COURT WAS ERRONEOUS -- THE COURT WAS RIGHT IN THAT IT SAID THAT THE ABC
TEST IS INCONSISTENT WITH AN INDEPENDENT CONTRACTOR RELATIONSHIP, BUT THE COURT WAS
WRONG IN SAYING IT WAS PROSPECTIVE ONLY AN THE COURT WAS ALSO WRONG IN SAYING THAT THE
AGREEMENT SHOULD NOT BE EFFECTIVE TO DECIDE THE RELATIONSHIP. SO, JUSTICE,
WALKING YOU THROUGH THE LANGUAGE OF THE GOVERNOR'S VETO, NO. 1 WHERE HE SAYS, COURTS
HAVE INTERPRETED THE BROKERS ACT AS PROSPECTIVE IN EFFECT, THAT'S AN INDICATION THAT THE
LEGISLATURE AND THE GOVERNOR IS RESPONDING DIRECTLY TO THE FIRST KENNEDY V WEICHERT
CASE. JUSTICE PATTERSON: THERE ARE OTHER INDICATIONS OF LIKE IN THE LEGISLATIVE
HISTORY, WERE THERE NOT. MR. BIRMINGHAM, JR.: YES, THERE WERE, ABSOLUTELY.
JUSTICE PATTERSON: THAT IS NOT TOO MUCH OF A CONTESTED POINT AT THAT POINT
IN THAT THE KENNEDY CASE HAD A LOT TO DO WITH THE STAT IS THE TUT. MR. BIRMINGHAM,
JR.: CORRECT. IT'S AN IMPORTANT POINT BECAUSE WHAT THE LEGISLATURE WAS DOING WAS CORRECTING
SOME OF THE MISUNDERSTANDINGS OF THE APPELLATE DIVISION. THERE WERE TWO MISUNDERSTANDINGS,
NO. ONE WAS IT WAS PROSPECTIVE ONLY AND NO. 2 WAS DON'T ENFORCE THE CONTRACT. WHAT
THE LEGISLATURE DID IN 2022 IS IT SAID IT'S RETROACTIVE AND THEN IT ALSO SAID IT SHOULD
BE -- IT ALSO SAID IT SHOULD APPLY RETROACTIVELY TO ENFORCE THE WRITTEN AGREEMENT. L.
SO, IT CORRECTED TWO PARTS OF THE ORIGINAL KENNEDY OPINION.
JUSTICE SOLOMON: CAN I BRING YOU BACK TO THE STATUTE YOU WERE QUOTING FROM.
MR. BIRMINGHAM, JR.: YES. JUSTICE SOLOMON: THE BUSINESS AFFILIATION SSH R
SHALL BE DEFINED IN THE WRITTEN AGREEMENT THAT IS REQUIRED. DOES THAT MEAN,
DEFINED IN THE WRITTEN AGREEMENT, SHALL BE DEFINED IS WHATEVER LABEL YOU ATTACH TO IT
OR DOES IT HAVE TO BE MORE, SUCH AS A DESCRIPTION OF PAYMENT, WHATEVER, SUCH AS A DESCRIPTION?
MR. BIRMINGHAM, JR.: UH-HUH. JUSTICE SOLOMON: I DON'T WANT
TO DISMISS WHAT AMICUS SAID PREVIOUSLY THAT, THE LABELS MAY BE IMPORTANT, BUT THAT'S NOT
EVERYTHING. IF IT IS CALLED INDEPENDENT CONTRACTOR BUT THEY'RE PAID HOURLY FOR 40
HOURS OF WORK A WEEK, IT IS NOT AN INDEPENDENT CONTRACTOR. MR. BIRMINGHAM,
JR.: SO I WOULD SAY, YOUR HONOR, IN THIS VERY LIMITED SITUATION INVOLVING REAL ESTATE
SALESPEOPLE AND IN THE REAL ESTATE INDUSTRY, THE LEGISLATURE MADE A PUBLIC POLICY
DETERMINATION THAT IF THE PARTIES AGREE THAT THE REAL ESTATE SALESPERSON IS AN INDEPENDENT
CONTRACTOR, IF THEY AGREE IN THE AGREEMENT THEN THAT PERSON IS A REAL ESTATE --
JUSTICE SOLOMON: THE TERM CONTROLS EVEN IF, IN PRACTICE, THEY ARE BEING PAID DIFFERENT
LY, THEY ARE WORKING DIFFERENTLY, THEIR HOURS ARE DIFFERENT. IN OTHER WORDS,
IS THERE ANY PART OF THAT RELATIONSHIP -- IT SOUNDS TO ME LIKE YOU'RE SAYING EVERY BROKE
R WORKS UNDER THE SAME TERMS AND CONDITIONS IT SHOULDN'T REALLY BE AN ISSUE, BUT IF IT IS,
IF THAT BROKER TURNS OUT TO BEING PAID HOURLY FOR 46 OR 40 HOURS OF WORK A WEEK, DO WE
STILL CALL THEM AN INDEPENDENT CONTRACTOR? MR. BIRMINGHAM, JR.: I WOULD
SAY, AGAIN, THAT GOES BACK TO THE LABEL ISSUE, RIGHT THAT YOUR HONOR WAS TALKING ABOUT
AND THE LABEL ISSUE THAT EVERYBODY IS CONCERNED ABOUT. I WOULD SAY THIS, IT'S HORN BOOK'S
LAW THAT YOU DON'T JUST APPLY THE LABEL AS THE COURT UNLESS, UNLESS THE LEGISLATURE HAS
SPECIFICALLY SAID ENFORCE THE CONTRACT. JUSTICE SOLOMON: SO YOUR ANSWER
IS EVEN THOUGH IT SAYS DEFINE, IT DOES PT SAY USES THE WORD, BUT DEFINE, THERE IS A
DEFINITION OF THE TERMS AN CONDITIONS OF EMPLOYMENT, NOTWITHSTANDING THAT FACT,
WHATEVER YOU CALL IT, YOU CAN CALL IT COUPLE KWAUT, BUT HE IS AN INDEPENDENT CONTRACTOR.
HE IS AN INDEPENDENT CONTRACTOR BERM BIRM I WOULD SAY. JUSTICE SOLOMON:
DO YOU KNOW THE DEFINITION OF A COUPLE KWAUT? I WILL GET IT TO YOU LATER.
MR. BIRMINGHAM, JR.: I WILL BE VERY CAREFUL WITH THAT QUESTION. I
UNDERSTAND THE APPELLATE DIVISION'S CONCERN ABOUT THE LABELS. I UNDERSTAND YOUR HONOR'S
POEPT BUT HERE IS THE WAY I WOULD MAYBE PHRASE IT BACK TO EVERYBODY HERE. LOOK
AT THE CONVERSE OF THAT. ARE WE SAYING THAT THE LEGISLATURE DOES NOT HAVE
THE POWER TO IN THIS VERY LIMITED CIRCUMSTANCE SAY THAT IS HOW WE'RE GOING TO DETERMINE
WHETHER SOMEONE IS AN INDEPENDENT CONTRACTOR OR AN EMPLOYEE. THE COURT:
I THINK JUSTICE SOLOMON IS ASKING A DIFFERENT QUESTION, YOU START AT THE BEGINNING OF THE
SENTENCE, IT DOESN'T SAY THE LABEL THAT CAPTURES THE LEGAL RELATIONSHIP SHALL BE DEFINED
IN THE AGREEMENT. IT SAYS, THE NATURE OF THE BUSINESS AFFILIATION SHALL BE DEFINED.
MR. BIRMINGHAM, JR.: YES. SO, THIS IS THE WAY I WOULD KIND OF
DESCRIBE IT, THE ACT -- SO, TWO THINGS. IN 2018, THE LEGISLATURE SPECIFICALLY
REACTED BECAUSE IT WANTED TO MAKE IT CLEAR THAT SALESPEOPLE COULD BE INDEPENDENT CONTRACTORS.
SO, THAT WAS THE MOTIVATION BEHIND THE 2018 ACT AND FRANKLY IT WAS THE MOTIVATION BETWEEN
THE 2022 ACT. YOUR HONOR, WHAT THE LEGISLATURE THEN DID IS IT SAID, LISTEN, YOU NEED
TO ENTER INTO A CONTRACT. AND IN THE CONTRACT, YOU NEED TO STATE WHAT THE BUSINESS
AFFILIATION IS. AND INTERESTS INTERESTING, JUDGE, BECAUSE YOUR HONOR, YOU ASKED THIS QUESTION
EARLIER, YOU HAVE TO CONNECT BUSINESS AFFILIATION TO SERVICES TO AN EMPLOYMENT RELATIONSHIP
OR SERVICES AS AN INDEPENDENT CONTRACTOR. THE TERM BUSINESS AFFILIATION CAN'T
BE JUST CONSIDERED IN THE CLOUD. THE TERM BUSINESS AFFILIATION, IT SAYS, QUOTE, MAY BE
THAT OF AN EMPLOYMENT RELATIONSHIP OR THE PROVISION OF SERVICES BY AN INDEPENDENT
CONTRACTOR. SO, IN DESCRIBING WHAT A BUSINESS RELATIONSHIP IS, IT SAYS, YOU HAVE
TWO DIFFERENT OPTIONS THERE, CONTRACTING PARTIES, YOU CAN EITHER DESIGNATE IT AS AN EMPLOYEE
OR YOU CAN DESIGNATE IT AS AN INDEPENDENT CONTRACTOR. THE NEXT, JUDGE, SAYS
THE NATURE OF THE BUSINESS RELATIONSHIP SHALL BE DEFINED IN THE WRITTEN AGREEMENT.
SO IN ESSENCE, WHAT THE LEGISLATURE IS SAYING HERE IS YOU HAVE A CHOICE, YOU HAVE TO ENTER
INTO AN AGREEMENT, THE AGREEMENT SHOULD DECEMBER SEG NAT WHAT THE CHOICE IS AND THEN THAT
SHALL APPLY. THE COURT: SO IF THE CONTRACT HAS A DOZEN PARAGRAPHS THAT LAY
OUT TRADITIONAL RESPONSIBILITIES THAT ARE ALMOST ALWAYS AFFILIATED WITH AN EMPLOYMENT
RELATIONSHIP BUT THEN PARAGRAPH 13 GOES ON TO SAY THIS IS AN INDEPENDENT CONTRACTOR
RELATIONSHIP; THAT'S THE BUSINESS AFFILIATION, THAT CONTROLS AS YOU READ THE LAST SENTENCE
OF 3.2 B? MR. BIRMINGHAM, JR.: I WOULD SAY THAT CONTROLS IN COMBINATION
WITH, IN COMBINATION WITH THE FACT THAT IN 2022 THE COURT, AGAIN, AMENDED IT TO SAY THAT
THE STATUTE WILL RETROACTIVELY ENFORCE THE WRITTEN FWRAEMENT. AND THEN, WHAT IS
INTERESTING, JUDGE, IF YOU LOOK AT IT, YOUR HONOR, IF YOU LOOK AT IT IT IS NOT ONLY TO
ENFORCE THE WRITTEN AGREEMENT, BUT IT CONTINUES JUST TO MAKE SURE IT'S ENDORSING THE
INDEPENDENT CONTRACTOR RELATIONSHIP, IT CONTINUES AND SAYS IT WILL ENFORCE BUT NOT CHANGE
THE WRITTEN AGREEMENT, WHERE THE WRITTEN AGREEMENT BASICALLY PROVIDES FOR AN
INDEPENDENT CONTRACTOR RELATIONSHIP. SO, I MEAN, I'M NOT SURE HOW MUCH MORE
CLEAR THE LEGISLATURE COULD BE AT THIS POINT SAYING -- FERS IT SAYS ENTER INTO AN
AGREEMENT AN DEFINE THE NATURE OF THE AGREEMENT WHETHER IT BE IN CONTRACTOR OR EMPLOYEE
AND THEN IT SAYS, AND THE GOVERNOR FWRAED WITH THIS, THEY DOUBLED DOWN ON IT AN SAID OKAY,
WE'RE GOING TO ENFORCE BUT NOT CHANGE THE WRITTEN AGREEMENT AN ESPECIALLY IF IT'S A WRITTEN
CONTRACTOR, IN CONTRACTOR AGREEMENT. I THINK IT IS AN INDICATION, YOUR HONOR, THAT THE
LEGISLATURE IS REALLY WORKING HARD TO SAY, HEY, LISTEN JUDICIARY, GET IT RIGHT, WE'RE
SAYING THAT YOU ENFORCE THE AGREEMENT IF IT SAYS INDEPENDENT CONTRACTOR YOU ENFORCE THE
AGREEMENT, IF IT SAYS EMPLOYEE. THE COURT: I APPRECIATE YOUR ANSWERS EARLIER
ABOUT WEICHERT'S PRACTICE. CAN YOU TELL ME IS WEICHERT CONSISTENT WITH MOST
OF THE INDUSTRY IN LABELING MOST ALL OF ITS SALESPEOPLE INDEPENDENT CONTRACTORS?
MR. BIRMINGHAM, JR.: I WOULD CONTEST THE WORD LABEL. I ACTUALLY CAN'T TELL YOU YOUR HONOR,
WHETHER IT IS, PROBABLY N J R'S ATTORNEY COULD TELL YOU IF THAT IS THE CASE. I
DO KNOW IF YOU WANT TO BE A REAL ESTATE SALESPERSON AND BE AN EMPLOYEE THERE ARE
BROKERS OUT THERE WHERE YOU CAN BE AN EMPLOYEE. READ FIN WOULD BE RED FIN WOULD BE AN
EXAMPLE WHERE YOU CAN BE AN EMPLOYEE. L. JUSTICE WAINER APTER: I THINK
THERE IS DISAGREEMENT OVER WHAT THE STATUS QUO WAS BEFORE 2018. I SAW IN SOME OF THE
BRIEFS THE ALLEGATION THAT REAL ESTATE SALESPEOPLE HAD BEEN INDEPENDENT CONTRACTORS
SINCE 1941, BUT THEN I SAW IN OTHER BRIEFS, NO, THE BROKERS ACT HAS DEFINED REAL ESTATE
SALESPEOPLE AS EMPLOYEES AND THEY HAD BEEN DETERMINED TO BE ONLY EMPLOYEES BEFORE 2018
AN THEN YOU SAID THAT YOU WERE PRESERVING THE STATUS QUO BUT I THOUGHT THAT IN YOUR BRIEFS
IT HAD ACTUALLY SAID THAT THE 2018 AMENDMENT WAS INTENDED TO CHANGE AN NOT RESERVE THE
STATUS QUO SO MY QUESTION IS WHAT WAS THE STATUS QUO BEFORE 2018, WERE REAL ESTATE SALESPEOPLE
INDEPENDENT CONTRACTORS, WAS IT GOVERNED BY THE CONTRACT, WERE THEY ALWAYS EMPLOYEES,
WHAT WAS THE STATUS QUO, BERM BIRM YES. I WOULD ANSWER IT THIS WAY, YOUR HONOR,
I WOULD SAY THE CULTURE AND THE WAY IT PRACTICALLY OPERATED IN THE INDUSTRY, THE
STATUS QUO IS INDEPENDENT CONTRACTOR. IN THE REMAX CASE, THE COURT SAID, FOR THE PURPOSES
OF WORKERS' COMPENSATION, WE'RE GOING TO READ THE BROKERS ACT AN WE'RE GOING TO READ BECAUSE
THE BROKER'S ACT USED THE WORD EMPLOY INSTEAD OF INDEPENDENT CONTRACTOR, WE'RE GOING TO
READ THE BROKERS ACT TO SAY THAT IN THE REMAX CASE THAT THE SALESPEOPLE WERE EMPLOYEES.
JUSTICE PATTERSON: AND THAT GETS EASE THEM COMP COVERAGE, BIM BIRM YES.
MR. BIRMINGHAM, JR.: YES. THE THING THAT SURPRISES ME ABOUT
MR., DEPARTMENT OF LABOR BORE AFRN MR. KENNEDY'S RELIANCE ON REMAX IS BECAUSE REMAX SUPPORTS
US, IN REMAX THE COURT SAID HEY LISTEN WE'RE GOING TO LOOK TO THE BROKERS ACT TO MAKE
A DETERMINATION ABOUT WHETHER AN EMPLOYEE IS AN INDEPENDENT OR, THE BROEKS KERS ACT WAS
AEMDED AMENDED TO MAKE IT CLEAR THAT THE PARTIES COULD ENTER INTO AN INDEPENDENT CONTRACTOR
CONTRACT, SO REMAX HELPS US IT DOESN'T HURT US. JUSTICE PATTERSON: SO WHEN
THE LEGISLATURE AMENDED THE BROKERS ACT TO ADD THE TERM OR CONTRACTOR OR CONTRACTOR AFTER
EMPLOYER, EMPLOYEE AND EMPLOYEE, ETC., WE WENT THROUGH ALL OF THAT, IS IT YOUR CONTENTION
THAT THE LEGISLATURE WAS ESSENTIALLY RESPONDING TO REMAX? MR. BIRMINGHAM, JR.:
I MEAN IT WAS RESPONDING TO REMAX. IT MIGHT HAVE ALSO BEEN RESPONDING TO HARGROVE, BECAUSE,
YOUR HONOR, THE REALITY OF THE SITUATION IS ONE OF THE STATUTORY TEFRPGS PRINCIPLES,
RIGHT, IS THAT WE'RE SUPPOSED TO BELIEVE THAT THE LEGISLATURE IS COGNIZANT OF JUDICIAL
OPINIONS AND SO REMAX WAS ONE OF THEM. ANOTHER ONE WAS HARGROVE, BECAUSE IN 2015, THIS
COURT, THIS COURT CAME DOWN WITH HARGROVE. NOW, THE REALITY OF THE SITUATION IS, UNLIKE
WHAT MR. KENNEDY'S ATTORNEY SAYS, THIS COURT HAD NO OCCASION TO LOOK AT IN HARGROVE THE
REAL ESTATE INDUSTRY AND THE CONFLICT BETWEEN THE BROKERS ACT AND THE REAL ESTATE INDUSTRY.
IN FACT THE AMENDMENTS TO THE BROKERS ACT HAD NOT COME ABOUT IN 2015 SO THE COURT COULD
NOT HAVE CONSIDERED THE BROKERS ACT AND THE CONFLICT THERE. YES, I THINK WHAT
BASICALLY IN 2018, 2022, THE LEGISLATURE WAS RECOGNIZING, HEY, LISTEN, THIS IS THE
STANDARD, AS THE JUSTICE SAID, THIS IS THE STANDARD WAY OF OPERATION, AN INDEPENDENT
CONTRACTOR RELATIONSHIP AND IT WORKS WELL IN THE INDUSTRY AND WE DON'T WANT TO CHANGE IT.
JUSTICE PATTERSON: I'M SORRY. I WANT TO MAKE SURE I UNDERSTOOD THAT POINT.
YOU'RE SAYING WHEN WE DECIDED HARGROVE THE BROKERS ABSENT ONLY USED ONE WORD AND THAT
WAS EMPLOY. MR. BIRMINGHAM, JR.: CORRECT. AND THEN IN 2018 IT ADDED CONTRACT,
BUT ALSO IN 2018 IT ALSO ADDED THE FACT THAT AS WE SAID THAT THE CONTRACT SHOULD STATE
THE BUSINESS AFFILIATION AND THAT SHALL BE THE DEFINITION OF WHETHER THE PERSON IS AN
EMPLOYEE OR INDEPENDENT CONTRACTOR. JUSTICE PIERRE-LOUIS: AND PRIOR TO 2018,
AS WE HAD IN THIS CASE, THERE WAS A CONTRACT SETTING FORTH THE AFFILIATION AS AN
INDEPENDENT CONTRACTOR RELATIONSHIP SO I GUESS IT WAS THE STATUS IN THE INDUSTRY THAT BROKERS
WOULD ENTER INTO THESE GRAEMTHS, NEVERTHELESS, AGREEMENTS, NEVERTHELESS, IN ORDER TO,
I GUESS DEFINE THE RELATIONSHIP NOTWITHSTANDING THIS COURT'S DECISION IN REMAX OR THE
WORD EMPLOY IN THE BROKER'S ACT, IS THAT WHAT WAS HAPPENING? MR. BIRMINGHAM, JR.:
I THINK SO. REMEMBER, REMAX JUST DEALT WORK WITH COMPENSATION. SO BEFORE THE AMENDMENTS
TO THE BROKER'S ACT YOU COULD MAKE AN ARGUMENT THAT OKAY, THERE ARE DIFFERENT STANDARDS
TO BE APPLIED IN DIFFERENT CASES DEPENDING UPON WHAT LAW APPLIES. IT IS OUR
POSITION, I THINK IT'S CRYSTAL CLEAR THAT AFTER THE TWO AMENDMENTS, AFTER THE 2018 AMENDMENT,
2022 AMENDMENT, THIS IS THE STANDARD. THE COURT HAS STEPPED IN AND SAID THIS IS THE STANDARD,
WHAT THE PARTIES AGREE TO IN THE CONTRACT. JUSTICE PATTERSON: THE LEGISLATURE,
BERM BIRM I KEEP DOING THAT, I'M SORRY, THE LEGISLATURE. I APPRECIATE THAT.
YOUR HONOR, I WANT T TO CONTINUE. JUSTICE PATTERSON: I WANT TO GO BACK TO
ANOTHER QUESTION. MR. BIRMINGHAM, JR.: OKAY. JUSTICE PATTERSON:
WHAT SURVIVED THE CONDITIONAL VETO BECAUSE, YOU KNOW, YOU'VE TALKED ABOUT THE LEGISLATURE'S
INTENT IN 2018, THE LEGISLATURE'S INTENT IN TWUN, BUT WE HAVE, 2021, BUT WE HAVE A VERY
IMPORTANT BRANCH OF GOVERNMENT THAT GOT INVOLVED CONSISTENT WITH THE CONSTITUTION SO WHAT WAS
THE INTENT OF THAT CONDITIONAL VETO AND WHAT REMAINED OF WHAT YOU CHARACTERIZE AS THE
LEGISLATIVE INTENT. MR. BIRMINGHAM, JR.: YES. IF WE LOOK AT THE
LANGUAGE AND YOUR HONOR ASKED ME TO GO THROUGH THE LANGUAGE SO I KIND OF GOT STOPPED ON
THE PART WHERE WE SAY COURTS HAVE INTERPRETED THE BROKER AS ACT AS PROSPECTIVE. BUT
IF YOU LOOK AT THE NEXT SENTENCE THE GOVERNOR SAYS THE INTENT OF SEM PLEA BILL 6206
ACCORDING TO THE SPONSOR'S STATEMENT ACCOMPANYING THE BILL IS TO REAFFIRM. BLANK
BLANK REGARDING THE EMPLOYMENT RELATIONSHIP OR INDEPENDENT CONTRACTOR RELATIONSHIP OF
REAL ESTATE BROKERS AND THIS IS IMPORTANT AND TO RETROACTIVELY ENFORCE PAST WRITTEN AGREEMENTS
REGARDING THE SAME. THE NEXT SENTENCE, HE SAYS, I DON'T OBJECT TO THE
GENERAL INTENT OF THE ASSEMBLY BILL. SO WHAT THE GOVERNOR IS SAYING THERE,
YOUR HONOR, SPECIFICALLY IS WHAT ENDED UP IN THE FINAL LEGISLATION, WHAT ENDED UP IN THE
FINAL LEGISLATION IS GIVE EFFECT TO THE WRITTEN AGREEMENT RETROACTIVELY AN HE SAID HE
DIDN'T HAVE ANY PROBLEM WITH THAT WHATSOEVER. AND THEN, AS SOME OF THE QUESTIONS
OF THE JUSTICES, WHAT HE WAS CONCERNED ABOUT WAS HE WAS CONCERNED IT COULD BE USED AS
A BASIS FOR OTHER EMPLOYEES IN THE STATE TO MISS CLASSIFY WORKERS AN THEN HE GOES THROUGH
THE WHOLE UCL ARGUMENT, HE GOES THROUGH THE ABC ARGUMENT, IT IS, AN HE SAID WE NEED TO
GET RID OF THAT. I THINK IF YOU LOOK AT HIS DESCRIPTION OF VETO, I THINK WHAT
HE WAS CONCERNED ABOUT WAS USING THOSE ARGUMENTS -- OTHER EMPLOYERS USING THOSE ARGUMENTS
IN OTHER INDUSTRIES. FRANKLY, I WILL SAY THIS, THAT WAS ONE OF OUR TWO ARGUMENTS, ORIGINAL
LY IN THIS CASE, RIGHT, ONE OF OUR TWO ARGUMENTS WAS, IF YOU'RE GOING TO APPLY THE ABC
TEST WHICH COMES FROM THE UCL YOU SHOULD APPLY THE UCL EXEMPTIONS. THAT WAS ONE OF OUR
ARGUMENTS. THE ORIGINAL STATUTE WAS GOING TO INCLUDE THAT ARGUMENT THAT THE
EXEMPTIONS TO THE UCL SHOULD ALSO APPLY ACROSS THE BOARD. WHAT THE FWOV NOR
WAS CONCERNED ABOUT, AS HE SAYS HERE, THE LEGAL THEORIES. HE WAS CONCERNED ABOUT THE
25 OTHER CATEGORIES OUT THERE BEYOND REAL ESTATE SALESPEOPLE WHERE YOU COULD USE THIS
LEGAL THEORY. JUSTICE PATTERSON: IS IT WEICHERT'S POSITION THAT THE ONLY
CONCERN THAT IS EXPRESSED IN THE CONDITIONAL VETO MESSAGE IS A CONCERN ABOUT NONREAL
ESTATE SETTINGS AND IF YOUR POSITION IS MORE NUANCED THAN THAT, WHAT ASPECT OF THE
GOVERNOR'S CONDITIONAL VETO MESSAGE ADDRESSED THE REAL ESTATE BROKER SITUATION THAT WE HAVE
IN THIS CASE? MR. BIRMINGHAM, JR.: WELL, TO ANSWER THE SECOND PART OF YOUR
QUESTION FIRST, THE ASPECT OF WHAT THE GOVERNOR SAID TO ADDRESS IT TO REAL ESTATE BROKE
RS IS WHERE HE SAYS, AT THE BEGINNING, THE INTENT IS TO REAFFIRM THAT THE PARTIES CAN ENTER
INTO AN EMPLOYMENT RELATIONSHIP OR INDEPENDENT CONTRACTOR RELATIONSHIP AND TO RETROACTIVELY
ENFORCE PAST WRITTEN AGREEMENTS. SO AT THE VERY BEGINNING HE SAYS, THIS IS
WHAT I AGREED TO WITH THE 2018 AMENDMENTS TO THE BROKERS ABSENT AND SO I AM -- I HAVE
NO PROBLEM WITH THAT, SO THAT'S WHAT HE SAID. THEN HE SAYS I DON'T LIKE THIS LEGAL BLANK
WITH THE UCL, I DON'T KNOW LIKE THE FACT THIS CAN BE USED BY OTHER EMPLOYERS IN OTHER
INDUSTRIES SO I WANT THAT DONE. PATH PALT IS ONE AS SPENT OF THE CONDITIONAL VETO MESSAGE
THAT DOES ADDRESS THE REAL ESTATE BROKERS SITUATION IS THE GOVERNOR DID NOT WANT THE
UCL THEORY TO BE USED BY ANYBODY. MR. BIRMINGHAM, JR.: CORRECT.
JUSTICE PATTERSON: T IT WAS NOT JUST OTHER INDUSTRIES BUT WE DON'T WANT YOU IMPORTING
EXCEPTIONS FROM THE UCL AN CHOPPING PEOPLE OUT OF THE WPL. MR. BIRMINGHAM, JR.:
100 PERCENT, I AM NOT ARGUING THAT THE UCL EXEMPTION FOR REAL ESTATE PEOPLE SHOULD APPLY
AND THAT'S WHY WE SHOULD PREVAIL IN THE CASE I WANT TO RELY ON THE BROKER'S ACT.
JUSTICE PATTERSON: IS IS THAT THE ONLY ASPECT OF THE CONDITIONAL VETO MESSAGE THAT YOU
THINK ADDRESSED THE REAL ESTATE BROKER'S SETTING SPECIFICALLY AS OPPOSED TO OTHER INDUSTRIES
WHICH MAY IN THE GOVERNOR'S VIEW BE CONFUSED BY THE LANGUAGE. MR. BIRMINGHAM,
JR.: I THINK THE GOVERNOR ALSO DIDN'T WANT ANY SUPERFLUOUS LANGUAGE IN THERE THAT SOMEBODY
COULD LATCH ONTO AND SAY OKAY, BUT IT IS -- TO DIRECTLY ANSWER YOUR QUESTION, IT IS REALLY
FOR PEOPLE OUTSIDE OF THE REAL ESTATE INDUSTRY, RIGHT, THAT THEY COULD LATCH ON TO IT
AN SAY BECAUSE IT IS IN THIS STATUTE WE CAN APPLY THIS HERE AN EVADE THE ABC TEST HERE.
JUSTICE PATTERSON: COUNSEL FOR THE DOL HAS SAID THAT THE LANGUAGE OF THE
VETO MESSAGE AGREED WITH THE PURPOSE OF ALLOWING AN INDEPENDENT CONTRACTOR RELATIONSHIP
SHOULD BE VIEWED TO NOT NECESSARILY MEAN INDEPENDENT CONTRACTOR FOR PURPOSES OF WPL.
IT MIGHT BE VIEWED -- IT COULD BE VIEWED TO BE ALLOWING INDEPENDENT CONTRACTOR RELATIONSHIPS
THAT MIGHT BE VIEWED THAT WAY FOR PURPOSES OF OTHER STATUTES. I THINK I AM PARAPHRASING
THE ATTORNEY GENERAL'S ARGUMENT. WHAT IS YOUR RESPONSE. MR.
BIRMINGHAM, JR.: A COUPLE RESPONSES TO THAT AND IT WAS ONE OF THE QUESTIONS THAT ONE OF THE
JUSTICES ASKED. WHY WAS THE LEGISLATURE GOING THROUGH THE TROUBLE OF
AMENDING THE BROKER'S ACT TWICE IF IT WASN'T TO SAY THAT WE'RE RESPONDING TO COURT CASES
AN WE'RE RESPONDING TO SITUATIONS WHERE WE WANT TO MAKE IT CLEAR THAT YOU CAN BE AN
INDEPENDENT CONTRACTOR. IT CERTAINLY WASN'T -- YOUR HONOR, IT WOULDN'T MAKE ANY SENSE
WHATSOEVER THAT THE LEGISLATURE WOULD GO THROUGH AMENDING THE ACT TWICE TO ENDORSE HARGROVE
AND ENDORSE THE ABC TEST. IT WOULDN'T HAVE TO DO THAT. INSTEAD WHAT THEY WERE
DOING AN IF YOU LOOK AT WHAT THE GOVERNOR IS SAYING HERE ABOUT OTHER CASES HAVE GOTTEN
IT WRONG, THEY WERE DIRECTLY ADDRESSING OUR CASE AND SITUATIONS UNDER THE WPL WHERE SOMEBODY
WILL CLAIM THAT A REAL ESTATE BROKER IS AN EMPLOYEE BECAUSE THEY CAN'T PASS THE ABC
TEST. THE COURT: COUNSEL WE'RE AT THE 30 MINUTE MARK. I HAVE DONE A POOR
JOB AT REIGNING US INSOFAR AND I WANT TO TRY TO DO BETTER. CAN YOU PLEASE
REMIND US OF THE SPECIFIC QUESTION ON THE CROSS APPEAL. MR. BIRMINGHAM, JR.:
SO THE TWO QUESTIONS ARE: WHETHER OR NOT THE ABC TEST SHOULD APPLY WITH RESPECT TO
REAL ESTATE SALESPEOPLE TO DETERMINE WHETHER THEY ARE INDEPENDENT CONTRACTORS OR EMPLOYEES
AND THE SECOND QUESTION IS: WHETHER -- THE SECOND QUESTION IS: PURSUANT TO
THE BROKER'S AMENDMENT SHOULD THE PARTIES BE ABLE TO DETERMINE WHETHER THEY ARE EMPLOYEES
OR INDEPENDENT CONTRACTORS AND SHOULD THE COURT ENFORCE THAT DETERMINES. THE
COURT: THAT'S THE CROSS APPEAL, NOT THE DIRECT APPEAL. MR. BIRMINGHAM, JR.:
I'M NOT POSITIVE, YOUR HONOR. THE COURT: I AM ASKING BECAUSE YOUR REBUTTAL
IS LIMITED TO THE CROSS APPEAL SO I WILL GIVE YOU TIME TO CLARIFY THAT AS YOU THINK BEFORE
WE GET TO THAT REBUTTAL. MR. BIRMINGHAM, JR.: I THINK.
JUSTICE WAINER APTER: SO THE APPELLATE DIVISION HELD THAT THE ABC TEST DOES NOT APPLY
BUT THEN THEY DID NOT SAY -- THEY SAID NO, THE CONTRACT ITSELF DOESN'T GOVP INSTEAD OF
THERE IS GOING TO BE SOME OTHER TEST THAT WAS NOT DETERMINED. THE CONTRACT
DOES NOT GOVERN AND THERE WILL BE SOME OTHER TEST AS YET TO BE DETERMINED THAT WILL CONTROL.
THE COURT: LET'S GET TO THAT LATER. YOU WILL BOTH GET FIVE MEANT BUT I WANT
YOU TO UNDERSTAND WHERE YOU'RE GOING. MR. GOODMAN AND AS AMICUS I AM GOING
TO ASK THAT YOU REPEAT AND ADOPT PRIOR ARGUMENTS AND WE WILL NOT BE ABLE TO GIVE YOU A
HALF HOUR. WHICH IS NOT TYPICAL, WE DON'T GIVE AMICI THAT MUCH TIME AS YOU PERHAPS KNOW.
BARRY S. GOODMAN: THANK YOU, YOUR HONOR. LET ME JUST START,
YOU KNOW, WE TOOK A HARMONIZING STATUTES AN HERE WE DO HAVE THE WAGE PAYMENT AN WE HAVE
THE REAL ESTATE LICENSING ACT. I WOULD SUGGEST THAT THE REAL ISSUE AS I CAN
BEST FRAME IT AS IT IS BEFORE THIS COURT RIGHT NOW IS A REAL ESTATE SALESPERSON HAS A
WRITTEN AGREEMENT WITH A REAL ESTATE BROKER, DEFINING THEIR RELATIONSHIP AS AN INDEPENDENT
CONTRACTOR RELATIONSHIP DOES THAT INDEPENDENT CONTRACTOR AGREEMENT HAVE TO BE ENFORCED
AS SET FORTH IN 3.2 OF THE REAL ESTATE LICENSING ACT AND A. 620606 SO THAT THE REAL ESTATE
SALESPERSON FALSE WITHIN THE EXEMPTION AN THE WAGE PAYMENT LAW FOR INDEPENDENT CONTRACTORS?
THERE ALREADY IS AN EXEMPTION IN THE WAGE PAYMENT LAW FOR INDEPENDENT
CONTRACTORS. WHAT THE LEGISLATURE DID HERE WAS TO CREATE A TEST SOLELY FOR
REAL ESTATE SALESPEOPLE, VERY LIMITED, THE GOVERNOR WAS ALSO VERY CLEAR ABOUT THAT.
IT'S VERY LIMITED. SO YOU'RE ABLE TO DEFINE WHETHER OR NOT A SALESPERSON IS AN
INDEPENDENT CONTRACTOR FOR PURPOSES OF BEING EXEMPT FROM A WAGE PAYMENT LAW. I
WOULD SUGGEST THAT THIS IS TOTALLY CONSISTENT WITH WHAT THE LEGISLATURE HAS PREVIOUSLY
DONE. BACK IN 1945 WHEN YOU HAD THE UNEMPLOYMENT COMPENSATION LAW THE LEGISLATURE
CREATED AN EXEMPTION FOR REAL ESTATE SALESPERSONS FROM THE AB B C REALIZING REAL ESTATE
BROKERS ARE NOT GOING TO BE ABLE TO MEET THAT TEST SO THEY CREATED AN EXEMPTION.
FAST FORWARD THEN TO HARGROVE VERSUS SLEEPY'S, FIRST OF ALL, I SHOULD SAY NONE OF THE
OTHER STATUTES THAT WE'RE DEALING WITH HAVE A TEST WITHIN THEM. THIS COURT
IN HARGROVE V SLEEPY'S, TOOK THE TEST, THE ABC TEST FROM THE UNEMPLOYMENT COMPENSATION
LAW AND APPLIED IT TO THE WAGE PAYMENT LAW WHICH IS AT ISSUE IN THIS CASE. QUITE
FRANKLY, THE BELL WENT OFF THE LIGHTS WEPT OFF IN THE REAL ESTATE BROKERAGE INDUSTRY AT
THAT POINT. THE EXPERIENCE THAT WE HAD IN TERMS OF REMAX VERSUS WAS SO SEVERAL YEARS
AGO WHERE THIS COURT, I THINK APPROPRIATELY SO I HAD THE ARGUMENT OF ARGUING THAT CASE
AND I WAS PEPPERED WITH QUESTIONS ABOUT HOW CAN YOU SAY THAT REAL ESTATE SALESPERSONS
CANNOT BE CATEGORIZED AS SALESPEOPLE FOR PURPOSES OF WORKERS' COMPENSATION WHEN THE REAL
ESTATE BROKERS ACT ONLY REFERS TO AN EMPLOYMENT RELATIONSHIP BETWEEN BROKERS AND
SALESPERSONS. THE REAL ESTATE COMMISSION REGULATIONS ONLY REFER TO AN
EMPLOYMENT RELATIONSHIP. NOWHERE IN EITHER OF THOSE IS THERE ANY MENTION OF INDEPENDENT
CONTRACTOR STATUS. JUSTICE PATTERSON: AN AFTER THAT EXPERIENCE YOU
STILL CAME BACK? YOU'RE HERE. BARRY S. GOODMAN: WELL, I'M HERE.
JUSTICE PATTERSON: LET ME ASK YOU, YOU MENTION THAT THERE WAS AN EXCEPTION TO THE UCL
IN 1945, WHICH WAS WRITTEN INTO THE UCL, ONE OF THE ARGUMENTS WE'RE HEARING OVER HERE
AS I UNDERSTAND IT IS WHY ISN'T THERE AN EXCEPTION IN THE WPL THAT WOULD ELIMINATE ALL
THIS TALK ABOUT INDEPENDENT CONTRACTORS AN EMPLOYEES THAT SIMPLY SAYS, WE'RE JUST GOING
TO SAY, REAL ESTATE SALESPERSONS ARE DOING BUSINESS IN SUCH A UNIQUE AND DIFFERENT WAY
THAT WE'RE JUST GOING TO TAKE THE MATTER WITH WPL. BARRY S. GOODMAN: IT'S
A GREAT QUESTION AND THE ANSWER IS VERY SIMPLE. BECAUSE THERE WAS NO TEST IN THE WPL
THAT WE HAD TO BE EXEMPT FROM, THAT REAL ESTATE SALESPEOPLE HAD TO BE EXEMPT FROM.
JUSTICE PATTERSON: BUT AFTER HAR, HARGROVE. BARRY S. GOODMAN: YES.
JUSTICE PATTERSON: WHEN THERE WAS THE LEGISLATIVE ACT TIT I CAN ONLY IMAGINE THERE WAS
AN UP ROAR IN THE REAL ESTATE COMMUNITY, AFTER HARGROVE, EVERYBODY KNEW WE HAVE AN UCL
TEST HERE, WE'RE OUT OF THE UCL AND IT'S CHASING OUR INDUSTRY INTO THE WPL, SO WHY NOT
-- WHY DIDN'T THE LEGISLATURE SIMPLY EXEMPT THIS INDUSTRY FROM THE WPL. BARRY S.
GOODMAN: BECAUSE WHAT THEY CHOSE TO DO AND LET'S STEP BACK FOR A SECOND BECAUSE WITHIN
A YEAR OF THE HARGROVE DECISION, THE REAL ESTATE XHESHGS AMENDED ITS REGULATIONS. THE
REAL ESTATE COMMISSION OBVIOUSLY REGULATES REAL ESTATE BROKERS AN SALESPEOPLE. WITHIN
A YEAR OF HARGROVE, THEY SAID, HEY, DO YOU KNOW WHAT, ALL OF THE REFERENCES IN THE REAL
ESTATE COMMISSION REGULATIONS AND THE REAL ESTATE LICENSING ACT TO EMPLOYMENT, EMPLOYEE
INCLUDE INDEPENDENT CONTRACTOR STATUS. AND THEN RIGHT AFTER THAT, THE LEGISLATURE IN
2018 AND IT TAKES A LITTLE LONGER TO GET LEGISLATION THROUGH THAN IT DID TO FET THINGS
DONE AT THE REAL ESTATE COMMISSION, CAME UP WITH THE AMENDMENTS TO THE REAL ESTATE LICENSING
ABSENT TO CLARIFY THAT IT COULD BE AN EMPLOYEE RELATIONSHIP OR A CONTRACTOR RELATIONSHIP
AND IT CHANGED THAT LANGUAGE THROUGHOUT THE STATUTE IN ORDER TO CLARIFY THAT, ALL IN
RESPONSE TO HARGROVE AND THE TEST THAT WAS APPLIED AND ALSO 3.2. JUSTICE PATTERSON:
TO WHICH YOUR COLLEAGUES OVER ON THIS SIDE OF THE ROOM SAY, THAT'S FINE, INDEPENDENT
CONTRACTOR, IT CAN MEAN A LOT OF THINGS FOR DIFFERENT STATUTES AND IT DOESN'T MEAN HERE
EXEMPTION FROM THE WPL, IT MEANS SOMETHING ELSE. BARRY S. GOODMAN: YEAH,S
AND I HEARD THAT ARGUMENT AN I READ THEIR BRIEFS AN QUITE FRANKLY, WHAT THEY DO IS THEY
GLOSS OVER THE CLEAR LANGUAGE, NOTWITHSTANDING ANY PROVISION IN THE BROKERS ACT OR ANY
OF THE LAW, RULE OR REGULATION TO THE CONTRARY; THAT'S VERY BROAD LANGUAGE. IT WAS INTENDED
TO BE BROAD. BECAUSE WE'RE NOT GOING TO JUST FOCUS ON THE LEGISLATION OR THE LEGISLATURE
DIDN'T JUST FOCUS ON THE LEGISLATION ON THE WAGE PAYMENT LAW BECAUSE, DO YOU KNOW WHAT,
I AM GOING TO HAVE THIS BATTLE IN TERMS OF WAGE AN HOUR LAW AN TRYING TO APPLY THAT TO
THE REAL ESTATE INDUSTRY. IT WAS VERY BROAD LANGUAGE TO COVER THE VARIOUS LABOR LAWS
THAT WE HAD TO DEAL WITH, BUT IT WAS ALL RESPONSE TO HARGROVE, THE WAGE PAYMENT LAW; THAT WAS
REALLY THE ISSUE THAT WAS BEING DEALT WITH. YOU CAN'T GLOSS OVER THAT NOT
WITHSTANDING LANGUAGE. THE ARGUMENT THAT IT ONLY APPLIES TO THE BROKER'S ACT, THIS ISSUE
ABOUT THE CONTRACT DEFINED A RELATIONSHIP, ONLY APPLIES TO THE BROKER'S ACT, NO. 3.2
B CLEARLY SAYS IT APPLIES TO ANY OTHER LAW, RULE OR REGULATION TO THE CONTRARY.
JUSTICE PATTERSON: TAKE THESE REAL ESTATE SALESPERSONS OUT OF WORKERS' COMP.
BARRY S. GOODMAN: THE ANSWER IS I DON'T KNOW. AS OF RIGHT NOW, IT CERTAINLY DOES NOT.
THE ISSUE THAT HAS BEEN BRIEFED AND THAT IS BEFORE THIS COURT IS THE WAGE PAYMENT LAW.
I DON'T KNOW HOW IT PLAYS OUT IN TERMS OF WORKERS' COMP. WHERE THEY HAVE THE
UNEMPLOYMENT COMPENSATION ACT THAT HAS A SPECIFIC STATUTORY TORE REEXEMPTION, WHAT WE HAVE
HERE IS THE APPLICATION FOR THE WAGE PAYMENT LAW. JUSTICE PATTERSON: BUT
BY THE SAME LOGIC, IF WHAT YOU'RE SAYING IS THEY WANTED TO SWEEP AWAY ANY LAW THAT WOULD
IMPOSE AN AN EMPLOYEE DESIGNATION OR WOULD RECOGNIZE AN EMPLOYEE DESIGNATION BASED ON
A TEST SUCH AS THE ABC TEST, BY THAT SAME LOGIC, THE REAL ESTATE SALESPERSONS COULD FIND
THEMSELVES OUT OF COMP. BARRY S. GOODMAN: IT IS POSSIBLE. I CAN'T STAND
HERE AND SAY YES OR NO TO THAT QUESTION, YOUR HONOR. CANDIDLY IF THERE IS GOING TO BE
ANY CARVE OUT THE LEGISLATURE CERTAINLY CAN SPEAK TO THAT. IF THEY ARE CON CONCERNED
ABOUT PROTECTING, YOU KNOW, WORKERS' COMPENSATION FOR REAL ESTATE SALESPERSONS, THEY
CAN AMEND THE STATUTES TO PROVIDE THAT, DO YOU KNOW WHAT, WORKERS' COMPENSATION IS CARVED
OUT FROM THIS SPECIFIC PROVISION. THEY HAVEN'T DONE THAT AND I DON'T KNOW HOW THAT PLAYS
OUT AN I HAVEN'T BRIEFED THAT AND I HAVEN'T LOOKED AT ALL THE OTHER LABOR LAWS AN I AM
NOT GOING TO LOOK AT THOSE IMPLICATIONS BECAUSE OF THE FACT THAT WE'RE DEALING WITH THE
WAGE PAYMENT LAW HERE. JUSTICE MICHAEL NORIEGA: CAN AN INDIVIDUAL STAND
IN BOTH POSITIONS BE AN EMPLOYEE AND AN INDEPENDENT CONTRACTOR DEPENDING ON THE
STATUTE THAT APPLIES. BARRY S. GOODMAN: AND I AGREE WITH THAT UNDER THE
CASE LAW THAT'S VERY CLEAR IN TERMS OF WORKERS' COMPENSATION AND IN TERMS OF SOME OTHER
EMPLOYMENT LAWS. HERE DEALING WITH THE WAGE PAYMENT LAW AND I WOULD ENCOURAGE
YOU TO APPLY THE TEST THE LEGISLATURE HAS PROVIDED, WHAT IS IN THE WREN AGREEMENT
BETWEEN THE PARTIES, THEY CAN CHOOSE TO BE AN INDEPENDENT CONTRACTOR OR EMPLOYEE, ENFORCE
THE CONTRACT AS THE LEGISLATURE SAYS. IN RESPONSE TO A QUESTION EARLIER ABOUT
HOW MANY -- WHAT PERCENTAGE OF THE REAL ESTATE SALESPERSONS ARE INDEPENDENT CONTRACTORS
VERSUS EMPLOYEES, THERE WAS A SURVEY ACTUALLY CITED IN WEICHERT'S BRIEF, 87 PERCENT OF
A R'S MEMBERS RESPONDED THAT THEY WERE INDEPENDENT CONTRACTORS. JUSTICE
PATTERSON: IS THIS NATIONAL. BARRY S. GOODMAN: NATIONAL. WE DON'T HAVE
SPECIFICS FOR NEW JERSEY BUT I SUSPECT IT'S VERY MUCH THE SAME AN THAT MAKES 13 PERCENT
OF THE BROKERS HAVE CHOSEN AN EMPLOYMENT MODEL. SO THERE IS A CHOICE, YOU KNOW,
FOR THE REAL ESTATE SALESPEOPLE IF THEY WANT TO BE EMPLOYEES. IF THEY WANT TO WORK 9:00
TO 5:00 THAT'S FREIGHT HAVE THEIR WEEKENDS FREE, STHE DON'T WANT TO HAVE SHOW HOUSES OR
BE AVAILABLE 24/7 THAT'S OKAY, THEY CAN CHOOSE TO BE EMPLOYEES; THAT'S BETWEEN THE BROKER
AND THEY HAVE THE SALESPERSON. JUSTICE PATTERSON: CAN A BROKER WHO IS
COMPLYING WITH THE BROKERS ACT MEET THE ABC TEST. BARRY S. GOODMAN: I THINK
IT WOULD BE AWFULLY DIFFICULT, IF NOT IMPOSSIBLE BECAUSE OF THE SPRRPGS AN CONTROL THAT IS
REQUIRED BY THE REAL ESTATE COMMISSION. BY THE BROKERS ACTED AN THE REAL ESTATE COMMISSION
REGULATIONS. I THINK THAT MON NEL RECOGNIZED THAT IN MASSACHUSETTS WHICH HAS BEEN CITED
IN THE BRIEFS AN I THINK THE APPELLATE DIVISION PROPERLY RELATIONED THAT EYES EASE ALMOST
IMPOSSIBLE. WHAT YOU DO IF YOU APPLY THE ABC TEST YOU REALLY WOULD UNDER MINE THE ENTIRE
PURPOSE OF PASSING 3.2 AND THE 2018 AMENDMENTS AND A. 62060206 BECAUSE THE REALTY IS ALL
REAL ESTATE SALESPEOPLE ARE GOING TO WINDUP BEING EMPLOYEES. MANY LET'S STEP BACK, I
MEAN, AS THE REAL ESTATE COMMISSION PROPERLY RECOGNIZED WHEN IT CHANGED IT'S REGULATIONS
IN 2017 TWO RECOGNIZE THE EMPLOYMENT STATUS IT TALKED ABOUT WE'RE DOING THIS TO RECOGNIZE
THE BLANK AN PRESENT STATUS OF THE INDUSTRY WHERE SALESPEOPLE ARE MOSTLY INDEPENDENT
CONTRACTORS. WHEN THEY DID THAT, THERE WAS A PURPOSE FOR THEM MAKING THAT STATEMENT
BECAUSE HISTORILY. JUSTICE WAINER APTER: STORE SORRY, WHAT STATEMENT, EXACTLY?
BARRY S. GOODMAN: THE REAL ESTATE COMMISSION PROMULGATED THE REGULATION
IN 2017 SAYING THAT EVERY REFERENCE TO EMPLOYMENT INCLUDES INDEPENDENT CONTRACTOR STATUS
IN THE BROKERS ACT AN IN THE REGULATIONS AND THAT WAS IMPORTANT BECAUSE HISTORILY, EVEN
BEFORE THE 2018 AMENDMENTS, BROKERS AN SALESPERSONS ENTERED INTO INDEPENDENT
CONTRACTOR AGREEMENTS FOR THE MOST PART. I THINK THAT 88 PERCENT NUMBER, IT MAY ACTUALLY
BE LOWER. 87 PERCENT OF SALESPEOPLE, THEY CATHETERIZED AS INDEPENDENT CONTRACTORS, THAT
HAS HISTORILY BEEN THE CASE EVEN WHEN THE REAL ESTATE LICENSING ACT AN THE REAL ESTATE
REGULATIONS DIDN'T EVEN RECOGNIZE THAT. AN THAT'S WHY THIS COURT RENDERED ITS DECISION
IN THE REMAX CASE, BUT THE BOTTOM LINE STILL IS THAT AFTER HARGROVE I THINK IT IS IMPORTANT
TO REALIZE THAT REAL ESTATE SALESPEOPLE WERE VULNERABLE BECAUSE THEY COULDN'T MEET THE
ABC TEST AND THAT'S WHY THE REAL ESTATE COMMISSION ACTED; THAT'S WHY THE LEGISLATURE
ACTED IN 2018 IN RESPONSE TO HARGROVE. AND THEN YOU HAD THE FIRST APPELLATE DIVISION DECISION
IN THIS CASE SAYING THERE WAS NO RETROACTIVITY OF SECTION 3.2, 2018 AMENDMENTS, SPECIFICALLY
SECTION 3.2 AND, IN LESS THAN A MONTH, THE LEGISLATURE INTRODUCED LEGISLATION TO MAKE
3.2 RETROACTIVE. NOW, YOU KNOW, I WOULD JUST XHEPT FOR A SECOND, I HEARD A
LOT OF ARGUMENT THIS MORNING ABOUT THINGS THAT WERE NOT PASSED. I HEARD, FOR EXAMPLE
TWO BILLS. THE COURT: WE DON'T NEED TO SPENT TOO MUCH TIME ON LEGISLATION
THAT WAS NOT ENACTED. BARRY S. GOODMAN: I WANT TO POINT OUT ONE THING IF
YOU WILL ALLOW ME. THERE WERE TWO BILLS, FOR EXAMPLE, THAT WERE INTRODUCED THAT PROVIDED
THE ABC TEST WOULD BE THE TEST GOVERNING THE WAGE PAYMENT LAW. AND IN BOTH OF THOSE BILL
S, THERE WAS AN EXEMPTION FROM THE ABC TEST FOR REAL ESTATE SALESPEOPLE. THOSE BILLS DID
NOT GET PASSED, BUT THE LEGISLATURE RECOGNIZED EVEN THERE THAT THERE HAD TO BE AN EX ACCEPT
SHUN FOR REAL ESTATE SALESPERSONS SO IT WAS NOT A BILL THAT CREATED ANY EXCEPTIONS TO
THE WAGE PAYMENT LAW. IT WAS A BILL THAT WOULD APPLY THE ABC TEST STATE WIDE FOR THE
WAGE PAYMENT LAW WAS AN WITH AN EX ACCEPT SHUN FOR REAL ESTATE SALESPERSONS.
THE COURT: WE CAN NEVER TELL WHAT THE LEGISLATURE WAS THINKING WHEN IT DOESN'T EVEN ACT
THE LAW MAYBE THEY THOUGHT IT WAS ALREADY COVERED, MAYBE THEY THOUGHT IT WAS A GREAT
IDEA, A TERRIBLE IDEA, IT DOESN'T HELP US SO YOU NEED NOT GO THERE. BARRY S.
GOODMAN: UNDERSTOOD. CHIEF JUSTICE RABNER: BEFORE YOU SIT DOWN, WE WELCOME
YOUR PARTICIPATION BUT I WANT TO CLARIFY SOMETHING FOR THE AMICUS YOU REPRESENT, THE
BRIEF SAYS IT REPRESENTS BOTH BROKERS AN SALESPEOPLE AND SOMETIMES THEIR INTERESTS
DIVERGE AND WE HAVE BOTH KAMPFS HERE TODAY WHAT DOES NEW JERSEY SPEAK FOR AS A FRIEND OF THE
COURT TODAY. BARRY S. GOODMAN: MEMBERS AN SALESPERSONS. NEW JERSEY REALTORS
SALESPERSONS, WE HAVE ACTUALLY SURVEYED THEM, THEY WANT TO MAINTAIN THEIR INDEPENDENT
CONTRACTOR STATUS SO WHILE THERE MAY BE ONE SALESPERSON, AN EX SALESPERSON FROM WEICHERT
WHO WANTED TO CHALLENGE THIS STRUCTURE, THE HISTORY TORE RIK STRUCTURE OF INDEPENDENT
CONTRACTOR STATUS, THE OVERWHELMING MAJORITY OF MEMBERS OF THE NEW JERSEY REALTORS WANT
TO MAINTAIN THEIR INDEPENDENT CONTRACTOR STATUS. LET ME EXPLAIN WHY FOR A
SECOND. REAL ESTATE SALESPERSONS HAVE FLEXIBILITY IN TERMS OF THEIR HOURS.
I MEAN, MANY OF THEM, QUITE FRANKLY, ARE PART TIMERS, SOME OF THEM HAVE OTHER FULL TIME
ENGAGE MTHS INCLUDING BEING APPARENT AND THEY FIT IN WHAT THEY CAN WHEN THEY CAN. THERE IS
FAVORABLE TAX TREATMENT TO BE AN INDEPENDENT CONTRACTOR IN TERMS OF DEDUCTING EXPENSES
AN THINGS LIKE THAT. WHAT ARE THE RAMIFICATIONS AND THIS IS REAL LIFE IF THE
WPL WAS APPLIED TO REAL ESTATE SALESPERSONS IS THAT BROKERS WOULD LAYOFF, THEY WOULD
TERMINATE THEIR AGREEMENTS WITH, I SHOULD SAY, SALESPERSONS WHO ARE NOT PRODUCTIVE, WHO ARE
PART TIMERS BECAUSE THEY WOULDN'T WANT TO DEAL WITH THE RIGORS OF THE WPL. THEY WOULDN'T
WANT TO PAY WHAT THEY WOULD HAVE TO PAY FOR PEOPLE WHO ARE PART TIMERS AND MAYBE HAVE
ONE TRANSACTION A YEAR, TWO TRANSACTIONS A YEAR SO THERE IS A REAL LIFE CONSEQUENCE FOR
PEOPLE WHO ARE FULL TIME PARENTS, ETC., PART TIMERS FOR WHATEVER REASON, THEY WOULD
PROBABLY BE CUT OUT OF THE INDUSTRY AS A PRACTICAL MATTER. ONE OTHER THING
-- CHIEF JUSTICE RABNER: I'M SORRY, JUST TO CLARIFY, IF YOU CAN AND I RECALL
THAT IN YOUR BRIEF AS WELL, THE ORGANIZATION IS FUNDED PRIMARILY FROM BROKERS, PRIMARILY
FROM -- BARRY S. GOODMAN: OVERWHEM MINGLY SALESPEOPLE BECAUSE EACH PAY DUES.
JUSTICE PATTERSON: THEY INDIVIDUALLY PAY DUES. BARRY S.
GOODMAN: INDIVIDUALLY. JUSTICE PATTERSON: AS SOMETIMES HAPPENS IN LAW FIRMS
WITH BAR ASSOCIATION DOES THE BROKER PAY EVERYBODY'S DUES. BARRY S.
GOODMAN: THAT IS A GREAT QUESTION BECAUSE THAT DEPENDS UPON THE AGREEMENT BETWEEN THE
BROKER AND SALESPERSON. BROKERS CAN PAY ALL THOSE FEES BECAUSE THEY SEE THE BENEFITS
OF BELONGING TO THE SASH YAGS. VERY OFTEN IT'S PASSED ALONG TO THE SALESPERSON AND THE
BROKER WILL FRONT IT AN DEDUCT IT FROM COMMISSIONS, WHICH BRINGS ME TO ANOTHER
ISSUE. THE COURT: I NEED TO ASK YOU TO WRAP UP. BARRY S. GOODMAN:
I WILL WITH THIS ISSUE IF I CAN. THE REAL ESTATE COMMISSION REGULATIONS PROVIDE
MORE PROTECTIONS AND ARE CONTRADICTORY TO THE WAGE PAYMENT LAW. TRYING TO APPLY THE WAGE
PAYMENT LAW TO REAL ESTATE SALESPERSONS IS LIKE TRYING TO FIT A ROUND PEG IN A SQUARE
HOLE. IT DOESN'T WORK. SOME OF THE REGULATIONS, FOR EXAMPLE, YOU ASKED ABOUT DEDUCTIONS,
WELL, THE WAGE PAYMENT LAW HAS A LIST OF DEDUCTIONS IN TERMS OF UNION DUES, CLOTHES,
ETC., AN YOU CAN'T GO BEYOND THOSE DEDUCTIONS. NONE OF THEM FIT THE REAL ESTATE BROKERAGE
INDUSTRY. THE REAL ESTATE COMMISSION LACKS FLEXIBILITY IN TERMS OF DEDUCTIONS, IT COULD
BE FOR MEMBERSHIP. IT COULD BE FOR M L S FEES, ETC. ANOTHER ISSUE, AND THIS IS
ONE THAT CAME UP BEFORE, REAL ESTATE COMMISSION REQUIRES THAT PAYMENTS OF COMMISSIONS
BE MADE WITHIN TEN DAYS, TEN BUSINESS DAYS OR AS OTHERWISE PROVIDED IN THE AGREEMENT.
I DON'T -- I'M NOT FAMILIAR ENOUGH WITH THEM, THE WPL TO KNOW MR. SATTIRAJU'S CONTENTION
THAT COMMISSIONS CAN BE PAID THE WAY HE DESCRIBED IT, BUT I DO KNOW THAT THE STATUTE THAT
I READ, THE WPL SAYS YOU HAVE TO PAY IT ON A -- YOU KNOW, TWICE ON A CALENDAR BASIS.
THERE ARE OTHER PROTECTIONS THAT THE REAL ESTATE COMMISSION PROVIDES IN TERMS OF A WRITTEN
AGREEMENT, THEY HAVE TO HAVE SPECIFICS IN TERMS OF THE AMOUNT OF COMPENSATION, WHAT HAPPENS
UPON TERMINATION, IN TERMS OF PAYMENT OR RENEWALS, CLOSINGS THAT HAPPEN AFTER
TERMINATION OF A SALESPERSON. WPL DOESN'T PROVIDE THOSE PROTECTIONS. AND ONE OTHER THING
THE REAL ESTATE COMMISSION SPECIFIES THAT WITHIN 30 DAYS OF A SALESPERSON LEAVING A BROKER,
THE BROKER HAS TO PROVIDE AN ACCOUNTING OF ALL MONIES DUE THAT ARE BECOMING DUE TO THE
SALESPERSON AND THAT COULD INCLUDE RENEWALS ON LEASES THAT MAY GO FOR THE NEXT SEVERAL
YEARS. IT MAY BE CLOSINGS THAT ARE GOING TO TAKE PLACE. THERE IS NOTHING IN THE WPL
THAT REALLY MIRRORS THAT. AND SO THE REGULATIONS, THE STATUTE, THE WAY IT IS SET
UP FOR THE WPL JUST DOESN'T REALLY FIT FOR THE REAL ESTATE BROKERAGE INDUSTRY AND THERE ARE
ALREADY PROTECTIONS IN PLACE FOR REAL ESTATE BROKERS THAT HAVE BEEN PUT IN PLACE BY THE
REAL ESTATE COMMISSION. CHIEF JUSTICE RABNER: MR. GOODMAN MAN, THANK YOU.
BARRY S. GOODMAN: THANK YOU. CHIEF JUSTICE RABNER: WE'RE GOING
TO TAKE A TWO-MINLT BREAK AND COME BACK. RAVI SATTIRAJU: THANK YOU, YOUR HONOR
I APPRECIATE IT. YOUR HONOR I WANT T MAKE SMUR I'M NOT SPEAKING BEYOND, THITS ON MY REBUTTAL
IS ON ON MY FREE TO RAISE ANY ISSUE, RAB RASH HE'S LICHL TO THE THIS CROSS APPEAL, 5
MINUTES ON THE CLOCK. RAVI SATTIRAJU: ONE THING AS I WAS GOING THROUGH
MY NOTES 1 THING THAT STRUCK ME IS THAT THE LEGISLATIVE ACTIVITY THAT'S TAKING PLACE AND
I APPRECIATE WHAT URGE SAID ABOUT BILLS THAT FAIL WE SHOULDN'T BE LOOKING AT BECAUSE WE
DON'T KNOW WHY THEY FAILED THAS A POINT I THINK IS IMPORTANT, WITH ALT LEGISLATIVE ACTIVE
THE HAVE THE THAT'S IMPORTANT, THE CONSEQUENCE OF WHAT IS BEING ADDRESSED HERE HAS TO BE
PASSED TO COME TO PLAY, THE WAGE PAYMENT LAW IS A FUND MEMORIAL EMPLOYMENT STATUTE THAT
PROTECTS WORKERS AND IF WORRY GOING T TAKE AWAY PEBBLE HS RIGHTS UVENT THE WPL, WHAT I
RESPECTFULLY SUGGEST IS THAT THAT HAS TO BE DONE IN A CLEAR WAY THAT IS NOT, THAT SHOULDN'T
BE DONE THROUGH AMBIGUOUS LANGUAGE OR IN WAY THAT ISN'T CLEAR. THERE WAS A STATUTE, THERE WAS
A BILL IN 2019 AFTER WE FILED THAT SPECIFICALLY AMOUNT THE WPL AND EXEMPTED REAL ESTATE
AGENTS. JUSTICE WAINER APTER: I'M SORRY A MEEK CHEE POINTED OUT THAT IT WASN'T
THAT THE BILL WASN'T TO ONLY EXEMPT REAL STATE SALESPEOPLE P IT FAILED, INSTEAD THAT
TWU THE BILL WAS TO CODIFY THE ABC TEST AND EXEMPT REAL ESTATE SALESPEOPLE AND I FAILED,
IVEN IN THE POSSIBLE IT FAILED BECAUSE THE DIDN'T WANT TO COD FIGHT ABC TEST. RAVI
SATTIRAJU: POINLT I'M MAKING YOU WANTED TO CREATE AN EXEMPTION THAT, IS THE WAY TO DO
IT. TO AMEND THE BILL THAT YOU'RE SAYING THIS IS A BILL WHERE PEOPLE HAVE RIGHTS, IF
YOU WANT TO EXEMPT SOMEONE FROM IT WE'RE GOING TO SAY THAT YOU'RE EXEMPT FROM IT. LAP
AP WHY IS THAT NECESSARY WHEN THE BILL ITSELF CREATES AN EXEMPTION IN IT FOR INDEPENDENTS
CONTRACTORS? RAVI SATTIRAJU: IT DOES CREATE AN EX SEM SHUP FOR INPEPT
CONTRACTORS BUT THERE ARE ON THE EMPLOYEES THAT ARE EX SEFRP THE THE PAGE AND LAW UNDER
NOUP RUSS DIFFERENT CAT DPOERS SO THERE ARE INDUSTRIES WHERE THAT IS DONE. SO IN IF YOU
LOOK AT AGAIN IN 2020 A SIMILAR BAIL FAILED. A. THE BILL, THE LAMG WITCH IN THE PT
VETOED LANGUAGE HERE UNDER CREAM COURT CONDITIONAL DETALTS VEE TOE LANGUAGE IS TO BE
CONSIDERED. CHIEF JUSTICE RABNER: THAT'S NOT WHAT I WAS REFERRING TO.
RAVI SATTIRAJU: THE BROKER SALESPERSON SHALL NOT BE REQUIRED TO SATISFY
ANY OTHER TEST FOR ANY OTHER LAW, RULE OR REGULATION INCLUDING BUT NOT LIMITED TO THE
TEST SET FORTH APPLIED TO THE WAGE PAYMENT LAW. TO BE DEEMED INWENT CONTRACTOR AS PROVIDE
THE IN THE SECTION FOR PURPOSES OF ANY OTHER LAW, RULE OR REGULATION. IF
THAT LANGUAGE SURVIVED I WOULDN'T BE HERE, THAT WOULD DISPOSE OF THE ISSUE BEFORE THE
COURT. THAT LANGUAGE WAS STRUCK. SO WHAT WE'RE LEFT WITH IS AN HE EFFORT TO LOOK AT,
WAWA WE ARE LEFT WITH IS IG NORG THE STRIKING OF THAT LANGUAGE, IS TO REALLY PARSE AWAY
OF AT OTHER LANGUAGE TO FIND OUT WHAT THE GOVERNOR INTINNED AND RESPECTFULLY I DON'T
THINK WHAT WE HAVE BEEN TALKING ABOUT IN TERMS OF A TERM NOTWITHSTANDING IN TERMS OF LANGUAGE
I QUOTED SAYING THE LANGUAGE I QUOTED AT THE END OF THE BILL WHERE WE SAID IN ORDER TO
ENSURE THE BILL DOES NOT INADD VER KATD THE CAN RMENT WAEL ESTABLISHED LEGAL STAND RS
BETWEEN OH EMPLOY AND RIN PENT CONTRACTOR I'M RECOMMEND K CHANGES TO THE 11 SHUN MORE
DIRECTLY SATISFY ITS INTENT. WHAT WE'RE TALKING ABOUT HERE WHETHER IT'S
EARLIER LANGUAGE ONLY REFERRING TO THE UCL, WHAT IS THIS LAST SENTENCE I'M TALKING ABOUT
REFER TO, I'M RESPECTFULLY SUGGESTING HAD IS NOT ENOUGH TO STRIP PEOPLE OF THEIR RIGHTS
UNDER THE WPL AND I THINK IN TERMS OF AS YOUR HONOR'S ARE EVALUATING THIS, I THINK THAT'S
A VALID POINT TO MAKE. AND I WAS AMICUS IN THE EAST BAY DRYWALL CASE AND AS RT THAT YOU
INVITE THE THE DEPARTMENT OF LABOR TO CONSIDER REGULATIONS. I THINK WHAT CAN BE DONE
HERE INSTEAD OF US PLAYING GUESSING GAMES ABOUT WHAT WAS INTENDED IS IF YOU WANT TO SAY,
LOOK, IF YOUR GOING TO STRIP PEOPLE OF THEIR RIGHTS UNDER THE WPL YOU NEED T SIGH OH IN
A MORE CLEAR WACHLT AND SHORT OF THAT THE DOUGH FAULT THE WPL COVERS THESE PENAL, IF IT
LEGISLATURE BANTS TO CHAFRMG THAT THIS WHAT YOU NIED TO DO IN ORDER FOR US TO GO FOR AS
A COURT OR WE HAVE TO DETERMINE THE SCOPE OF PEEB'S RIGHTS, WHAT THE RECORD BEFORE US
IS INSUFFICIENT TO DO THAT T I THINK THAT'S SOMETHING THAT COULD BE DONE, BECAUSE
HONESTLY THIS MY CASE, I BROUGHT IT, I HAVE VERY STRONG OPINIONS ABOUT WHAT THE LANGUAGE
SAID AND WHAT IT MEANS. DEBATE ABOUT THE I WOULD IS RESPECTFULLY SUGGEST THE DEFAULT
BOB THE PEOPLE KEEP THEIR RIGHTS UNLESS I MEET A HIGH STANDARD FOR TAKING THEM AWAY.
CHIEF JUSTICE RABNER: ITS A GOOD POINT TO STOP WITH. OF. RAVI
SATTIRAJU: ANOTHER POINT I WANT TO MAKE IS THE SOLE ISSUE THE STATUS QUOTE.
CHIEF JUSTICE RABNER: WE'RE AT 5 MINUTES AND THEN WE'RE DONE. RAVI SATTIRAJU:
WE'RE TALKING ABOUT STATUS QUO, BEFORE 2018 REPS OPENLY REFERRED TO AN MROEMENT RELATIONSHIP.
IF PEOPLE WERE REFERRING TO AND THERE WAS NO OTHER BASIS IN THE LAW TO CALL PIECE PEOPLE
INDEPENDENT RAKT TOURS SO IF THERE'S WIDESPREAD MISS CLASSIFICATION, THAT'S A PROBLEM
THE STATE OF NEW JERSEY. GOVERNOR MURPHY ISSUE A REPORT SAYING MISS CLASSIFICATION WAS
A MAJOR PROBLEM SO GIVEN THE FACT THARTS BEVEN LONG-STANDING PISS CLASSIFICATION AND THE
PEOPLE AREN'T DESIGNATING PEEM PROPERLY, THAT'S IN THE A DEFENSE OR HEY WE'RE GOING LOOK
AT PEOPLE WERE DOING IT, YOU'RE MRIEG WITH THE LAW OR NOT COMPLYING WITH THE LAW, YOU'RE
MEET AGO FEST OR YR NOT MEETING A TEST SO IEPG I'M OVER BUT I WANT TO END ON THAT POINT,
VAUK THANK YOU VERY MUCH. MR. BERMING HAL. CHIEF JUSTICE RABNER: MR. B
IRMINGHAM. JOHN F. BIRMINGHAM, JR.: I'LL BE BRIEF YOUR HONOR, LET ME TALK
ABOUT THE STRIPPING AFTER WAY OF THE RIGHTS ISSUE THAT WAS JUST MENTIONED BY COUNSEL.
KUBLG OF POINTS ON THAT. AGAIN, LET'S KEEP THIS IN PERSPECTIVE. WE ARE
TALKING ABOUT ONE POSITION IN ONE INDUSTRY, OKAY? WE ARE TALKING ABOUT PRESERVING THE
AT A TIME TUS STATUS QUO IN TERMS OF PRACTICALLY HOW THESE RELATIONSHIPS HAVE BEEN DEFINED
FLOOR 80 YEARS, LOCATION? OF THIS IS NOT LIKE, AS KOUN SAID SAID, THIS ISN'T THE GIG
ECONOMY THIS IS NOT YEW BER DRIVERS, THIS SOMETHING THAT'S BEEN IN PLACE FOR A LONG
TILE AND IT'S WORKED VERY, VERY WELL AND WHAT THE, WHAT THE LEGISLATURE DID IS OF ET SAID
LISTEN, WE ARE GOING TO IMPOSE CONTROLS ON BROKERS IN ORDER TO PROTECT CONSUMERS, BUT
WE WANT TO PRESERVE THE INDEPENDENT KROOKT TORE RELATIONSHIP. SO WHAT WE'VE DONE IS WE'VE
SET UP A BRIGHT LINE TEST TO DO THAT, BECAUSE APPLYING THE ABC TEST OR FRANKLY APPLYING
ALMOST ANY TEST THAT WOULD LOOK AT, YOU KNOW, FACTORS OF EMPLOYMENT WOULD BE INKIFRT AN
WITH PRESERVING THAT RELATION SHP BECAUSE THE BROKERS ACT REQUIRES US TO, REQUIRES BROKERS
TO CONTROL REAL ESTATE SALESPEOPLE FOR THE PURPOSES OF PROTECTING CONSUMERS. SO THE
BRIGHT LINE TEST SHOULD BE APPLIED, THE LEGISLATION IS CRYSTAL CLEAR AND WE ASK THE
COURT ENFORCE THE CONTRACT THAT MR. KENNEDY AND WEICHERT ENTERED WHICH PROVIDED FOR A
INDEPENDENTS CONTRACTOR RELATIONSHIP. CHIEF JUSTICE RABNER: THAUVENLTH I
HOPE THAT IT CAME ACROSS THAT WE WERE TOUGH AN EVERYONE WITH RESPECT TO TIME. AND THAT WAS
ONLY REFLECTION OF HOW MANY HOURS THERE ARE IN A DAY RGS THANK YOU KOUN SORE VERY HAD THAT
DULL ARMG R WE'LL TAKT MATTER UNDER ADVISEMENT.