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New Jersey Acting AG Announces Support of Stronger Federal Protections

By Thomas McKinney

Employment law evolves just like any other area of the law. It is important to stay as current as possible with employment law happenings for both employers and employees alike. Changes can have important and significant impacts on all. Recently, Acting New Jersey Attorney General Andrew J. Bruck announced that New Jersey is pushing for stronger protections for workers at risk of being misclassified as independent contractors by employers. Why is New Jersey making this a priority? Read on to learn more. 

New Jersey Acting AG Announces Support of Stronger Federal Protections Against Worker Misclassification

New Jersey Governor Murphy has made it a priority of his administration to address the persistent problem of workers being misclassified as independent contractors. To help tackle this problem, the Murphy Administration established a Task Force on Employee Misclassification back in 2019. The report generated by the task force found that there has been a 40 percent increase in employee misclassification in New Jersey over the past 10 years. Some industries, particularly those with significant numbers of low-wage and vulnerable workers, have experienced disproportionately high rates of misclassification.  These industries include:

  • Construction
  • Home Care
  • Hospitality
  • Janitorial services
  • Retail
  • Trucking
  • Transportation

Acting AG Bruck announced in February that New Jersey would be co-leading a multistate effort in support of the National Labor Relations Board (NLRB) adopting stronger protections against worker misclassification. You see, some employers are misclassifying workers as independent contractors as opposed to them being classified as employees. Misclassification, however, can end up depriving workers of earned wages, critical workplace benefits, as well as the power to organize. Other benefits that workers who are classified as independent contractors as opposed to employees miss out on include:

  • Minimum wage
  • Earned sick leave
  • Overtime pay
  • Unemployment benefits
  • Temporary disability benefits
  • The right to collectively bargain with the employer

Because of the numerous disadvantages misclassified workers can experience, Acting AG Buck has made it clear that protecting workers against misclassification is a New Jersey priority. The protections New Jersey is hoping to have put in place are set to be established through the NLRB adopting a standard for determining a worker’s status that is more protective of the worker. There are many legal protections that are afforded to employees, but not independent contractors, and so the standard for this determination is important.

The current NLRB standard for determining a worker’s status was adopted in 2019. This standard allowed employers to classify workers as independent contractors if they could show that the worker appeared to have access to “entrepreneurial opportunity” which is comparable to the running of an independent business. The 2019 standard replaced a more stringent standard that set forth multiple factors that must be considered in determining whether or not to classify workers as independent contractors. One such factor to be considered was the extent to which the employer had control over an individual’s work. New Jersey Acting AG Buck filed an amicus brief arguing a return to this previous, more stringent standard, or, in the alternative, putting stronger safeguards in place.

Employment Law Attorneys

To get the most up-to-date information and counsel on the current state of employment laws in New Jersey, talk to the team at Castronovo & McKinney. Contact us today.

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.