Here’s the important question you should be asking yourself about the process service company you’re using: do they use employees or independent contractors?
The answer could wind up having a significant impact on your case, client satisfaction and overall peace of mind.
Determining Employee or Independent Contractor
The State of NJ Department of Labor uses the following to determine if an individual is an employee or independent contractor according to R.S. 43:21-19(i)(6):
(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; and
(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.
Inability to Provide Direction
These criteria can be difficult to determine at times, but if a process service company is using independent contractors there a number of concerns.
According to the first piece of criteria, the individual who is an independent contractor is “free from control or direction over the performance of such service”. With constantly changing rules and laws as well as the need to be up-to-date on best practices, this means the independent contractors hold all the responsibility to stay current. The company isn’t allowed to providing training or to give direction to their independent contractors, which can mean improper service, inadequate attempts or due diligence and frustrated clients.
Employee-based companies provide consistent training and education to their staff, making sure services are always completed in accordance with the rules and conducted professionally. This type of training is especially critical in order for affidavits to stand up in court.
Traverse Hearings
The longevity of independent contractors is far less than that of an employee. Should a service be contested and a process server called to appear in court for a Traverse Hearing, what is the likelihood of the server appearing in court? For a company with employees, the server is more like to still be employed or at the very least easy to get in touch with.
The alternative is the service is deemed improper and the case must be restarted. After all of the work that goes into completing a service, the last thing a client wants is to need to start over if the process server is unable to attest to the validity of the affidavit of service.
Choosing a process service company
While process servers are just one part of a legal case, proper service is essential to keep a case moving forward. Given the nature of what constitutes an independent contractor, choosing a process server who utilizes them presents lower quality assurance and risks. Employee-based companies offer thorough training, expertise and are more likely to be readily available to testify in the event of a Traverse hearing.
