New Jersey Releases Required Misclassification Notice

Seyfarth Shaw LLP

Seyfarth Synopsis: New Jersey’s Department of Labor and Workforce Development released the required notice pertaining to misclassification of employees, which must be conspicuously posted by New Jersey employers. The law went into effect on April 1, however, the poster did not become available until recently and should be posted immediately to ensure compliance with this new requirement.

As part of a package of six laws pertaining to independent contractor misclassification, New Jersey passed Assembly Bill 5843, requiring employers “to conspicuously post notification, in a place or places accessible to all employees in each of the employer’s workplaces,” which is now available here, pertaining to the following:

1. An explanation of the prohibition for employers to misclassify its workers;

2. The standard that is applied by the Department of Labor and Workforce Development (“LWD”) to determine whether one is an employee or an independent contractor. The LWD’s current test is as follows:

a. The individual has been and will continue to be free from control or direction over the performance of work performed, both under contract of service and in fact;

b. The work is either outside the usual course of the business for which such service is performed, or the work is performed outside of all the places of business of the enterprise for which such service is performed; and

c. The individual is customarily engaged in an independently established trade, occupation, profession or business.

3. The benefits and protections to which an employee is entitled under State wage, benefit and tax laws;

4. The remedies to which workers affected by misclassification may be entitled under New Jersey law; and

5. Information on how a worker or a worker’s authorized representative may contact, by telephone, mail and e-mail, a representative of the commissioner to provide information to, or file a complaint with, the representative regarding possible worker misclassification.

The law also prohibits an employer from retaliating against a worker who complains to his/her employer or the LWD regarding possible worker misclassification.

For more information about the other protections for independent contractors passed as a part of this series of laws, including stop-work orders and financial penalties, and joint and individual liability for misclassification, please see our prior post here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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