Your Hometown Title, LLC v. New Jersey Department of Labor and Workforce Development

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1168-21

YOUR HOMETOWN TITLE, LLC,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF
LABOR AND WORKFORCE
DEVELOPMENT,

Respondent-Respondent.
_______________________________

Argued January 16, 2024 – Decided January 31, 2024

Before Judges Mawla, Marczyk, and Chase.

On appeal from the Department of Labor and
Workforce Development, Docket No. DOL-20-007.

Adam Edward Gersh argued the cause for appellant
(Flaster Greenberg, PC, attorneys; Adam Edward
Gersh, on the briefs).

Achchana C. Ranasinghe, Deputy Attorney General,
argued the cause for respondent (Matthew J. Platkin,
Attorney General, attorney; Donna Sue Arons,
Assistant Attorney General, of counsel; Achchana C.
Ranasinghe, on the brief).
 Alan Lee Poliner argued the cause for amicus curiae
New Jersey Land Title Association (Davison, Eastman,
Muñoz, Paone, PA, attorneys; Alan Lee Poliner, on the
brief).

PER CURIAM

Petitioner Your Hometown Title, LLC ("YHT") appeals from a November

8, 2021 final administrative action of the Commissioner of the Department of

Labor and Workforce Development ("DOL") finding YHT responsible for

contributions under the New Jersey Unemployment Compensation Law

("UCL"), N.J.S.A. 43:21-1 to -71, between 2015 and 2018. Based on our review

of the record and applicable legal principles, we affirm.

I.

YHT is a company that issues title insurance for property. It also provides

real estate settlement services and "closings." In September 2018, the DOL

audited YHT to determine whether it complied with the UCL by making

appropriate contributions to the unemployment compensation and state

disability benefit funds for the period between January 1, 2015 and December

31, 2018.

The audit revealed there were twelve individuals classified as independent

contractors who should have been classified as employees, including title

A-1168-21
2
abstractors, notaries, closers, and a cleaner. In August 2019, the DOL sent YHT

a letter assessing $6,576.88, along with applicable interest and penalties, for

unpaid contributions to the unemployment and disability funds because of the

misclassification. The DOL later amended the assessment to $6,065.88.

In September 2019, YHT advised the DOL it was contesting the

assessment and requested a hearing. The DOL referred the matter to a

redetermination auditor who affirmed the assessment. YHT appealed the

determination, and the case was transmitted to the Office of Administrative Law

for a hearing before an administrative law judge ("ALJ").

In June 2021, the ALJ issued an initial decision. The ALJ found YHT did

not satisfy the ABC test 1 regarding one of the twelve individuals, Helen

Madrigali, who was a notary. The ALJ found Madrigali sometimes worked at

YHT's office and received most of her income from YHT. The other eleven

individuals were found to be independent contractors.

On November 8, 2021, following a de novo review of the record, the

Commissioner issued a final administrative action. He agreed with the ALJ that

Madrigali was an employee of YHT during the audit period, however, he

1
As discussed below, the UCL sets forth the so-called ABC test for evaluating
whether workers are employees or independent contractors. N.J.S.A. 43:21-
19(i)(6)(A) to (C).
A-1168-21
3
rejected the ALJ's determination as to the other eleven individuals. He found

YHT did not meet the ABC test for any of the twelve individuals, and therefore,

they were employees misclassified as independent contractors.

Under prong A of the ABC test, the Commissioner found YHT failed to

meet its burden for the agents whose services it engaged during the audit period,

in part because of an "Independent Vendor Services Agreement," "Vendor

Services Agreements," "Witness Only Closer Instructions," and "Notary Signing

Agent Code of Conduct." He also relied on the testimony of multiple witnesses

who confirmed YHT had a degree of control over the agents, which he found

"consistent with an employment relationship and belie[d YHT's] assertion that

these individuals were free from control or direction by YHT."

The "Independent Vendor Services Agreement" that closers, notaries, and

title abstractors were required to sign as a condition of performing services for

YHT stated they were required to: "complete tasks in strict compliance" with

YHT's "instructions and parameters"; "perform services" for YHT "within the

specific time frame set forth" in YHT's instructions; advise YHT of "any

inability or failure to complete any assignment as per the instructions provided"

by YHT "immediately upon such inability or failure to complete any

assignment"; maintain "errors and omissions insurance coverage in an amount

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of not less than $1,000,000.00 per occurrence"; "not respond to, or take, any

assignment to perform services hereunder unless" they could "perform such

services in the time frame specified" and to "remain in contact with [YHT]

regarding the status of services being performed"; "thoroughly read the Notary

Signing Agent Code of Conduct" and "agree[] to adhere, abide and be bound"

by same if they "provide[] notary or related services"; and shall "not assign or

subcontract this Agreement or any rights or obligations hereunder without the

prior written consent" of YHT.

Further, the Commissioner noted the "Vendor Services Agreement . . .

contains instructions regarding the performance of the job for which the

individual is being engaged by YHT[.]" For example, the "Vendor Services

Agreement" for title abstractors contains: instructions regarding what the

abstractor must report about the subject property; requirements for performing

searches on prior owners of the subject property; how to submit reports of chain

of title; what documents are required to be included in the search report; a

minimum span of years to search for title documents; and a requirement to check

for open mortgages and judgments.

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5
 Further, the services agreement for closers includes a document titled

"Instructions for Witness Only Closer[s,]" which contains the following

guidelines:

(1) "Maintain professionalism at all times. The
dress code expected is 'business casual;'"

(2) "Contact customer prior to arrival to confirm
your identity and time of arrival;"

(3) "Provide your photo ID to the customer to
verify your identity;"

(4) "Obtain customer photo ID and complete
information on the provided form;"

(5) "Have borrower(s) sign off on all judgments.
If any belong to borrower(s), please call office
immediately;"

(6) "Collect balance due on settlement sheet.
Payments must be via a certified check made payable
to Surety Title Company, LLC. Contact Surety Title
Company, LLC for approval of personal check;"

(7) "Have borrower(s) fill out marital history on
Affidavit of Title and please notarize this document;"

(8) "Advise borrower(s) that in most cases, it is
the policy of Surety Title Company, LLC to send credit
card payments directly to them for forwarding to their
creditors;"

(9) "Have all borrower(s) sign all documents in
the mortgage package EXACTLY as their names
appear on the documents. Do not initial pages unless

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6
 there is a place on the page for initials, in which case
borrowers must initial;"

(10) "Non-borrowing spouse must sign the
Mortgage, Right-to-Cancel, Truth-In-Lending and
Itemization of Amount Financed;"

(11) "Please keep package in the order received
and return in that order;" and

(12) "Return package to our office in UPS
envelope provided as soon as possible. Closings
scheduled prior to 6PM must be sent out on the day of
signing."

Additionally, the Commissioner noted, notary signing agents are required

to sign a document titled "Notary Signing Agent Code of Conduct," which

required the signing agents to agree to the "attached code of conduct and that

the . . . Code of Conduct is incorporated into the Vendor Services

Agreement . . . ."

The Commissioner found the above clauses reflect a "substantial degree

of control" over the individual engaged with YHT. He found the fact the

documents expressly state the individual engaged "shall" complete tasks "in

strict compliance" with YHT's "instructions and parameters," which are

enumerated in detail in the instructions, indicates a degree of direction and

control inconsistent with the relationship between an independent contractor and

a party that has engaged their services. The Commissioner rejected YHT's

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7
contention that the instructions and vendor services agreements are simply

industry "best practices" and should not be considered indicia of control. He

noted the decision to impose these requirements—regardless if they reflect best

practices—at YHT's sole discretion without any input from the closers, notaries,

or title abstractors, coupled with the substantive provisions in these documents,

is the "very essence of direction and control." Therefore, the Commissioner

determined YHT failed to satisfy prong A.

The Commissioner also found YHT failed to meet its burden on prong B

regarding the closers and notary signing agents. He found it did not establish

the services provided to YHT by the individuals,

namely preparing closing documents, witnessing the
signing of closing documents and executing post-
closing requirements during real estate closings
conducted at the location of YHT's clients, was either
outside the usual course of business . . . or that such
service was performed outside of all the places of
business of the enterprise for which such service was
performed.

He noted the Court in Carpet Remnant Warehouse, Inc. v. New Jersey

Department of Labor defined "places of business" to mean "those locations

where the enterprise has a physical plant or conducts an integral part of its

business." 125 N.J. 567, 592 (1991). He found because one of the principal

components of YHT's business is providing services during closings, the client

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locations where services are performed are locations where YHT performs "an

integral part of its business." Similarly, the performance of those services was

performed within YHT's "usual course of business."

The Commissioner found YHT met its burden on prong B regarding the

title abstractors. Although the abstractors' work is clearly within YHT's usual

course of business, the Commissioner found "it is unfair to characterize the

County Clerk's office, where [t]itle [a]bstractors perform abstracting services

for YHT, as among YHT's places of business."

The Commissioner noted in order to satisfy prong C, YHT needed to prove

"by a preponderance of the credible evidence with regard to each [c]loser,

[n]otary [s]igning [a]gent[,] and [t]itle [a]bstractor whose services it engaged

during the audit period that that individual was[,] during the audit period[,]

customarily engaged in an independently established business or enterprise (not

multiple employment)." Pursuant to Carpet Remnant, this meant

relative to each [c]loser, [n]otary [s]igning [a]gent[,]
and [t]itle [a]bstractor whose services YHT engaged
. . . it must address the duration and strength of each
individual's business during that period, the number of
customers and their respective volume of business
during that period, the number of employees of the
individual's business or enterprise during that period,
the extent of each individual's business resources
during that period and, perhaps most importantly, the
amount of remuneration each individual received from

A-1168-21
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 YHT during that period compared to that received from
others.

The Commissioner found YHT met its burden for all the individuals, with

the exception of Madrigali. He explained the closers, notaries, and title

abstractors engaged in "legitimate independent business enterprises . . . without

employees and without much in the way of 'tools, equipment, vehicles and

similar resources.'" He further noted these individuals engaged by YHT only

earned between one and twenty-eight percent of their Schedule C income in their

roles at YHT during the audit period and the balance of their income from other

clients. Further, "[t]hese individuals held themselves out as being available to

perform the subject services on a fee-for-service basis and performed those

services for multiple clients over the course of multiple years during the audit

period." On the other hand, Madrigali received eighty-eight percent of her

Schedule C income from YHT.

As for Saida Yusupova, who provided cleaning services for YHT, the

Commissioner found YHT met its burden as to prongs A and B, but not prong

C. He noted YHT merely submitted a single invoice, and no other evidence, to

suggest she provided cleaning services for other clients. Noting that it was

A-1168-21
10
YHT's burden 2 to prove Yusupova was an independent contractor, he observed

YHT failed to rebut the presumption of employment that arose when the

individual's services were provided for remuneration.

The Commissioner dismissed YHT's appeal, and it was ordered to remit

$6,065.88 to the DOL for the years 2015 through 2018 in unpaid unemployment

and disability contributions, along with applicable interest and penalties. This

appeal followed.

II.

A.

YHT argues it presented sufficient evidence proving the individuals it

engaged for work met the ABC test. It relies on East Bay Drywall, LLC v.

Department of Labor and Workforce Development, 467 N.J. Super. 131, 150-51

(App. Div. 2021), where we addressed prong A as follows:

Among other things, we find noteworthy the ability of
the installers to decline proposed projects offered by
East Bay, the absence of significant direction and
supervision by East Bay at the job sites, the autonomy
of the installers in deciding how many workers to enlist
to complete the work, and the installers' furnishing of
their own tools and equipment while East Bay supplied
the drywall and materials.

2
The DOL unsuccessfully attempted to obtain Yusupova's tax returns, but it
was not its burden to prove she was not customarily engaged in an independently
established trade.
A-1168-21
11
Though East Bay was reversed,3 YHT contends this reversal was based on prong

C and this court's prong A and B analysis was not reversed.

YHT also likens this case to the facts in Trauma Nurses, Inc. v. New Jersey

Department of Labor, because it argues the testimony showed all the individuals

could accept or decline assignments, were not subject to any material "direction

and supervision," and had autonomy on how to complete their work. 242 N.J.

Super. 135, 147 (App. Div. 1990). Further, the individuals set their own pricing

and profited from their own businesses.

YHT argues the agreements upon which the Commissioner relied were not

implemented until 2017, despite the fact that the DOL challenges the contractor

status of the individuals for years 2015-2016. Moreover, John DeSantis, vice

president of finance for Surety (the company that owns YHT), testified the

standards set forth in the documents simply reiterate industry standards. YHT

concedes the agreement included a required dress code but contends "it did not

impose a dress code or have any material control over how the work was done."

YHT argues the requirement that individuals engaged in work with the

company maintain insurance demonstrates they operate a separate business. As

3
East Bay Drywall, LLC v. Dep't of Labor & Workforce Dev., 251 N.J. 477
(2022).
A-1168-21
12
DeSantis testified, if a title policy becomes the subject of litigation, frequently

all businesses involved in the transaction may be named. YHT asserts it was

merely making sure the individuals had sufficient insurance so that it would not

be the only defendant in such an action. YHT contends the above facts

demonstrate it met prong A, and the workers at issue are not employees.

As to prong B, YHT argues all work was performed exclusively outside

of its place of business. Because prong B can be proven by either showing the

service is outside of the usual course of business or that it is performed outside

of the places of business of the enterprise for which the service is performed,

YHT contends the Commissioner's conclusion that conducting closings and

abstracting titles outside of the office is integral to YHT's business is not legally

dispositive. YHT states it does not offer these services to the public but hires

vendors to perform the service for it so it can, in turn, sell title insu rance. It

further contends it hires other outside companies to conduct judgment searches,

but that type of service is also outside the scope of its business.

With respect to prong C, YHT argues the Commissioner erred in finding

Madrigali and Yusupova did not meet the standard under the ABC test.

Madrigali testified she eventually began working nearly exclusively with YHT

and turning down other assignments, but YHT contends this was her choice

A-1168-21
13
based on mere preference, and Madrigali still took assignments from other

companies when she worked more.

YHT argues that even though Yusupova performed her work onsite, she

did not perform work integral to YHT's business. Yusupova had her own

business "and was not even available to clean other offices for YHT affiliates

because she had so many other clients."

Amicus curiae New Jersey Land Title Association ("NJLTA") argues the

Commissioner misapplied the facts in pursuit of a new agenda of the DOL.4

NJLTA asserts the Commissioner's final decision came months after these bills

became law, and therefore "it seems that policy (or political) considerations got

in the way of an objective assessment of the facts in this case."

NJLTA argues the Commissioner substituted his judgment for that of the

ALJ without factual support, and therefore no deference should be given to his

final decision. It further asserts the Commissioner relied on the "Notary Signing

4
NJLTA points to legislation enacted in July 2021 to "crack down" on
employers who misclassify independent contractors as employees. Specifically,
it references Pub. L. 2021, ch. 165 ("AN ACT concerning enforcement of
various laws regarding employee misclassification"); Pub. L. 2021, ch. 166
("AN ACT concerning the establishment of the 'Office of Strategic Enforcement
and Compliance' in the Department of Labor and Workforce Development");
and Pub. L. 2021, ch.167 ("AN ACT concerning employee misclassification and
insurance fraud").
A-1168-21
14
Agent Code of Conduct," which was not part of the record. That code only

refers to standards of honesty and fidelity. It asserts industry standards and

codes of conduct are not the same as instructions. It further argues the

Commissioner's reliance on same is arbitrary and capricious.

NJLTA contends the Commissioner gave too much weight to portions of

the "Independent Vendor Services Agreement" clauses and disregarded the

ALJ's evaluation of this agreement. NJLTA asserts the clauses in the agreement

pertaining to time frames to complete an assignment represent a deadline which

is out of the title agent's control. It notes the buyer and seller of a property have

a contract with a set date to close the sale, and if the date is not met, the sale can

be canceled. Thus, this time frame is not controlled by YHT.

NJLTA argues the clause prohibiting assignment or subcontracting of the

work supports independent contractor status as well. This clause merely

prevents individuals in the profession, chosen to do the work, from assigning

the work to another with lesser or unknown qualifications and experience.

NJLTA asserts the Commissioner made superficial conclusions by focusing on

language in the contractor agreements such as "instructions" and "parameters."

It argues the final decision chooses form over substance, though it is clear the

instructions or parameters refer to "what to do" rather than "how to do it."

A-1168-21
15
 NJLTA also argues the ABC test was met. It argues prong A was satisfied

because the closers, notaries, and abstractors are free from control or direction

from YHT, primarily for the reasons found by the ALJ. Further, they point to

the Supreme Court's statement in East Bay that "a certificate of insurance could

be a significant indication of independence because an employer is generally not

vicariously liable for the negligent acts of the contractor in the performance of

the contract, . . . and insurance policies issued to employers often exclude

coverage for the acts of independent contractors." 251 N.J. at 499 (internal

quotation omitted). Here, NJLTA argues employee status is negated by virtue

of the individuals carrying their own insurance.

As to prong B, NJLTA contends the Commissioner incorrectly found that

the principal components of YHT's business are providing notary and closing

services. It argues the principal business of YHT, and all title agents, is

providing title insurance. The services provided by these individuals are merely

ancillary to the insurance service. Because the services are not an integral part

of YHT's business, NJLTA contends the closing and notary services performed

outside of YHT's location meet prong B. 5

5
Because the Commissioner found prong C was met for all of the closers, notary
signing agents (except Madrigali), and title abstractors, NJLTA did not address
this prong.
A-1168-21
16
 The DOL counters the Commissioner properly held YHT failed to meet

prong A's requirements for the title abstractors, notaries, and closers and that the

agreement he relied upon in coming to this conclusion had ample support. Not

only did all the individuals engaged by YHT sign the agreement, they were also

required to adhere to role-specific addendums to the agreement which contained

specific "instructions and parameters" they were required to comply with. As

such, the DOL argues the degree of YHT's control over the abstractors, notaries,

and closers meets the "some level of control" standard for prong A established

in Carpet Remnant, 125 N.J. at 582-83, and Hargrove v. Sleepy's, LLC., 220

N.J. 289, 305 (2015).

The DOL asserts that although YHT argues the instructions given to the

engaged individuals reflect industry standards in practice, this contention

ignores the fact YHT still elected to adopt the instructions, thereby mandating

compliance with them as a condition of providing services for YHT. Moreover,

the instructions adopted by YHT are not codified in the New Jersey

Administrative Code, and they are neither authoritative nor required. Rather,

requiring the individuals to comply with these instructions was a means of

exercising control over the way they perform jobs. As such, the DOL argues

YHT failed to meet the burden under prong A.

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 The DOL further argues YHT did not meet its burden under prong B as to

the notaries and closers. It argues the subject notaries and closers provide the

same services as YHT's "internal closers" and therefore, it is within the "usual

course" of business of YHT. Though the closers and notaries here perform

closing services at client locations, it is an integral part of its business under

Carpet Remnant, 125 N.J. at 592. As such, the DOL argues the Commissioner

correctly found prong B was not met by YHT.

B.

The scope of our review is narrow. Appellate courts review decisions

"made by an administrative agency entrusted to apply and enforce a statutory

scheme under an enhanced deferential standard." East Bay, 251 N.J. at 493

(citing Hargrove, 220 N.J. at 301-02). That enhanced deference stems, in part,

from "the executive function of administrative agencies . . . ." Mazza v. Bd. of

Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 25 (1995). "An agency's

determination on the merits 'will be sustained unless there is a clear showing

that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the

record.'" Saccone v. Bd. of Trs., Police & Firemen's Ret. Sys., 219 N.J. 369,

380 (2014) (quoting Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J.

14, 27 (2011)). The reviewing court "does not substitute its judgment of the

A-1168-21
18
facts for that of an administrative agency." Campbell v. N.J. Racing Comm'n,

169 N.J. 579, 587 (2001) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575,

587 (1988)). Rather, the reviewing court "defer[s] to matters that lie within the

special competence" of the administrative agency. Balagun v. N.J. Dep't of

Corr., 361 N.J. Super. 199, 202 (App. Div. 2003) (internal citation omitted).

The party challenging the administrative action bears the burden of making that

showing. Lavezzi v. State, 219 N.J. 163, 171 (2014).

On appeal, the judicial role in reviewing an administrative action is

generally limited to three inquires:

(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law;

(2) whether the record contains substantial evidence to
support the findings on which the agency based its
action; and

(3) whether in applying the legislative policies to the
facts, the agency clearly erred in reaching a conclusion
that could not reasonably have been made on a showing
of the relevant factors.

[Allstars Auto Grp., Inc. v. N.J. Motor Vehicle
Comm'n, 234 N.J. 150, 157 (2018) (quoting In re
Stallworth, 208 N.J. 182, 194 (2011)).]

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"When an agency's decision meets those criteria, then a court owes substantial

deference to the agency's expertise and superior knowledge of a particular field."

In re Herrmann, 192 N.J. 19, 28 (2007). 6

Turning to substantive legal principles, the statutory framework at issue

in this appeal, the UCL, N.J.S.A. 43:21-1 to -71, "was designed to act as a

cushion 'against the shocks and rigors of unemployment.'" East Bay, 251 N.J.

at 494 (quoting Carpet Remnant, 125 N.J. at 581). Whether a putative employer

is required to pay into an unemployment benefits fund under N.J.S.A. 43:21 -7,

turns on whether its workers are employees or independent contractors. Id. at

484-85. Importantly, "[b]ecause the statute is remedial, its provisions have been

construed liberally, permitting a statutory employer-employee relationship to be

found even though that relationship may not satisfy common-law principles [of

6
Furthermore, "where there is substantial evidence in the record to support
more than one regulatory conclusion, it is the agency's choice which governs."
In re Adoption of Amends. to Ne., Upper Raritan, Sussex Cnty., 435 N.J. Super.
571, 583 (App Div. 2014) (quoting Murray v. State Health Benefits Comm'n,
337 N.J. Super. 435, 442 (App. Div. 2001)). "If the Appellate Division is
satisfied after its review that the evidence and the inferences to be drawn
therefrom support the agency head's decision, then it must affirm even if the
court feels that it would have reached a different result itself." Id. at 584
(quoting Clowes, 109 N.J. at 588).

A-1168-21
20
employment]." Id. at 494 (second alteration in original) (quoting Carpet

Remnant, 125 N.J. at 581).

The UCL sets forth the ABC test for making that determination. Id. at

495; N.J.S.A. 43:21-19(i)(6)(A) to (C). Any service performed for renumeration

under any express or implied contract is presumed to be employment unless the

ABC test is satisfied. East Bay, 251 N.J. at 495. The statutory test reads:

Services performed by an individual for renumeration
shall be deemed to be employment . . . unless and until
it is shown to the satisfaction of the division that:

(A) Such individual has been and will
continue to be free from control or
direction over the performance of such
service, both under his contract of service
and in fact;

(B) Such service is either outside the usual
course of the business for which such
service is performed, or that such service is
performed outside of all the places of
business of the enterprise for which such
service is performed; and

(C) Such individual is customarily engaged
in an independently established trade,
occupation, profession or business.

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

Because the statutory ABC test is formulated in the conjunctive and

presumes that services for renumeration constitute employment, the party

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21
challenging the DOL's determination of an employer-employee relationship has

the burden of "establish[ing] the existence of all three criteria." East Bay, 251

N.J. at 495 (quoting Carpet Remnant, 125 N.J. at 581) (emphasis added). The

ABC test "is fact-sensitive, requiring an evaluation in each case of the substance,

not the form, of the relationship." Id. at 496 (quoting Carpet Remnant, 125 N.J.

at 581). "The factfinder must look beyond the employment contract and the

payment method to determine the true nature of the relationship." Ibid.

Prong A, known as the "control test," requires proof "that the provider of

services 'has been and will continue to be free from control or direction over the

performance of such services.'" Carpet Remnant, 125 N.J. at 582 (quoting

N.J.S.A. 43:21-19(i)(6)(A)). "The person must establish not only that the

employer has not exercised control in fact, but also that the employer has not

reserved the right to control the individual's performance." Ibid.

Here, the Commissioner reasonably classified the closers, notary signing

agents, and title abstractors as employees of YHT, rather than as independent

contractors, under the ABC test. With respect to prong A, the record

substantiates the Commissioner's finding that individuals at issue were subject

to a sufficient degree of control to be classified as employees. For example,

YHT's instructions for the title abstractors were detailed in nature and provided

A-1168-21
22
specific directions for addressing open or unsatisfied mortgages or deeds of trust

to institutional lenders; when to perform a search on the prior owner of a

property; when to perform a "bring-down" search; and what must be included in

a chain of title search. Specific corresponding instructions were also provided

for witness-only closers. All of these tasks were required to be completed "in

strict compliance" with YHT's "instructions and parameters."

YHT argues the agreements upon which the Commissioner relied were not

implemented until 2017, despite the DOL challenging the contractor status for

the subject individuals for years 2015-2016. However, the Commissioner did

not just rely on these documents. The Commissioner noted he relied on "the

testimony of witnesses confirming the practices of YHT" and "reflect[ing] a

degree of control over the [c]losers, [n]otary [s]igning [a]gents, and [t]itle

[a]bstractors that is consistent with an employment relationship and belies

[YHT's] assertion that these individuals were free from control or direction by

YHT." Moreover, YHT bears the burden under the statute to satisfy the ABC

test, and there is no indication that its guidelines or requirements for the

individuals at issue were materially different in the years 2015 to 2016 despite

the lack of a prior written agreement.

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 Furthermore, we recognize YHT and NJLTA have advanced arguments in

support of prong A, such as the workers' ability to decline assignments, set their

own prices, and furnish their own equipment. However, "[i]n establishing

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

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

sufficient." Hargrove, 220 N.J. at 305. Moreover, our role is not to assess prong

A or the other prongs de novo. That is, we do not substitute our judgment for

that of the Commissioner. Campbell, 169 N.J. at 587 (citation omitted). Rather,

we must determine if YHT has made a clear showing the Commissioner acted

in an arbitrary, capricious, or unreasonable manner or that its decision lacked

fair support in the record. Saccone, 219 N.J. at 380 (quoting Russo, 206 N.J. at

27). We are unconvinced YHT has made such a showing.

The facts in Trauma Nurses are distinct from this case. The employer

there was akin to an agency who provided nurses to hospitals on a temporary

basis. 242 N.J. Super. at 137. The nurses there were not obligated to adhere to

a specific set of rules imposed by their employer, but rather they were required

to comply with the policies and procedures of the institution where they were

placed. Id. at 144-45. Here, the workers were required to comply with YHT's

specific vendor services agreement and "instructions and parameters"

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implemented by YHT, not an outside institution. These requirements imposed

on the workers by YHT support the ALJ's determination that the workers were

employees, not independent contractors.

We further observe that both YHT and NJLTA rely on the ALJ's analysis

of the facts and legal conclusions. However, those findings are not binding on

the Commissioner. In re Adoption of Amends., 435 N.J. Super. at 587. The

Commissioner's findings as to prong A were not plainly unreasonable and were

based on substantial evidence, and we must defer to those findings when

supported by the record, which was the case here.

Given our conclusion YHT failed to satisfy prong A, we need not address

the Commissioner's analysis as to prongs B and C regarding the closers, notary

signing agents, and title abstractors. We do briefly address prong C as it applies

to Yusupova. Although YHT claimed Yusupova had her own business, the

Commissioner determined YHT failed to submit sufficient evidence to rebut the

presumption of employment. Despite YHT having the burden to prove prong C

as to Yusupova, the DOL attempted to secure her tax returns to evaluate her

employment status. Those efforts were unsuccessful. The Commissioner noted

the DOL did not have to establish that Yusupova was customarily engaged in an

independently established trade. That was YHT's burden. YHT's failure to

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demonstrate her "UCL-exempt status" was fatal to YHT's attempt to establish

prong C. The Commissioner's finding that Yusupova did not meet the prong C

test was also supported by the record and was not arbitrary or capricious.

We discern no basis to disturb the Commissioner's conclusions in this

matter. To the extent we have not otherwise addressed them, all other arguments

raised by the parties on appeal lack sufficient merit to warrant discussion. R.

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

Affirmed.

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