This wage and hour Law Firm Publication by Epstein Becker & Green, P.C. discusses Hargrove v. Sleepy's in which the New Jersey Supreme Court held that an "ABC" test should be used to determine a worker's independent contractor status under the New Jersey Wage Payment Law and the New Jersey Wage and Hour Law. The court made this determination in response to a certified question from the Third Circuit Court of Appeals which was hearing an appeal on Hargrove. While neither law states how to distinguish between employee and independent contractor status, the New Jersey Department of Labor and Workforce Development's regulations provide that the ABC test should be used to make this determination. Under the ABC test, an employer must show that a purported independent contractor: (A) is free from company control; (B) works outside the company's usual course of business; and (C) is engaged in an independent business that will continue despite the end of the challenged relationship. The ABC test differs from the "right to control" test that has been applied in different types of cases in other jurisdictions including the US Supreme Court.