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Employees who engage in social or recreational activities at their bosses’ behest can recover workers’ compensation benefits for resulting injuries, the New Jersey Supreme Court ruled March 10. “[We] hold 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 as a matter of law,” Justice James Zazzali wrote for the unanimous court in Lozano v. De Luca Construction Co. 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, N.J.S.A. 34:15-7, permits benefits to be paid for recreational injuries if the activity is a regular incident of employment and produces a benefit to the employer, beyond improvement in employee health and morale. Last week’s ruling engrafts a new test: whether, in the mind of the employee, he or she is expected to engage in the activity on the work site. Zazzali said 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 he 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. “A contrary reading … would impose on employees a classic Hobson’s choice: obey the employer’s order and jeopardize eligibility for workers’ compensation benefits, or refuse to engage in the required activity and risk loss of employment,” Zazzali said. 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, N.J., office of Francis Giuliano. “An employer always has the right to … expand the scope of an employee’s job.” Adds Lozano’s lawyer, Elizabeth, N.J., solo practitioner Raquel Romero: “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.”

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