September 28, 2021

Volume XI, Number 271

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September 27, 2021

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New Laws Passed in New Jersey Designed to Identify and Penalize Employers Who Misclassify Employees as Independent Contractors

Since taking office, New Jersey Governor Phil Murphy has prioritized eliminating misclassification of employees as independent contractors.  In furtherance of this goal, on July 8, 2021, Governor Murphy signed four bills into law which make it easier for the state to (i) identify employers who misclassify employees as independent contractors, and (ii) penalize employers for such misclassification.  Highlights from each of these four laws are summarized below:

  • A-5890/S3920: Stop Work Orders and Injunctions

    • Authorizes the Commissioner of Labor and Workforce Development (the “Commissioner”) to impose penalties and administrative constraints on employers through litigation. Notably, the law expands the authority of the Commissioner to issue stop-work orders for businesses found to be violating wage, benefit, and tax laws.  Significantly, workers affected by stop-work orders must be paid by their employer for the first ten (10) days of work lost because of the stop-work order.  If an employer fails to pay wages owed, the Commissioner may assess a penalty of $5,000 per day for each day that the employer conducts business that is in violation of the stop-work order.  Additionally, the law permits the Commissioner to file suit in New Jersey Superior Court and seek an immediate injunction to prevent ongoing violations of wage, benefit, and tax laws.  If successful, the Commission can recover reasonable attorneys’ fees, as well as litigation and investigation costs.  This law went into effect on July 8, 2021.

  • A-5891/S-392: Creation of the Office of Strategic Enforcement and Compliance

    • Creates the “Office of Strategic Enforcement and Compliance” in the Department of Labor and Workforce Development. This office is responsible for overseeing and coordinating across the divisions of the department and other state agencies and entities, the enforcement of wage, benefit and tax laws.  This law went into effect on July 8, 2021.

  • A-5892/S-3922: Violation of New Jersey Insurance Fraud Prevention Act to Misclassify Employees in Order to Evade Insurance Premium Payments

    • Makes misclassifying employees as independent contractors to evade insurance premium payments a violation of the New Jersey Insurance Fraud Prevention Act (“NJIFA”). Employers who “purposely” or “knowingly” misclassify employees under the NJIFPA may be subject to penalties for fraud that include fines starting at $5,000 for the first violation, $10,000 for the second violation, and $15,000 for each subsequent violation.  This law goes into effect on January 1, 2022.

  • A-1171/S-1260: Creation of Statewide Database of Payroll Information for Public Works Projects

    • Requires the Commissioner to create a statewide database of certified payroll information for public works projects. The database must be accessible to the public on the Department of Labor and Workforce Development’s website.  This law goes into effect on January 1, 2022.

In light of this recent legislation, New Jersey employers should review, and update as necessary, their handbooks, policies and independent contractor agreements to ensure compliance. 

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XI, Number 256
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About this Author

James Hays, Legal Specialist, management of labor and employment law
Partner

 Mr. Hays is a partner in the Labor & Employment Practice Group in the firm's New York office and co-chairs the firm's Traditional Labor Law Team.

Areas of Practice

Mr. Hays' practice focuses on management labor and employment law. He represents clients in collective bargaining negotiations, labor arbitrations, and all stages of the labor election process, including election campaigns and hearings before the National Labor Relations Board. He also represents clients in employment litigation in federal and state courts, as well as...

212-634-3025
Sean Kirby, Legal Specialist, Sheppard Mullin, Labor, Employment
Associate

Sean Kirby is an associate in the Labor and Employment Practice Group in the firm's New York Office.

Areas of Practice

Mr. Kirby has experience representing management in a variety of employment-based matters in both judicial and arbitral forums, including disputes relating to discrimination and harassment allegations, breach of restrictive covenants and employment agreements, and wrongful termination.  Mr. Kirby also counsels employers on labor and employment issues, including wage and hour matters, personnel policies and internal investigations. In addition...

212-634-3023
Jamie Moelis Labor & Employment Attorney Sheppard Mullin New York, NY
Associate

Jamie Moelis is an associate in the Labor and Employment Practice Group in the firm's New York office. 

Areas of Practice

Jamie’s practice focuses on representing employers in a wide array of labor and employment subject areas including: wage/hours claims, the defense of single plaintiff and class action discrimination, sexual harassment, hostile work environment, retaliation, wrongful termination, and related claims. Jamie also regularly advises and counsels clients on various employment practices, such as new hire issues, employee handbooks, leaves of...

212-653-8191
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