For additional information regarding the criterion for inclusion or membership for lawyer associations, awards, & certifications click image for link.

In New Jersey, the difference between being classified by an employer as an employee as opposed to being classified as an independent contractor can make a world of difference regarding the scope of a person’s legal rights. Unlike independent contractors whose rights are established by mutually agreed terms contained in a contract, those who qualify for employment status are entitled by operation of law to a host of benefits and rights not available to an independent contractor, including, but not limited to, unemployment compensation benefits, temporary disability benefits, workers compensation benefits, and wage and hour rights. See generally for example New Jersey’s: Unemployment Compensation Law, N.J.S.A. 43:21-1 et. seq.; Temporary Disability Benefits Law, N.J.S.A. 43:21-25 et. seq.; Workers Compensation Laws, N.J.S.A., 34:15-1, et. seq., Wage and Hour Law, N.J.S.A. 34:11-56a et. seq. and Prevailing Wage Act, N.J.S.A. 34:11-56.25 et. seq. Therefore, it is of paramount importance for workers to qualify as an employee under state law in order to receive these benefits.

Under New Jersey’s current law, individuals will be considered independent contractors if (1) free from control or direction over the performance of services; (2) they provide a service that is either outside the usual course of that employer’s business or the service is performed outside the employer’s places of business; or (3) the individual is customarily engaged in an independently established trade, occupation, profession or business. This law, found at N.J.S.A., 43:21-1 to 24.4, deems individuals eligible for unemployment compensation benefits unless all of the criteria of the so-called “ABC test” set forth in N.J.S.A. 43:21-19(i)(6)(A),(B),(C) is satisfied. All three parts of the test must be met for a person to be disqualified and the failure to establish any one of the three elements renders the claimant eligible for benefits. Philadelphia Newspapers, Inc. v Board of Review, 397 N.J. Super. 309 (App. Div. 2007).

For example, as the law stands now, an entertainer employed by a hardware store to perform and sing for its customers at their annual holiday party would be considered an independent contractor. Similarly, if a fast food burger restaurant hired a caterer to provide food and services for all their parties outside of its restaurants, that caterer would be considered an independent contractor. This is true even if the caterer was too busy catering these parties to be able to provide services to any other customer. Moreover, if a bank frequently hires an IT specialist to conduct software updates and repairs specifically relating to its buildings’ security systems but could provide the same services to other types of businesses, that individual would be considered an independent contractor.

America takes pride in its history of being a beacon for the labor class. Throughout its history, America has attracted waves of immigrants believing they could start a better and more prosperous life working in a thriving economy. Many of America’s greatest success stories began as a result of people getting an opportunity to work in a job providing a fair wage.  Fortunately for those who work in New Jersey, the New Jersey Wage and Hour Law (NJWHL) exists to “protect employees from unfair wages and excessive hours.” In re Raymour & Flanigan Furniture, 405 N.J. Super. 367, 376 (App. Div. 2009). The NJWHL expressly states that, “[t]he employment of an employee in any occupation in this State at an oppressive and unreasonable wage is hereby declared to be contrary to public policy and any contract, agreement or understanding for or in relation to such employment shall be void.”  N.J.S.A., 34:11-56a3. “Oppressive and unreasonable wage” is defined as “a wage which is both less than the fair and reasonably value of the service rendered and less than sufficient to meet the minimum cost of living necessary for health.” N.J.A.C. 12:56-2.1. A prime example of the NJWHL wage protections is found in our State’s overtime law which requires, “Every employer shall pay to each of his employees’ wages … for 40 hours of working time in any week and 1 1/2 times such employee’s regular hourly wage for each hour of working time in excess of 40 hours in any week …”  N.J.S.A., 34:11-56a4.

Unfortunately, due to insufficient budgeting, the New Jersey Department of Labor and Workforce Development (“NJDOL”) is currently experiencing a shortage of enforcement staff capable of charging those who violate the State’s NJWHL. Consequently, companies too often believe they can get away with violating New Jersey’s labor laws regarding wages, classification, and benefits. In turn, the NJDOL’s over-extension comes at a cost to those legitimate companies who are unwilling to take advantage of the situation by paying workers less or providing them less benefits. As New Jersey Senate Republican Leader Tom Kean recently stated, “[i]t’s hard for honest firms that follow the rule to compete for work when they’re paying the full wages, taxes, and insurance that their shady competitors often dodge.” However, to address this untenable situation, New Jersey State Senators Oroho [R], Kean [R], Troy Singleton [D] and Joe Pennacchio [R] are calling for the swift passage of Bill S-3954, establishing the creation of the Office of Labor Law Enforcement (“OLLE”) within the New Jersey Department of Labor and Workforce Development.

Hoping to foster fairer economic competition among businesses in the labor sector and “level the playing field,” the proposed legislation seeks to grant the OLLE referee-like authority to “oversee, evaluate, and coordinate enforcement activities of the department regarding violations of the provisions of labor laws, including provisions regarding wages and other terms and conditions of employment…the misclassification of employees, made by employers, employees, or other persons to wrongfully obtain or wrongfully deny or delay the full payment of wages and benefits, or pay less than the premiums, contributions, or taxes which are required by the provisions of State labor laws.” To ensure such enforcement, “[t]he bill directs the Attorney General, upon a request by the Commissioner of Labor and Workforce Development, to assign one or more deputy attorneys general to represent the department in proceedings regarding State labor law violations…”

Employer dress codes aimed toward the legitimate business interests of professionalism, safety, hygiene and neatness are legal. However, natural hair or hairstyles associated with African Americans, such as dreadlocks, have been historically stereotyped and perceived as unprofessional against Euro-centric standards of beauty. A simple google search of “unprofessional hairstyles” reveals many images of African Americans in natural hair or braids. This sort of discrimination has subjected people across the United States to “dignitary, psychological, physiological, and financial harm.” Federal, state and local government entities have long recognized that policies which “discriminate against traditionally Black hairstyles… qualify as discrimination on the basis of race.” See EEOC Dec. No. 71-2444, 1971 WL 3898, (1971) (“the wearing of an Afro-American hair style by a Negro has been so appropriated as a cultural symbol by members of the Negro race as to make its suppression either an automatic badge of racial prejudice or a necessary abridgment of first amendment rights.”).

Recent increased incidents of discriminatory hair-grooming policies and practices directed towards people of color in schools and the workplace has brought renewed attention on this issue. For example, a white New Jersey referee forced a black high school wrestler to cut his dreadlocks before a match or face disqualification; a 6 year boy in Florida was barred from attending a private Christian academy on his first day of school because his hair extended below his ears; and an 11 year old black girl was sent home from a private Roman catholic school in Louisiana because she broke a rule on wearing hair extensions. In 2018, “54 percent of reported bias incidents in New Jersey were motivated by the victim’s race, ethnicity, or national origin. Of those, approximately 72 percent were anti-Black.” See DCR Guidance

As a consequence of this uptick in hair based discriminatory conduct, a growing movement has developed to better protect Black employees from discrimination in the workplace based on hairstyle thereby recognizing the importance of hair to cultural identity and the historically discriminatory treatment people of color have received because of their natural hair. Indeed, this past summer Governor Gavin Newsom of California signed the Crown Act into law making it illegal in California to enforce dress code or grooming policies against hairstyles such as afros, braids, twists and locks.

If you are a frequent reader of this blog, you may know we have written several times in the past about the scourge of forced arbitration.  Forced arbitration prevents workers from being able to sue their employers in court for violating wage and hour, discrimination, whistleblower and other employment laws. Public Citizen, a not-for-profit consumer advocacy group, says that, “Corporations use forced arbitration clauses in contracts as a get-out-of jail free card” and point out how corporate apologists for arbitration argue it is a cheaper alternative to lawsuits when in practice it serves as a tool used to cheat employees out of their day in court. And according to Public Citizen, more than 60 million workers are subject to forced arbitration; by 2024 it is expected that more than 80% of private sector, nonunion workers will be subject to forced arbitration. Likewise, forced arbitration stops consumers from being able to vindicate their rights and recover damages before an impartial judge and jury. Indeed, the Economic Policy Institute reports that individual consumers seeking relief in arbitration win just 9% percent of the time.

The Federal Arbitration Act (FAA) was enacted in 1925 with the goal of ensuring the enforcement of arbitration agreements in any “maritime transaction or … contract evidencing a transaction involving commerce[.]” 9 U.S.C. § 2. The U.S. Supreme Court (Court) has recognized the FAA as evidencing “a national policy favoring arbitration.” Southland Corp. v. Keating, 465 U.S. 1, 10 (1984). New Jersey not only follows the FAA; it has also enacted its own state legislation endorsing a public policy favoring arbitration agreements.  The New Jersey Arbitration Act, N.J.S.A., 2A:23B-1 to 32,  is similar to the federal statute in many respects, and provides that “[a]n agreement … to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.”

While giving full force and effect to the FAA and the New Jersey Arbitration Act, New Jersey courts have repeatedly demonstrated their discomfort with the lack of opportunity for meaningful consent afforded to workers who are often faced with a choiceless “take it or leave it” job scenario when it comes to consenting to arbitration. In Skuse v. Pfizer, Inc., 457 N.J. Super. 539 (App. Div. 2019), our Appellate Division required clauses purporting to indicate agreement to arbitration be clearly received and acknowledged by employees, especially when the forced agreement is part of a “training” web video.  In  Kernahan v. Home Warranty Admin. of Fla., Inc., 236 N.J. 301 (2019), the New Jersey Supreme Court found that using the heading “Mediation” for an arbitration clause might cause the average reader some confusion, especially when the clause said the arbitration would be governed by the designated forum’s non-existent “Commercial Mediation Rules.” An appellate court in Alexander Defina v. Go Ahead and Jump 1, LLC, 2019 N.J. Super. Unpub. LEXIS 1404 (App. Div. 2019), held that language waiving a “trial” in favor of arbitration did not sufficiently inform a consumer or employee that arbitration is different from having his or her claim determined by a court or jury which is the test required by Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014).

The Americans with Disabilities Act of 1990 (“ADA”) protects physically and mentally disabled employees from discrimination. Under the ADA, employers who fail to provide reasonable accommodations to people with disabilities may be found liable for discrimination. See Colwell v. Rite Aid Corp., 602 F.3d 495, 504-05 (3d Cir. 2010). As a rule, courts generally construe the New Jersey Law Against Discrimination (LAD) more liberally than the ADA.  See  Failla v. City of Passaic, 146 F.3d 149, 154 (3d Cir. 1998) (noting that LAD provides a ‘lower standard’ than ADA because ‘the LAD definition of ‘handicapped’ does not incorporate the requirement that the condition result in a substantial limitation on a major life activity’)

When an employee notifies an employer of their disability and requests accommodations, employers are obligated to engage in a good faith interactive process with them in identifying reasonable accommodations. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 319 (3d. Cir. 1999). In fact, according to a recent Third Circuit decision in Lewis v. Univ. of Pa., 2019 U.S. App. LEXIS 23818 (3rd Cir. 2019), an employer cannot arrive at an accommodation for an employee’s disability without first seeking and considering in good faith the employee’s input.

In Lewis, a University of Pennsylvania (“UPenn”) Police Officer suffered from the skin condition Pseudofolliculitis Barbae (“PFB”).  PFB is a common condition of the beard area occurring in up to 60% African American men and other people with curly hair. The problem results when highly curved hairs grow back into the skin causing inflammation and a foreign body reaction; often this takes the form of keloidal scarring. https://www.aocd.org/page/PseudofolliculitisB.  Because of his PFB condition, Lewis requested UPenn to accommodate his disability by permanently exempting him from their grooming policy requiring him to periodically shave his face and neck.

Employment Arbitration Agreements typically force employees to resolve legal disputes with their employer through an opaque process controlled by a privately retained arbitrator, rather than publicly through our relatively transparent jury-based court system. These privately retained arbitrators often favor the large corporation employers who provide them repeat business as opposed to the typical “one and done” worker. Further, arbitrators are not bound by the same rules, legal precedents, and public oversight that judges are when making their decisions. Usually the only issue of arbitration that can be resolved by our courts is the “gateway dispute about whether the parties are bound by a given arbitration clause” Howsam v. Dean Witter Reynold, 537 U.S. 79, 84 (2002), that is, whether the parties entered into a valid and binding arbitration agreement.

In a limited response to the unfairness forced arbitration agreements impose on employees, Congress included a provision in the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16 exempting certain employees from its authority. Section 1 of the FAA provides that “nothing herein shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign interstate commerce.Id. Our courts often hold that transportation workers fall into the “class of workers engaged in foreign interstate commerce” that are excluded from FAA coverage, and thus are not bound by arbitration agreements. However, recently, in Singh v Uber Techs. Inc., 2019 U.S. App. the Third Circuit was asked to determine the limits of this exemption.

In Singh, an Uber driver in New Jersey brought a class action lawsuit in District Court against Uber for misclassifying their drivers as independent contractors as opposed to employees claiming such a misclassification deprives the drivers from receiving overtime pay. Based on an arbitration agreement between the parties, Uber moved the District Court to dismiss the case under the FAA and have Singh resolve the matter by bringing it to an arbitrator. Singh argued that the District Court did not have the authority to compel arbitration under the FAA as he was a transportation worker excluded from FAA coverage as “any other class of worker engaged in interstate foreign commerce” under Section 1. Uber argued, and the District Court agreed, that only transportation workers that transport goods, not those who transport passengers, are excluded by the residual clause of Section 1 in the FAA. Id. at *13. (“a court must be satisfied that this clause does not apply before making an order that the parties proceed to arbitration”).

Neither the language of an employment agreement, nor the label an employer places on an employee, determines eligibility for unemployment benefits; rather, it is the substance of the business relationship which does. Law Office of Gerard C. Vince v. Bd. of Review, 2019 N.J. Super. Unpub. LEXIS 1846, (decided on September 4, 2019). In Vince, a law firm agreed to hire a “consulting paralegal” on a temporary basis to integrate their files onto a web-based computer software system. Id. at *2. The law firm identified which files it wanted integrated but never instructed the paralegal on how to do so; nor did it precisely determine when or where she would do so. Id. at *2-3. The paralegal was paid according to her chosen hourly rate based on the invoices she presented. To confirm their relationship, the law firm had the paralegal sign a Consulting Paralegal Understanding (CPU), stating that she was hired as “an independent contractor and as such are not an employee…subject to receive unemployment or other employee related benefits.” Id. at *3. However, when those services ended, she decided to file an unemployment benefits claim with the Department of Labor and Workforce Development (“DOL”) and was approved.

Generally, under New Jersey’s Unemployment Compensation Law (UCL), N.J.S.A. 43:21-1 to 24.30, employers are obligated to provide compensation benefits to eligible employees who have been terminated.  However, if an employer can show the individual was not an employee, but rather a consultant providing specific services, and if the employer can meet the three-part “ABC test” as outlined in N.J.S.A. 43:21-19(i)(6), unemployment benefits may be denied.  The ABC test requires the employer to demonstrate: (A) the individual retained has been and will continue to be free from the employer’s control or direction over the performance of such service; (B) the service performed is outside the usual course of services the business provides, or performed outside of the places where such services are performed; and (C) the individual is customarily engaged in an independently established occupation. See Schomp v. Fuller Brush Co., 124 N.J.L. 487 (Sup. Ct.1940); and Hargrove v. Sleepy’s, LLC, 220 N.J. 289, 305 (2015).

Pointing to the CPU, the law firm in Vince contested the DOL’s determination that the consulting paralegal was eligible for benefits. Both the Appeal Tribunal (“Tribunal”) and the Board of Review (“Board”) upheld the Department’s decision, stating that the CPU’s language was “not determinative,” and the firm did not satisfy each part of the ABC test. Vince at *3. On appeal, however, the Appellate Division (“Division”) reversed the above rulings, not because of CPU’s terms, but because after analyzing the totality of the factual circumstances, it was clear both the Tribunal and Board “made certain findings that are not accurate,” and the law firm satisfied all three elements of the ABC test. Id. at *5.

The exclusive remedy for a worker injured on the job is to pursue workers compensation benefits under New Jersey’s Workers Compensation Act (WCA) in the form of authorized medical treatment, temporary disability benefits and a partial permanency award to the extent applicable.[1]  Relatedly, New Jersey’s Law Against Discrimination (LAD) requires an employer to reasonably accommodate an employee’s disability.  N.J.A.C., 13:13-2.5; Potente v. County of Hudson, 187 N.J. 103, 110 (2006). Given this intersection of the WCA and the LAD, our New Jersey Supreme Court in Caraballo v.  Jersey City Police Dep’t, 237 N.J. 255 (2019) was called on in a case of first impression to determine whether an employee seeking to have his employer cover his double knee replacement surgery after suffering a serious work-related injury could pursue a failure to accommodate disability discrimination case under the LAD. The Court answered that the employee could not.

Looking to federal courts interpretation of the American with Disabilities Act (ADA) for guidance, the Court in Caraballo noted that that neither the text of the ADA nor its regulations “contemplate that an employer should be required to provide a disabled employee with medical treatment in order to restore her ability to perform essential job functions.”  Caraballo, 237 N.J. at 270 quoting Desmond v. Yale-New Haven Hosp., Inc., 738 F.Supp. 2d 331, 350 (D. Conn. 2010). Likewise, the Caraballo Court looked at the Equal Employment Opportunity Commission’s compliance manual, which states that “an employer has no responsibility to monitor an employee’s medical treatment or ensure that s/he is receiving appropriate treatment because such treatment does not involve modifying workplace barriers.” Caraballo, 237 N.J. at 269; Desmond, 738 F. Supp. 2d. at 350 quoting EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Compliance Manual § 92, No. 915.002 (Oct. 17, 2002).  Accordingly, the Caraballo Court held that the double knee replacement surgery sought by Plaintiff Caraballo was neither a modification to the work environment nor a removal of workplace barriers. Rather, “it was a means to treat or mitigate the effects of his injuries, like the treatments at issue in Desmond. We therefore find it consistent with the LAD, the ADA, and their regulations that Caraballo’s total knee replacement surgery cannot qualify as a reasonable accommodation under the LAD.” 237 N.J. at 271.

In ruling against Caraballo, the Court took note of the fact that although Caraballo requested his employer to provide him with double knee replacement surgery, he never used the enforcement mechanism of filing a petition in the workers compensation court to seek entry of an order compelling the employer and its insurer to provide him the surgery. Specifically, he refused to comply with his employer’s requests to see doctors that could “determine unequivocally whether or not he could have surgery.” 237 N.J. at 260.  When the employer’s chosen doctor authorized Caraballo’s knee surgery and told him to schedule a surgery date, he never called. Id. at 261. Even though Caraballo contacted his employer’ “several times to obtain authorization for double knee replacement surgery [he] never sought to enforce his right to the surgery in the workers’ compensation court.” Id.  at 258. Each time he disagreed with what was offered by his employer or refused to comply with their requirements to receive treatment, he failed to file a complaint with the workers’ compensation court. Therefore, regardless of the Court’s ruling that an employer was under no obligation under the LAD to reasonably accommodate a worker by providing him or her with medical treatment, Caraballo’s failure under the WCA to compel the surgery was fatal to his LAD claim. 237 N.J. at 266.

After two years of litigation in federal court, U.S. District Court Judge Peter Sheridan ordered Wawa, Inc. (Wawa) to pay $1.4 million in order to settle a class action lawsuit filed against it by assistant store managers called “Assistant General Managers” (AGMs) who alleged violations of the Fair Labor Standards Act (FLSA). In January 2018, Plaintiffs moved to conditionally certify a collective action based on allegations that Wawa misclassified them along with other similarly situated AGMs as being exempt under FLSA i.e., not eligible for overtime pay, and by doing so, failed to pay them overtime for hours worked in excess of 40 hours per week. Gervasio v. Wawa, Inc., 2018 U.S. Dist. LEXIS 4899 (D.N.J. January 11, 2018).

In filing their 2017 complaint against Wawa, plaintiffs alleged they were deliberately “mislabeled” as managers under the FLSA when their duties did not actually reflect managerial duties and their duties were more akin to the duties of other hourly wage employees working at the stores. Id. at *2. However, because they were labeled as managers by Wawa, they were classified as exempt employees and therefore not entitled to overtime wages they would have otherwise earned under the FLSA. Id. Although Wawa eventually re-classified its AGMs as nonexempt employees in December 2015, plaintiffs continued to seek recovery of backpay for the unpaid overtime hours they worked prior to this reclassification. Plaintiffs claimed they worked between 50-55 hours during weeks in which they worked five or more shifts but did not get paid for any time worked exceeding 40 hours. Id.

While nonexempt employees, i.e., employees eligible to receiver overtime pay, are covered by the overtime protections of the FLSA, exempt employees are not. Exempt versus nonexempt employee status depends on three factors: (1) how much the employee is paid, (2) how the employee is paid, and (3) the type of work that the employee performs for his or her employer. Generally, an employee is exempt if he or she is paid at least $23,600 per year, is paid on a salary basis, and (3) performs exempt job duties, namely executive, professional, or administrative duties for the employer. To fall within the “executive exemption,” an employee must meet the following criteria: “(1) the employee receives compensation on a salary basis, (2) [his or] her primary duty is management of a recognized department, (3) [he or] she customarily and regularly directs the work of two or more employees, and (4) [he or] she has authority to hire or fire employees.” Id. at *7 (quoting Essex v. Children’s Place, Inc., 2016 U.S. Dist. LEXIS 108853 at *9 (D.N.J. Aug. 16, 2016)).

To ensure all New Jersey employees are fairly and timely compensated for their work, Acting New Jersey Governor Sheila Oliver signed S1790 into law this week which amends the existing New Jersey Wage Payment Law (NJWPL) to provide significantly more protections for employees who have been victims of wage theft. The new law makes it a disorderly persons offense for employers to fail to pay wages when due as required by law, or fail to pay compensation or benefits within 30 days when due.

An employer found to have violated the NJWPL as amended will now be required to pay the victimized employee his or her wages owed in addition to liquidated damages equal to 200% of the wages owed as well as reasonable costs of the action to the employee. The employer will also be fined $500 plus a penalty equal to 20% of any wages owed for the first offense, followed by $1,000 plus a penalty equal to 20% of any wages owed for each subsequent offense. Supporters of the new legislation hope that its stricter penalties for violations will hold employers accountable for unpaid wages more than the existing wage and hour legislation does. “Above all else, this law is about workers’ rights. Employers in New Jersey should be held to a high standard to treat their employees with the decency and legality they deserve. No one should be withheld one penny of the wages they are legally entitled to,” said Assemblyman Wayne DeAngelo, who sponsored the bill before it was signed into effect.

S1790 also prohibits employers’ retaliatory conduct by increasing the penalties against employers who retaliate against employees for filing wage complaints. Any such employer who does so commits a disorderly persons offense and upon conviction, is required to pay a fine between $100 to $1000. The employer is also liable to the employee for all wages lost as a result of the retaliation as well as damages equal to 200% of the wages lost as a result of the retaliation, and reasonable costs of the action to the employee. If the employee was retaliatorily discharged, the employer is required to offer reinstatement, unless the reinstatement is prohibited by law.