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Monday, January 13, 2020

NJ Independent Contractors and Whistleblowing, “Am I Protected from Retaliation?” Part 1

The New Jersey Senate introduced a bill to distinguish the classifications between “employee” and “Independent Contractor” for the purposes of NJ Wage and Hour laws. Workers, particularly high-end professionals such as IT managers etc., who are classified by their employers as “independent contractors” wonder if this new legislation will offer them protections from retaliation if they whistleblow on their employer’s illegal acts. In many instances, this legislation is unlikely to make a difference due to the evolution of the law by the NJ courts in determining cases brought under NJ’s whistleblower statute, The Conscientious Employee Protection Act, “CEPA”.

This new proposed legislation attempts to prevent widespread practice of mis-classification by employers of their workers, calling them, “independent contractors” when the workers are essentially employees. In certain industries in particular, employers deliberately mis-classify the status of their workers to avoid contributing to the workers’ social security and other benefits. Although only time will tell if this proposed legislation will change the status of an “independent contractor” who whistleblows,  because it is not written specifically with protection for whistleblowers in mind, the evolution of NJ Law as to who is given protection from retaliation, regardless of whether the employer classifies the worker as “employee” or “independent contractor” provides guidance as to who is given protection from retaliation for whistleblowing even if labeled an “independent contractor”.

The Evolution of NJ Law as it Pertains to Independent Contractors with Whistleblower CEPA Protection

The NJ law is clear that the issue of whether an worker is employee or independent contractor for purposes of CEPA protection from employer retaliation revolves around facts that are independent of whether the employer classifies the worker as an “employee” or “independent contractor”. Instead, it revolves around a totality of the circumstances, a broad series of facts that must be decided by the jury.

The factual test that determines whether their Whistleblower protection under NJ CEPA evolved from two cases: Pukowsky v. Caruso, 312 N.J. Super. 171 (1998) and and the later D’Annunzio test, D'Annunzio v. Prudential Ins. Co. of America, 192 N.J. 110 (2007).

Under the NJ Supreme Court’s D’Annunzio test, whether statutory CEPA whistleblower protections apply to professional persons or others who are classified  as independent contractors, including those who have contracts stating they are independent contractors, or the setting of a professional person or an individual otherwise providing specialized services allegedly as an independent contractor, the following considerations come into play:

(1) employer control;

(2) the worker's economic dependence on the work relationship; and

(3) the degree to which there has been a functional integration of the employer's business with that kind of person doing the work.

A detailed description of the evolution of New Jersey law as it pertains to independent contractors with whistleblower protection will appear in the next article.

DO NOT SIT ON YOUR RIGHTS!

Do not sit on your rights, or you may lose the right to file your claim.

If you are an independent contractor and think you have been retaliated against, it is essential for you to contact an experienced, competent and successful employment whistleblower attorney who will be aggressive about enforcing your rights as soon as possible.

If you have been demoted, had your hours cut, terminated, harassed or been subjected to retaliation for complaining about, objecting to, refusing to participate in, or reporting what you believe is your employer’s illegal or improper conduct, you should contact this law firm as soon as possible. I am an experienced, competent and compassionate employment attorney who will be aggressive about enforcing your rights.  I am successful in bringing whistleblower lawsuits and recovering money for whistleblower workers.

If you are being subjected to such unlawful workplace retaliation, contact Hope A. Lang, Attorney at Law today for a free consultation. I accept whistleblower and discrimination cases from all over New Jersey.

New Jersey employment attorney, Hope A. Lang, Attorney at Law serves clients throughout the state, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Southern, Central, Western and Northern NJ to meet with clients.

 


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