New Jersey Governor Phil Murphy’s attention to employee-friendly workplace laws shows no sign of waning. In May 2018, Gov. Murphy signed Executive Order No. 25, which established the Task Force on Employee Misclassification. The Task Force, charged with advising the governor’s office on strategies to effectively combat employee misclassification and ensure compliance with wage and hour laws, comprises representatives from various state governmental agencies, including the Departments of Labor and Workforce Development (DOL), Treasury, Agriculture, Banking and Insurance, and Transportation. On July 9, 2019, after the Task Force held public forums throughout the state, where it allowed employers, employees and subject matter experts to voice comments and concerns about misclassification, it published a report with its recommendations to combat misclassification.
The report defines misclassification as “the practice of illegally and improperly classifying workers as independent contractors, rather than employees,” and claims that there has been an uptick in the number of misclassifications throughout the country, and specifically in New Jersey. Significantly, minimum wage and overtime laws apply to employees, but do not apply to independent contractors. Currently, the “ABC test,” adopted by the New Jersey Supreme Court in Hargrove v. Sleepy’s, 220 N.J. 289 (2015), is used to determine whether a worker should be classified as an employee or independent contractor. The “ABC test” presumes that an individual is an employee, unless the employer demonstrates:
(A) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and
(B) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
(C) Such individual is customarily engaged in an independently established trade, occupation, profession or business.
