JAMES KENNEDY, II VS. WEICHERT CO., ETC. (L-2266-19, ESSEX COUNTY AND STATEWIDE) - Published

          Plaintiff, a fully commissioned real estate salesperson, alleged on behalf of himself and a putative class of those similarly situated that defendant, a licensed real estate broker, had violated the Wage Payment Law (WPL), N.J.S.A. 34:11-4.1 to -4.14.  This court's prior opinion, Kennedy v. Weichert Co., No. A-0518-19 (App. Div. July 2, 2021), affirmed the trial court's order:  denying defendant's motion to dismiss for failure to state a claim; and declaring pursuant to Hargrove v. Sleepy's, LLC, 220 N.J. 289, 302 (2015), that the "ABC test," N.J.S.A. 43:21-19(i)(6)(A), (B), and (C), applied to determine plaintiff's employment status as an employee or independent contractor.

         The Supreme Court granted defendant's motion for leave to appeal but then remanded the matter for this court to consider recent amendments to the Real Estate Brokers and Salesmen Act (the Brokers Act), N.J.S.A. 45:15-1 to -29.5, enacted after this court's prior opinion.

         On remand, the court concluded the recent amendments foreclosed application of the ABC test to determine the employment status of fully commissioned real estate salespersons.  The court also concluded that pursuant to binding precedent from the Court, the written agreement between the parties did not, as a matter of law, define plaintiff's status.  See, e.g., MacDougall v. Weichert, 144 N.J. 380, 388 (1996).

         However, given the paucity of the record, the court declined to adopt a specific test to apply in deciding plaintiff's status pending "the development of a more complete record that permits exposition of the actual business relationship between the parties."