The Department of Labor and Workforce Development is proposing new N.J.A.C. 12:11, which would address, through rules, application of N.J.S.A. 43:21-19(i)(6)(A), (B), and (C), to the question of independent contractor status; specifically, to the question of whether a particular worker is considered an employee or an independent contractor. These new proposed rules, while adding regulations, will not change the existing law but remain true to the statute, as well as being in align with numerous courts decisions’ interpretation of the ABC test.
If your employer misclassified you as an independent contractor, or did not pay you overtime, or you have been demoted, had your hours cut, terminated, harassed or been subjected to retaliation for complaining what you believe is your employer’s illegal or improper wage payment, you should contact this law firm today for a free consultation.
The New Jersey statute, N.J.S.A. 43:21-19(i)(6)(A), (B), and (C), is commonly referred to as the statutory "ABC test," This test has been applied by numerous courts to determine if a worker is an employee of the employer, or working as an independent contractor. This ABC test applies to all types of labor, including high-end professionals working as tech industry product developers, (this has been a longtime and ongoing issue - see NJ IT Specialists and High-End Professionals under Proposed Legislation, published 02/10/2020) computer technicians, internal auditors, IT management, accounting services, and other types of tradespersons and industrial workers, including those in the construction industry who are often cheated out of overtime pay, Help for NJ Employees Who Have Not Been Paid Overtime: Wage Theft Act-Part 2, NJ Wage and Hour Law Amendments, electricians, plumbers, house and office cleaning services, delivery services, transportation network companies, ride-sharing/ride-hailing services, and commercial trucking companies. Under the ABC test, a NJ worker should be considered an employee unless all three of the following circumstances apply:
A) The individual has been and will continue to be free from control or direction over the performance of work performed, both under contract of service and in fact; and
B) The work is either outside the usual course of the business for which such service is performed, or the work is performed outside of all the places of business of the enterprise for which such service is performed; and
C) The individual is customarily engaged in an independently established trade, occupation, profession or business
The question of independent contractor or employee status is important to determine one’s legal rights. New Jersey Age Discrimination Lawyer. It also ferrets out bad employers who purposely misclassify workers as independent contractors as a way to save the company money. Unequal Pay and Wage Claims - Diane B. Allen Equal Pay Act, misclassifying a worker as an independent contractor when in actuality they are an employee under the ABC test, avoids the employer having to pay for part of the worker’s social security and providing for other legally required employee benefits. Legally required benefits like Social Security and Medicare are funded by both employer and employee contributions, with employers matching the employee's deduction. For other employee benefits such as health insurance, employers often contribute a significant percentage of the premiums. New Jersey Pregnancy Discrimination Lawyer.
Determining whether a worker is an employee or independent contractor is important to ascertain what benefits and rights a worker is entitled to by law.
EMPLOYEES HAVE NUMEROUS RIGHTS BY LAW.
The ABC test is applied specifically, to the question of whether a particular worker is considered an employee or an independent contractor pursuant to numerous New Jersey statutes for which the Department uses the ABC test to determine independent contractor status, such as, but not limited to:
The New Jersey Unemployment Compensation Law (UCL), N.J.S.A. 43:21-1 et seq.,
The Temporary Disability Benefits Law (TDBL), N.J.S.A. 43:21-25 et seq.,
The Wage and Hour Law (WHL), N.J.S.A. 34:11-56a4 et seq.,
The Wage Payment Law (WPL), N.J.S.A. 34:11-4.1 et seq.,
The Earned Sick Leave Law (ESLL), N.J.S.A. 34:8D-1, et seq.,
The New Jersey Family Leave Law, N.J.S.A. 34:11B-1 et seq.
The proposed new N.J.A.C. rule reflects either a direct statutory mandate or a statutory interpretation that has been announced in published opinions of the New Jersey Supreme Court or the Appellate Division of the New Jersey Superior Court.
The Department of Labor’s own interpretations of the statutory ABC test are reflected in the proposed new rules. Each such interpretation is consistent with both statute and binding court precedent. It is the Department of Labor and Workforce Development’s intention to codify its interpretation of the statutory ABC test, applying its expertise as the administrative agency tasked by statute with enforcing the above-listed laws.
If you resign, you may lose right to prevail in a lawsuit
In many instances of discrimination law, if you resign, you may lose right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of resigning, or think you will be fired, or have been fired, you should contact this office immediately for a free consultation to discuss your options in the safest way for you.
WHAT YOU CAN DO
If your employer cheated you out of wages or your employer tells you that you are an independent contractor and not covered under the NJ employee statutes, you should contact this law firm today for a free consultation. I am an experienced, aggressive and compassionate employment attorney who will be aggressive about enforcing your rights. This law office accepts cases from all over New Jersey and has locations in Southern, Central and Northern NJ to meet with clients.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.