New Jersey Resumes Efforts to Amend ABC Test for Independent Contractor Status, Passes Slate of Laws Targeting Misclassification

The New Jersey legislature closed out 2019 by trying to push through a bill that would have substantially amended the state’s “ABC test” for determining independent contractor status, and effectively prohibited New Jersey companies from utilizing independent contractor workforces. On January 14, 2020, the state senate introduced S863, which presents many of the same problems for New Jersey businesses that its predecessors did.

Employers Beware: New Jersey Enacts One of the Toughest “Wage Theft” Laws in the Country

On August 6, 2019, Acting Governor Sheila Oliver signed the New Jersey Wage Theft Act (WTA) into law. The law has been touted by proponents as the toughest wage theft statute in the country. Notwithstanding its name, the WTA goes far beyond attempting to prevent and punish intentional “wage theft” by significantly expanding the liability even the best-intentioned employers will face for state wage law violations.

Third Circuit Rules That FAAAA Does Not Preempt New Jersey’s ABC Test for Determining Independent Contractor Status

On January 29, 2019, the Third Circuit Court of Appeals concluded that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) does not preempt New Jersey’s ABC test for determining whether a worker is an independent contractor or employee.

“Uber Bill” to Regulate Ride-Sharing Services Companies Advances in State Assembly

A bill to regulate ride-sharing service companies (known as “transportation network companies”), such as Uber and Lyft, is making its way through the state legislature (A3765/S2742). Earlier versions of the bill clearly stated that drivers providing services on behalf of such transportation network companies would not be considered employees, consistent with the position of the companies that drivers are independent contractors.

Lawmakers Clash Over Possibility of Town-by-Town Minimum Wage Requirements

On March 19, 2015, the New Jersey State Assembly Labor Committee approved a bill (A3912) that would allow New Jersey counties and municipalities to set a minimum wage for private sector employees within their borders at an amount higher than the state’s minimum wage. To become law, the bill must still be approved by the full state Senate and Assembly, as well as the governor.

Lawsuit Filed, Enforcement of Trenton’s Paid Sick Leave Ordinance Delayed, Pending Court Hearing

On March 6, 2015, the City of Trenton entered into an agreement with six New Jersey business associations to suspend enforcement of its paid sick leave ordinance pending an April 9 court hearing on the business associations’ application for a preliminary injunction. Trenton’s sick leave ordinance, passed by voter referendum late last year, was scheduled to take effect on March 4, 2015.

Arbitration Provisions Must Include Clear and Unambiguous Waiver of Claimant’s Right to Sue in Court, New Jersey Supreme Court and Appellate Division Courts Hold

New Jersey employers with mandatory arbitration provisions seeking to compel the arbitration of employment disputes with their employees would be well-served to reexamine such provisions in light of recent decisions by New Jersey appellate courts.

Employer’s Handbook Disclaimer Renders Agreement to Arbitrate Unenforceable, New Jersey District Court Holds

Employee handbooks typically contain an overview of company history, a set of employment policies and general guidance, and a clear and prominent disclaimer that nothing in the handbook creates a contract of employment between the company and its employees. The Raymours Furniture Company handbook went one step further—it also contained a mandatory arbitration agreement, which

Removal From Key Account and Placement on Performance Improvement Plan Not “Adverse Employment Actions,” New Jersey District Court Holds

In order to state a retaliation claim under the federal Family and Medical Leave Act (FMLA), a plaintiff must establish that his employer took an adverse employment action against him that was causally related to his FMLA leave. In Berridge, a former senior account manager alleged that he suffered such retaliatory adverse employment action eleven months after taking FMLA leave in the form of removal from a key account, placement upon a performance improvement plan (PIP), and ultimately, termination.

Indefinite Leave is Not a Reasonable Accommodation, District of New Jersey Holds

In Bourhill v. Nextel of New York, Inc., 2013 WL 1680140 (D.N.J. Apr. 17, 2013), an employee with a back condition was granted several consecutive leaves of absences (spanning eight months of leave), followed by an open-ended request for “at least two months” of leave. He was discharged following the last request, and filed disability

New Jersey Appellate Division Holds Aider and Abettor Liability Can Be Imposed on a Supervisor for His or Her Own Affirmative Violations of the NJLAD

In Rowan v. Hartford Plaza Ltd., 2013 WL 1350095 (N.J. App. Div. Apr. 5, 2013) (unpub.), the New Jersey Appellate Division held—in an unpublished opinion—that individual supervisors are subject to “aiding and abetting” liability for their own affirmative violations of the New Jersey Law Against Discrimination (NJLAD).

New Jersey Minimum Wage Hike Now Up to Voters

On January 28, 2013, New Jersey Governor Chris Christie conditionally vetoed a bill (A2162/S3) that would have increased New Jersey’s minimum wage rate from $7.25 per hour to $8.50 per hour and provided for future annual adjustments tied to increases in the Consumer Price Index (CPI). The Governor’s alternative proposal (increasing the minimum wage $0.25 per hour in the first year, $0.50 in the second year, and $0.25 in the third year) was rejected by the Assembly and Senate.

Bill Would Impose Dual Disclosure Obligations on New Jersey Temporary Help Services Firms

On December 7, 2012, a bill (A3531) was introduced that would require all temporary help service firms to disclose to each client firm the rate of pay of each employee assigned to the client firm, and to disclose to each employee the rate charged to the client firm for the assignment of the employee to

Maximum Weekly Benefits for New Jersey Unemployment, Temporary Disability and Family Leave Insurance, and Workers’ Compensation Increased for 2013

Effective January 1, 2013, the maximum weekly payment for temporary disability and family leave insurance benefits increased from $572 to $584 per week; the maximum 2013 weekly unemployment benefit increased from $611 to $624; and the maximum weekly benefit for workers’ compensation increased from $810 to $826. The complete NJDOL news release, which includes a chart comparing the 2013 rates and eligibility criteria to the 2012 rates and criteria, is available here.

New Jersey Assembly Approves Bill That Would Dramatically Expand Penalties for Wage Violations

In December 2012, the Assembly introduced and then approved a bill (A3581), which would significantly increase the penalties imposed on employers for failure to pay wages or benefits. If enacted, the bill would provide for the following penalties for violations of the wage payment law: (1) temporary or permanent revocation of the employer’s business licenses;

Employer Not Required to Accommodate Bus Driver’s No Sunday Work Request, Third Circuit Holds

In Fouche v. New Jersey Transit, No. 11-3031, 2012 U.S. App. LEXIS 14524, (3rd Cir. July 16, 2012), a bus driver sued his employer under Title VII and the New Jersey Law Against Discrimination for refusing to accommodate his religion-based request not to drive on Sundays. Rejecting the plaintiff’s claim, the Third Circuit Court of

FMLA Does Not Prohibit Termination of Employee Who Abuses Leave or Engages in Misconduct During Leave, Third Circuit Holds

In Warwas v. City of Plainfield, No. 11-1736, 2012 U.S. App. LEXIS 15324, (3rd Cir. July 25, 2012), an employee terminated while on FMLA leave sued for interference with her FMLA rights. The employer asserted it terminated the plaintiff because while on leave she continued to work at home on a part-time job with another

Non-Probationary Employee Not Proper Comparator for Probationary Employee, Third Circuit Holds

In Mercado v. Donahoe, No. 11-2972, 2012 U.S. App. LEXIS 13226, (3rd Cir. June 26, 2012), the plaintiff, a probationary part-time employee, sued his employer alleging that he had been discriminated against on the basis of his gender (male) and national origin (Hispanic). In support of his claims, the plaintiff pointed to the employer’s allegedly more favorable treatment of a white, female, non-probationary employee.

Unreviewed NJDOL Determination Not Binding in Subsequent Lawsuit, New Jersey District Court Rules

In Kiernan v. AAA Mechanical, Inc., No. 10-4421 (MLC), 2012 U.S. Dist. LEXIS 90655, (D.N.J. June 29, 2012), the plaintiff sued her employer for overtime compensation under the New Jersey Wage and Hour Law shortly after the New Jersey Department of Labor (NJDOL) conducted an investigation on her behalf and determined the employer was in violation of the law.

Conditional Certification of FLSA Misclassification Claim Denied by New Jersey District Court to Putative Class of Assistant Store Managers

In Harriel v. Wal-Mart Stores, Inc., No. 11-2510 (MLC), 2012 U.S. Dist. LEXIS 97527, (D.N.J. July 13, 2012), the District Court of New Jersey denied the plaintiff’s motion for conditional certification as an FLSA collective action because the plaintiff failed to meet his burden of demonstrating that he and other members of the putative class

Employee Should Not Have Been Ordered to Share Cost of a Court-Appointed Discovery Master in CEPA and NJLAD Case, New Jersey Appellate Division Holds

In Zehl v. City of Elizabeth Board of Education, a plaintiff of apparent limited means – a school cafeteria worker – asserted CEPA and NJLAD claims against her employer. A-1296-11T3 (N.J. App. Div. May 31, 2012). Discovery proved extensive, hotly contested and time consuming, and in an attempt to conserve judicial resources, the trial court

Felony Conviction Renders Employee Unqualified, Discrimination Claims Dismissed, New Jersey District Court Rules

In Saunders v. Apothaker Associates, Inc., a Muslim applicant was offered a position as a debt collector, contingent upon his criminal background check. Civ. No. 10-3170 (D.N.J. Apr. 17, 2012). Two days after the plaintiff started working, he was terminated when the background check arrived, revealing a felony retail theft conviction and a failure to

Philadelphia-Based Employee’s CEPA and NJLAD Claims Dismissed Even Though Employee Managed New Jersey Accounts, New Jersey District Court Rules

In Papalini v. Sensient Colors, Inc., a Philadelphia-based account manager filed a complaint against her employer alleging sexual harassment under the NJLAD and retaliation under CEPA, which are both New Jersey statutes, as opposed to federal or Pennsylvania statutes. Civ. No. 11-6392 (D.N.J. Apr. 18, 2012).

Arbitration Agreement Enforceable Despite Limitation on Damages and Mutual Fee Shifting, New Jersey District Court Rules

In Morando v. Netwrix Corp., the employer moved to compel arbitration of an employee’s NJLAD and FLSA claims pursuant to an arbitration agreement the plaintiff signed when he began working. Civ. No. 25-7-6183 (D.N.J. April 24, 2012). The court held that the arbitration agreement was not unconscionable even though it contained provisions allowing the arbitrator to award reasonable attorneys’ fees and costs to the prevailing party (as opposed to just “the prevailing plaintiff”), and even though it also precluded the arbitrator from awarding punitive or exemplary damages of any kind.

Save New Jersey Call Center Jobs Act – Passes in the Assembly

A bill (A2651) introduced on March 9, 2012 and passed in the Assembly on March 15, 2012, would have a dramatic impact on New Jersey employers intending to outsource a call center (telephone-based or email-based) overseas. Under the bill, New Jersey employers (with 50 or more call center workers) who seek to relocate or transfer a substantial portion of a call center to a foreign country would be required to provide 120 days’ advance notice to the Commission of Labor and Workforce Development, or face a civil penalty of up to $10,000 for each day the notification is not made.

New Jersey’s Corporation Business Tax Held Applicable to Foreign Corporations With a Single Employee Telecommuting From New Jersey

In a case of first impression, the Appellate Division held a foreign corporation that regularly and consistently permits one of its employees to telecommute from a New Jersey residence is doing business in New Jersey, is subject to the New Jersey Corporation Business Tax Act, and must file New Jersey Corporation Business Tax returns.