NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0592-24
NISHA SANGER,
Plaintiff-Appellant,
v.
NEXT LEVEL BUSINESS SERVICES, INC., COGNIZANT TECHNOLOGY SOLUTIONS COMPANY, NN SRINIVAS, AARTI CHOPRA, SHRUTI SINGH, and NIKHIL ANAND,
Defendants-Respondents,
and
AYAN SAHA,
Defendant. ____________________________
Argued March 2, 2026 – Decided March 26, 2026
Before Judges Sabatino, Walcott-Henderson and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1274-20. Michael K. Fortunato argued the cause for appellant (Brandon J. Broderick, LLC, attorneys; Michael K. Fortunato, of counsel and on the briefs).
D. Lewis Clark Jr. (Squire Patton Boggs (US) LLP) of the Arizona bar, admitted pro hac vice, argued the cause for respondents Next Level Business Services, Inc., Nikhil Anand, and Shruti Singh (Squire Patton Boggs (US) LLP, attorneys; Mark C. Errico, D. Lewis Clark Jr., and Melissa Legault (Squire Patton Boggs (US) LLP) of the Arizona bar, admitted pro hac vice, of counsel and on the briefs).
Ivan R. Novich argued the cause for respondents Cognizant Technology Solutions Company, NN Srinivas, and Aarti Chopra (Littler Mendelson, PC, attorneys; Ivan R. Novich and Rachel Simone Frey, on the briefs).
PER CURIAM
In this employment discrimination case, plaintiff Nisha Sanger appeals
from a July 19, 2024 order granting summary judgment in favor of defendants
Next Level Business Services, Inc. ("NLB"), Cognizant Technology Solutions
Company ("Cognizant"), and individually-named employees of both entities.1
Plaintiff's complaint alleged sexual harassment and race and gender
discrimination based on conduct exhibited by defendants' employees. The court,
1 On September 30, the court also granted plaintiff's motion for summary judgment dismissing defendant Chopra's counterclaims for emotional distress against plaintiff, which is not before us. A-0592-24 2 however, found plaintiff was an independent contractor and not an employee of
defendants Cognizant or NLB, and thus could not substantiate her discrimination
claims under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A.
10:5-1 to -50. The court also subsequently denied reconsideration. For the
reasons that follow, we affirm both orders.
I.
We glean the relevant facts from the parties' briefs and Rule 4:46-2
statements submitted to the motion court, viewing the evidence in the light most
favorable to plaintiff as the non-movant. Harz v. Borough of Spring Lake, 234
N.J. 317, 329 (2018).
Plaintiff is an experienced recruiter of technology professionals who
matches qualified applicants to various positions in technology companies.
According to plaintiff, she handles the entire recruitment process, identifying
candidates through placement, including "calling candidates, matching them
with job opportunities, and handling all aspects of the recruitment process." At
all times relevant to this matter, plaintiff also owned her own company,
Mirosoft, which she started in 2018 to provide recruiting services to technology
companies.
A-0592-24 3 According to plaintiff, in 2019, an employee of Cognizant—an
information technology services and consulting company—who was familiar
with her work contacted her to inquire whether she would be interested in a
position with the company.2
At all times relevant to this appeal, NLB, also an information technology
consulting and staffing solutions company, provided recruitment services to
Cognizant. Plaintiff's point of contact at NLB was Shruti Singh, its Manager of
Client Relations, who was based in India and reported to Nikhil Anand, NLB's
Senior Vice-President of Operations.
The record reflects that plaintiff was interviewed by a member of
Cognizant's recruiting team in early 2019. On February 6, 2019, NLB and
Mirosoft executed an agreement ("Agency Agreement") pursuant to which
Mirosoft agreed to provide recruiting services to NLB. As set forth in the
provision entitled "Engagement and Duties," the agreement states that "upon the
terms and subject to the conditions of this Agreement, NLB [] hereby engages
Agency to provide Consultants to NLB [] to assist in the creation of [all work
product]."
2 The parties do not agree on whether plaintiff applied for a position at Cognizant and NLB or was recruited by them. A-0592-24 4 The Agency Agreement further sets forth key terms addressing the
required services, payment, and classification of Mirosoft-supplied personnel as
independent contractors, not employees. Section seven of the Agency
Agreement is instructive on this point and provided in relevant part:
7. Independent Contractor.
Personnel supplied by [a]gency [(Mirosoft)] are deemed be employees or contractors of [a]gency and will to not, for any purpose, be considered employees, subcontractors or agents of NLB []. Agency will be solely responsible for complying with all tax and employee protection laws. Agency assumes full responsibility for the actions of its employees while performing services. Agency will be responsible for the payment to its employees of salary, including withholding of income taxes, Social Security, Workers Compensations, Disability Benefits, and the like.
The Agreement further provided that either party could terminate the
agreement by providing two weeks' written notice or that NLB could terminate
immediately without notice if "any contract under which [Mirosoft] is providing
[c]onsultants to NLB . . . is terminated or reduced in scope for any reason ."
The agreement also provided that any future work performed by Mirosoft
would be governed by purchase orders specifying the scope of the services to be
performed and required Mirosoft to submit "client approved time sheets" for the
services rendered. The Agreement likewise provided that Mirosoft would not
A-0592-24 5 claim payment for more than forty hours of work per week and that
compensation for those services would be paid by NLB to Mirosoft, rather than
to plaintiff individually.
Other written agreements followed, including a purchase order specifying
the terms of payment between Mirosoft and NLB. One such purchase order,
dated February 6, 2019, stated plaintiff would be assigned to work for Cognizant
at a "Consulting Rate" of fifty-five dollars per hour for a "[p]roject duration" of
twelve months "with possible extensions," and included terms regarding
payment. In particular, the purchase order provided that Mirosoft would be
required to submit monthly approved timesheets to Cognizant, after which
Cognizant would pay NLB for the services, and NLB would then issue payment
to Mirosoft.
Plaintiff and Cognizant entered into a separate, undated agreement
("Consultant Agreement"), which required plaintiff to "provide certain
consulting, technology related services, and/or other work" as detailed in the
purchase order. The Consultant Agreement further provided that plaintiff would
"not receive, or be eligible to receive, any compensation directly from
Cognizant." As to plaintiff's employment status, the Consultant Agreement
stated, in relevant part:
A-0592-24 6 1. Engagement.
Cognizant, in accordance with the terms of the Agency Agreement . . . , dated February 15, 2008 by and between Cognizant and [NLB] Consultant as an independent contractor to provide certain consulting, technology related services, and/or other work more specifically identified in a purchase order executed by Cognizant and Agency . . . .
....
Consistent with [c]onsultant's independent contractor status, [c]onsultant acknowledges and agrees that: (i) it is an independent contractor of Cognizant; (ii) nothing is this [a]greement is intended to or will be construed to create an . . . employment relationship between Cognizant and [c]onsultant; . . . (v) [c]onsultant shall not represent directly or indirectly that [c]onsultant is an employee of Cognizant; (v) [c]onsultant is an employee solely of [a]gency or [a]gency's subcontractor and will not be considered an employee of Cognizant for any purpose including (1) payment of salary, benefits, or other compensation, (2) federal, state or local tax, employment, withholding or reporting purposes, or (3) eligibility or entitlement to any benefit under any of Cognizant's employee benefit plans . . . ; (vii) Cognizant shall have no responsibility for any employer-related functions of Consultant, including supervising, disciplining, discharging, reviewing, evaluating, and setting the pay rates of Consultant; . . . .
Plaintiff could not participate in Cognizant's benefit plans, and Cognizant
had "no responsibility for any employer-related functions . . . including
A-0592-24 7 supervising, disciplining, discharging, reviewing, evaluating, and setting the pay
rates" for plaintiff's work. This Consultant Agreement also provided that with
written notice, Cognizant could, "without liability, terminate or reduce the scope
of this Consultant Agreement or any [p]urchase [o]rder under which Consultant
is providing Services at any time effective immediately." The Consultant
Agreement in the record before us bears only plaintiff's signature, not the
signature of Cognizant's representative.
Additionally, the Consultant Agreement provided that plaintiff
acknowledged receiving, reading, and understanding Cognizant's Core Values
and Standards of Business Conduct, which were incorporated into the agreement
by reference. The Core Values document stated, in relevant part, that it was
important for the company to avoid conflicts of interest and that Cognizant 's
"associates" "must not hold a substantial financial interest in a customer,
supplier, or competitor."
None of the agreements among plaintiff, Mirosoft, NLB, and Cognizant
contained an exclusivity clause prohibiting plaintiff from providing recruiting
services to other companies.
Plaintiff's work commenced in February 2019 under Chopra's supervision
where she was included in a team of between ten and fourteen recruiters, some
A-0592-24 8 of whom were Cognizant employees and others were designated as
"contractors." After initially working from home for the first week, plaintiff
stated that she worked in Cognizant's office twice per week with the remainder
of the time spent working from home; while in the office, she worked from any
available cubicle or conference room. She was given a badge, key card access
to the office, cell phone, and email address.
Within approximately two months of plaintiff's hiring, her husband
formed a separate recruiting company, which eventually contracted with
Cognizant as arranged by plaintiff. Plaintiff worked at Cognizant from February
to November 7, 2019, when Chopra informed her that Cognizant had terminated
her contract.
Plaintiff's Complaint
On October 30, 2020, plaintiff filed a complaint against defendants,
alleging various counts of employment discrimination under the LAD. More
particularly, plaintiff alleged that during a meeting, the head of recruitment at
Cognizant "inappropriately touched [her] by rubbing his legs against hers ."
Plaintiff further alleged that after the leg touching incident, she received a call
from the senior vice president of operations at NLB responsible for maintaining
A-0592-24 9 NLB's client relationship with Cognizant, who "propositioned [her] to engage in
sexual relations with . . . [the head of recruitment]."
Plaintiff claims the senior vice president "instructed [her] to escort . . .
[the head of recruitment] to a hotel room and advised that he . . . would pay for
the room with his personal credit card to keep the arrangements secretive."
Plaintiff claimed she told the senior vice president "that she needed time to think
and would get back to him." A few days later, plaintiff claimed she received a
call from Singh, who asked her if she had considered [the senior vice president's]
offer and that "[i]f you refuse, it's not going to end well for you." Plaintiff
alleged that approximately one week after that phone call, Cognizant terminated
Summary of the Parties' Deposition Testimony and Key Witnesses
Following the filing of plaintiff's complaint, a period of discovery ensued,
during which plaintiff, the individually-named defendants, and witnesses were
deposed. We first summarize key aspects of the deposition testimony relative
to the threshold issue regarding plaintiff's status as an independent contractor or
employee of Cognizant and NLB.
On this issue, plaintiff testified that she understood the arrangement
among herself, Cognizant, and NLB to be that she would be an independent
A-0592-24 10 contractor. The following transcribed remarks are questions posed by
Cognizant's counsel and plaintiff's responses:
Q. Okay. And did you understand . . . whether you were being offered a contract or to come on as an employee?
A. As a contractor.
Q. A contractor.
A. Yeah.
Q. Okay. Did you understand that from . . . the start of the interview process?
A. Yes.
Later in the deposition, plaintiff reiterated her understanding of the arrangement
with NLB and Cognizant:
Q. Okay. And did you understand that you were an independent contractor?
Q. Okay. And what did you understand that to mean?
A. Well, in layman language, you know, my understanding was that, you know, because Cognizant is not hiring me directly and they have a vendor, so I will be paid by NLB, but I will be working for Cognizant.
A-0592-24 11 Regarding her role at Cognizant, plaintiff testified that Chopra would send
her a list of open positions to be filled. Plaintiff would then review resumes
received from various staffing agencies and, if a candidate appeared qualified,
she would schedule the candidate for a screening interview. If the candidate
passed the screening, she would then set up various interviews with Cognizant's
technical teams. If the candidates received positive feedback from the
interviews, they would receive an offer from Cognizant.
According to plaintiff, Cognizant worked with "thousands" of staffing
agencies that provided candidates. NLB was one of Cognizant's "preferred"
vendors for recruiting services. If NLB successfully placed a candidate,
Cognizant would then pay NLB a placement fee separate from the payment
Cognizant made to NLB for plaintiff's services.3 However, if plaintiff sourced
a candidate from another staffing agency, NLB would split its placement fee
with the third-party agency, as was the case with payments made to plaintiff's
husband's company.
Plaintiff also testified that she "was not allowed to punch in more than
eight hours a day" regardless of whether she worked additional hours. She did
3 The parties reference a separate agreement between Cognizant and NLB, outlining placement fees, which is not part of the record before us. A-0592-24 12 not have a specific start or end time because, as she explained, "the expectation
was that you finish your deliverables, [Chopra] should not get any escalation
calls and everyone lives happily ever after." And, she also understood that, as a
contractor, she would not get paid for any days she took off.
Regarding plaintiff's hiring of her husband's company, she testified that in
or around March or April of 2019, she had a conversation with Chopra about
another staffing agency that Cognizant was working with, which Chopra had
expressed dissatisfaction with because of their higher placement fees.
According to plaintiff, she asked Chopra if they "could try to . . . leverage [her]
husband in opening . . . a company" that would provide resumes for Cognizant.
Plaintiff claims Chopra supported the idea, so long as Cognizant could "stop
paying" the high placement fees to the other company. 4 Plaintiff admitted that
in April 2019, her husband formed Staffing Idea Factory ("Staffing Idea") to
provide "recruitment outsourcing" work and that she used her husband's newly
formed company to perform services for Cognizant. She also confirmed that
Staffing Idea had no other clients.
4 At her deposition, Chopra was not asked about her knowledge of plaintiff's husband's company. A-0592-24 13 Chopra testified that she primarily oversaw recruiting for two business
units, which involved recruiting "technical people" such as software engineers.
Regarding plaintiff's position, Chopra testified that there was no requirement to
come into the office on certain days, but that "if most of the people in the team
decided to come on, like, two days, then, . . . everybody would follow that ."
Chopra further testified that plaintiff had a significant degree of control over
performing her recruiting duties and was not subject to day-to-day supervision
regarding how candidates were sourced or screened.
Singh testified that plaintiff introduced NLB to her husband's company,
which resulted in NLB paying "heavy referral fees." According to Singh, she
conducted an Internet search for the company name, but "did not see any digital
presence." She did, however, discover that the company's address was the same
as plaintiff's home address and its registered agent shared plaintiff's last name.
Singh further testified that she then spoke with the senior vice president of
operations and NLB's CEO, who asked her to send an email detailing the
information she uncovered, which she did on November 6, 2019, attaching the
results of her Internet search. Later that day, NLB's CEO forwarded Singh's
email to Cognizant's head of recruiting for digital business, who decided to
terminate plaintiff.
A-0592-24 14 At his deposition, the head of recruiting testified that he took issue with
plaintiff sourcing candidates through her husband's company, which she had
failed to disclose because he believed the relationship gave her an "unfair
advantage" in recruiting due to her knowledge of Cognizant's internal staffing
needs. He also testified that plaintiff's failure to disclose her marital relationship
raised concerns about a possible alleged conflict of interest with Cognizant's
policies. Based on these concerns, the head of recruitment decided plaintiff
should no longer perform recruiting services for Cognizant.
Defendants' Motion for Summary Judgment
Defendants moved for summary judgment, arguing that plaintiff was an
independent contractor rather than an employee and, therefore, was not covered
by the LAD. Defendants further contended that, even if the statute applied,
plaintiff could not establish a prima facie case of sexual harassment,
discrimination, or retaliation because the record contained no evidence of severe
or pervasive conduct or any protected activity. Defendants also maintained that
plaintiff's contract was terminated for legitimate, non-discriminatory reasons
after Cognizant learned she failed to disclose that her husband owned a
company. Plaintiff opposed the motion and cross-moved for summary
A-0592-24 15 judgment, arguing that she functioned as an employee and that genuine issues
of material fact precluded dismissal of her LAD claims
The motion court issued an oral decision granting summary judgment in
favor of defendants and dismissing plaintiff's complaint in its entirety. The court
addressed the threshold issue of whether plaintiff was an employee or an
independent contractor, correctly stating that plaintiff could only proceed with
her LAD claims if she was an employee of Cognizant or NLB. The court denied
plaintiff's cross-motion for summary judgment, concluding that the material
facts were not in dispute, and that plaintiff functioned as an independent
contractor.
The court analyzed the twelve-factor test set forth in Pukowsky v. Caruso,
312 N.J. Super. 171 (App. Div. 1998), beginning with the parties' intent (factor
twelve), and relied on plaintiff's deposition testimony acknowledging she
understood her independent contractor status, the complaint's allegation that she
anticipated becoming a Cognizant employee in the future, and the parties'
agreements, which were nonexclusive and expressly designated her as an
independent contractor.
The court next assessed the method of payment (factor six) and noted that
NLB paid plaintiff through Mirosoft, that she did not work on NLB's premises,
A-0592-24 16 and that NLB did not provide her with any equipment to perform her duties,
unlike Cognizant, which supplied her with a laptop and cell phone (factor four).
In addition, the court found that NLB did not control the means and manner of
plaintiff's work since plaintiff did not require training and, in fact, had fifteen
years of experience in recruiting (factors one and two). The court also found
that neither NLB nor Cognizant exercised any oversight or provided any
instruction to plaintiff. The court further found that plaintiff did not receive
annual leave, did not accrue retirement benefits, and that neither entity paid
Social Security taxes on her behalf, and that her project term was limited in
duration (factors five, eight, ten, and eleven).
In sum, the motion court concluded that the Pukowsky factors
demonstrated that plaintiff was an independent contractor and, therefore,
defendants were entitled to summary judgment. Despite granting summary
judgment in defendants' favor, the court nevertheless addressed plaintiff's LAD
claims and concluded that the allegations of inappropriate touching did not rise
to the level of severe or pervasive conduct necessary to establish sexual
harassment and hostile work environment claims.
In addition, the court determined that plaintiff had not established that her
termination was pretextual. The court noted that, aside from plaintiff's
A-0592-24 17 testimony, there was no evidence that she disclosed her husband's ownership
interest in Staffing Idea. Rather, the court found the record supported
defendants' account that they discovered plaintiff "was engaging in what could
be perceived as fraudulent conduct" and immediately terminated her. In sum,
even if there had been an employer-employee relationship, the court concluded
that plaintiff could not establish a claim for retaliation. Plaintiff moved for
reconsideration, which the court subsequently denied.
Plaintiff appealed.
II.
An appellate court reviews the grant of summary judgment de novo,
applying the same standard used by the trial court. Samolyk v. Berthe, 251 N.J.
73, 78 (2022); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995). Rule 4:46-2(c) states that summary judgment must be granted "if the
pleadings, depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to a judgment or
order as a matter of law." An issue of fact is genuine if, when viewed in the
light most favorable to the non-moving party, it is sufficient to allow a factfinder
to resolve the issue in favor of the non-moving party. Brill, 142 N.J. at 540.
A-0592-24 18 The appellate court "owes no special deference to the motion judge's legal
analysis." Russi v. City of Newark, 470 N.J. Super. 615, 620 (App. Div. 2022).
If "the evidence 'is so one-sided that one party must prevail as a matter of
law,' . . . the trial court should not hesitate to grant summary judgment." Brill,
142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986)); see also Scott v. Harris, 550 U.S. 372, 380 (2007) ("When opposing
parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.").
Unsupported and bald assertions are insufficient to defeat summary judgment.
Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 97-98 (App. Div.
2014).
III.
Plaintiff argues the motion court erred by granting summary judgment on
her LAD claims by concluding she was an independent contractor rather than an
employee, by improperly resolving disputed issues of fact in defendants' favor,
and by dismissing her claims for discrimination, sexual harassment, hostile work
environment, and retaliation.
A-0592-24 19 The LAD prohibits employers from engaging in unlawful discrimination
against employees on the basis of sex, among other protected categories, and
bars sexual harassment that is sufficiently severe or pervasive to alter the
conditions of employment and create a hostile work environment. N.J.S.A.
10:5-12; Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993).
The LAD likewise makes it unlawful for
an employer, because of the . . . sex, gender identity or expression, . . . of any individual, . . . to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment . . . .
[N.J.S.A. 10:5-12(a).]
Our courts have stated that the LAD's provisions should be broadly
interpreted, as its purpose is to eradicate "'the cancer of discrimination' in our
society." Richter v. Oakland Bd. of Educ., 246 N.J. 507, 537 (2021) (quoting
Smith v. Millville Rescue Squad, 225 N.J. 373, 390 (2016)).
The existence of an employment relationship between the parties is a
prerequisite to establishing liability under the LAD. Thomas v. Cnty. of
Camden, 386 N.J. Super. 582, 594 (App. Div. 2006); see also, e.g., Palmisano
v. State Admin. Off. of the Courts, 482 N.J. Super. 328, 335 (App. Div. 2025)
A-0592-24 20 (quoting Thomas for the proposition that "the lack of an employment
relationship between the plaintiff and the defendant will preclude liability ").
Significantly, in Pukowsky, we held that "independent contractors are not
to be considered 'employees' within the meaning of the LAD, and are therefore
not entitled to avail themselves of its protections." 312 N.J. Super. at 180. To
determine whether an individual is an employee or an independent contractor
for purposes of the LAD, we adopted the following twelve-part "totality of the
circumstances" test, requiring consideration of the following:
(1) the employer's right to control the means and manner of the worker's performance; (2) the kind of occupation−supervised or unsupervised; (3) skill; (4) who furnishes the equipment and workplace; (5) the length of time in which the individual has worked; (6) the method of payment; (7) the manner of termination of the work relationship; (8) whether there is annual leave; (9) whether the work is an integral part of the business of the "employer;" (10) whether the worker accrues retirement benefits; (11) whether the "employer" pays social security taxes; and (12) the intention of the parties.
[Id. at 182-83 (quoting Franz v. Raymond Eisenhardt & Sons, 732 F. Supp. 521, 528 (D.N.J. 1990)).]
The court also synthesized the twelve Pukowsky factors into three
categories: "(1) employer control; (2) the worker's economic dependence on the
work relationship; and (3) the degree to which there has been a functional
A-0592-24 21 integration of the employer's business with that of the person doing the work at
issue." Ibid.
As recently as 2015, the Supreme Court credited Pukowsky's holding,
noting that "an independent contractor is not protected by the [LAD]." Hargrove
v. Sleepy's, LLC, 220 N.J. 289, 309 (2015). The Court also reaffirmed its
holding in D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110 (2007),
stating that Pukowsky's twelve-factor totality of the circumstances test still
applied to cases brought under the LAD. Hargrove, 220 N.J. at 315-16.
In D'Annunzio, 192 N.J. at 125, the Court stated that this factor looks to
"whether the professional's services have been incorporated into the work of the
business." The Court stated that this issue raises several questions:
Has the worker become one of the "cogs" in the employer's enterprise? Is the work continuous and directly required for the employer's business to be carried out, as opposed to intermittent and peripheral? Is the professional routinely or regularly at the disposal of the employer to perform a portion of the employer's work, as opposed to being available to the public for professional services on his or her own terms? Do the "professional" services include a duty to perform routine or administrative activities? If so, an employer- employee relationship more likely has been established.
[Id. at 123-24.]
A-0592-24 22 There, the Court noted that the plaintiff's work was an "essential" aspect
of the employer's business and "necessary" to its "day-to-day operations." Id. at
126. Eight years later, in Estate of Kotsovska, ex rel. Kotsovska v. Liebman,
221 N.J. 568, 598 (2015), the Court noted that "[t]his factor addresses a situation
where the employer, who runs a business composed of two or more overlapping
operations, subcontracts a portion of the work in furtherance of his or her core
business."
The Court in D'Annunzio emphasized that the worker's integration in an
employer's business operations is an important consideration for determining
whether an employee's status as an independent contractor is appropriate. 192
N.J. at 125. In assessing this consideration, the D'Annunzio Court concluded
that the plaintiff's work was an "essential" component of the defendant's
business and "necessary" to its day-to-day operations. Id. at 126.
In analyzing those factors, our Court clarified that the standard for these
factors is whether a reasonable jury could find, based on the facts presented, that
the plaintiff was an employee. Even if one of the factors indicates an employee
relationship, the issue is whether "the overwhelming balance of factors clearly
supports" a finding that the plaintiff is not an employee. Pukowsky, 312 N.J.
Super. at 183. In other words, courts must "weigh the factors qualitatively rather
A-0592-24 23 than quantitatively." Hoag v. Brown, 397 N.J. Super. 34, 48 (App. Div. 2007)
(emphasis added). We further stated that applying the Pukowsky factors
"requires more than the listing of factors on either side of the ledger with victory
going to the side garnering the most factors." Chrisanthis v. Cnty. of Atl., 361
N.J. Super. 448, 456 (App. Div. 2003). Our case law has identified "[t]he most
important of these factors [to be] the first, the employer's right to control the
means and manner of the worker's performance." Id. at 455 (quoting Franz v.
Raymond Eisenhardt & Sons, Inc., 732 F. Supp. 521, 528 (D.N.J. 1990)).
However, it is also well-settled that the weight assigned to each factor depends
on the circumstances of the individual case. Id. at 456 ("A 'principled
application' of the factors and a consideration of which factors are more
important under the peculiar circumstances of each case [is] required").
Applying these legal principles and based on our de novo review, we agree
that the Pukowsky factors overwhelmingly support plaintiff's status as an
independent contractor and reject plaintiff's claim that she was an employee of
either defendant entitled to the protections of the LAD. We reach this
conclusion following our review and application of the Pukowsky factors,
bearing in mind plaintiff's admission that, from the outset, she understood she
A-0592-24 24 was not an employee but an independent contractor and it was her company that
had been retained to perform the work.
As to the level of control (factor one), plaintiff argues that her designation
as an independent contractor "was functionally arbitrary within [d]efendants'
business," that this is the most important factor, and that the court erred by
commencing its analysis with the twelfth factor, the intention of the parties.
We, however, find no legal support for plaintiff's contention that the
motion court erred merely by examining the Pukowsky factors in reverse or in
a different sequence. Plaintiff points to Cognizant's direction of her day-to-day
activities and its monitoring of how she performed her recruitment duties.
According to plaintiff's own testimony, however, Chopra informed her of
vacancies at Cognizant that needed to be filled and she was free to contact
potential recruits, conduct interviews and if she found them qualified, pass them
along to Cognizant's internal team. Cognizant, therefore, did not direct how
plaintiff could perform her work. Additionally, the record also shows that
plaintiff worked for Cognizant as one of several technology recruiters, providing
a pathway for technology experts to be hired to work for the company itself. As
plaintiff described her responsibilities, she would review resumes, conduct
A-0592-24 25 screening interviews, and, if the candidates appeared qualified, arrange
interviews with Cognizant's internal teams.
We discern Cognizant and NLB's supervision of plaintiff mirrors that of
any entity providing guidance regarding services to be performed. Importantly,
the record shows that plaintiff could not participate in Cognizant's benefit plans,
and Cognizant had "no responsibility for any employer-related functions . . . ,
including supervising, disciplining, discharging, reviewing, evaluating, and
setting the pay rates" for plaintiff's work. Under these circumstances, we are
unpersuaded that the level of control plaintiff argues Cognizant asserted
outweighs the remaining Pukowsky factors, which weigh in favor of
independent contractor status.
Moreover, to the extent plaintiff is arguing NLB asserted control over her
work, we observe no support for this contention in the record , as it was
Cognizant's staff who supervised plaintiff's work and provided her with the
equipment and office space.
Plaintiff next asserts "[o]ther Pukowsky factors also weigh in favor of
employment," including the second and fourth factors (the kind of supervision
and who furnishes any equipment) respectively. Although Chopra supervised
plaintiff, it is the "kind" of supervision that we must examine. 312 N.J. Super.
A-0592-24 26 at 182. Plaintiff fails to explain how Chopra's supervision established an
employment relationship with Cognizant or NLB, as independent contractors
may also be supervised by the entity that hires them.
Although Cognizant furnished plaintiff with an email account and
equipment, plaintiff does not explain how this fact is sufficient, particularly in
light of her deposition testimony that she understood she had been retained as
an independent contractor, did not have a designated office or specific
workspace, worked from any vacant cubicle on the days she chose to come into
the office, and, as defendants argue, that these accoutrements "were not
necessary to her recruiting business as [plaintiff] had an established business
providing these same services prior to her company's contracts with Cognizant
and NLB."
Additionally, as Cognizant asserts, with respect to the length of time
plaintiff worked for Cognizant and NLB (fifth factor), "it is undisputed that
[plaintiff's] contract had a limited [twelve]-month duration," reflecting a finite
period of time, which is consistent with plaintiff's status as an independent
contractor, not an employee.
A-0592-24 27 As to the method of payment (factor six) which plaintiff does not address
in her brief, it is undisputed that Cognizant compensated plaintiff through
Mirosoft, rather than issuing her a W-2 as it would for an employee.
Regarding the manner of termination of the work relationship (factor
seven), plaintiff inexplicably focuses on the hiring process undertaken by
Cognizant, arguing that the "hiring process also indicates that she was a
'potential' employee . . . seeking to enter into a commercial transaction." This
argument is without merit as it fails to address the manner of termination.
Lastly, in addressing whether the work is an integral part of the employer's
business (factor nine), plaintiff maintains "[t]here is also evidence in the record
that the work performed by [her], recruiting for positions within the company,
is integral to [d]efendants' business . . . as it was also performed by Cognizant
employees." On this point, we note that plaintiff was one of between ten and
fourteen recruiters with Cognizant, which is more indicative of the fact that her
work was "incidental" to Cognizant's overall business in the information
technology industry, rather than integral or essential. See Chrisanthis, 361 N.J.
Super. at 461-62 (finding the plaintiff's work as a nurse was "incidental, not
integral" to the defendant's operation as a correctional facility, because the
services were ancillary to the institution's primary purpose).
A-0592-24 28 Having examined the relevant Pukowsky factors in light of this record, we
conclude, as the motion court did, that no reasonable jury could find that
plaintiff was an employee of Cognizant and NLB. Critically, the parties'
contractual agreements expressly designate plaintiff as an independent
contractor, not an employee, and provided that Mirosoft, plaintiff's company,
would be responsible for paying its employees' salaries, withholding income
taxes and Social Security payments, and administering disability benefits.
Plaintiff cannot defeat summary judgment in light of the express language of the
Agency and related agreements, as well as her own testimony acknowledging
that she understood she had been retained as an independent contractor.
Plaintiff's contention that she should be treated as an employee notwithstanding
the plain language of these agreements is unavailing. Under these
circumstances, the court correctly determined plaintiff was an independent
contractor and granted summary judgment in defendants' favor.
IV.
Because we have determined that plaintiff was an independent contractor
and not an employee of Cognizant or NLB, we need not reach plaintiff's
discrimination claims specified in her complaint. Hargrove, 220 N.J. at 309. It
is axiomatic that our LAD and its broad protections apply solely to employees,
A-0592-24 29 not independent contractors, who may have other causes of action against
alleged tortfeasors, including for breach of contract and the like, where
appropriate. Nonetheless, considering the stated legal authorities, we affirm the
dismissal of plaintiff's complaint and all claims brought pursuant to the LAD.
Affirmed.
A-0592-24 30