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Maybe it’s time to rethink the horseshoe toss at the office picnic. According to the New Jersey Supreme Court, employees who participate in recreational activities at their bosses’ behest can recover workers’ compensation if they get hurt. The court unanimously found that “when an employer compels an employee to participate in an activity that ordinarily would be considered recreational or social in nature, the employer thereby renders that activity a work-related task.” Justice James Zazzali wrote the opinion in Lozano v. De Luca Construction Co., which was handed down on March 10. The ruling reinstates a suit by Porfirio Lozano, a mason’s laborer who drove a go-cart at the urging of his employer and crashed into a truck, breaking his ankle. A workers’ compensation judge and the appellate division denied Lozano’s claim, saying he was engaged in a recreational rather than work-related activity. A 1979 amendment to the workers’ compensation statute permits benefits to be paid for recreational injuries if the activity is a regular incident of employment and benefits the employer in ways other than improvement of employee health and morale. The recent ruling adds a new test: whether, in the mind of the employee, he or she is expected to engage in the activity on the work site. Or, as the judge put it: “[An activity] traditionally viewed as recreational becomes work when it occurs on the work site and at the employer’s direction.” Zazzali noted that “considering the imbalance of power between the employer and the employee, we cannot ignore the reality that indirect pressure on an employee can be as powerful as an explicit order.” Lozano did not know how to drive and depended on his employer, Frank DeLuca, for transportation to and from jobs. They were working on a house with a circular track and go-carts, and at the workday’s end, DeLuca told Lozano to drive one of the carts. Lozano protested that he did not know how to drive, but DeLuca insisted, twice saying, “Get in.” Lozano took that as a directive. Both lawyers in the case say the ruling is a logical application of the law. “It doesn’t change anything,” says DeLuca’s lawyer, David Kendall, an associate at the Ramsey, New Jersey, office of Francis Giuliano. “An employer always has the right to . . . expand the scope of an employee’s job.” Lozano’s lawyer, Elizabeth, New Jersey, solo practitioner Raquel Romero, says: “I suppose you could see this as an extension of the law. But I would describe it as responding to what really happens in the workplace.” A version of this story originally appeared in the New Jersey Law Journal, a sibling publication of Corporate Counsel.

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