A great many of our cases involve discrimination and retaliation. We are heavily involved in cases of discrimination based on race, disability, gender, national origin, and ethnicity.
The New Jersey Wage and Hour Law
The New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a to -56a38, governs the minimum hourly wage to be paid to certain employees working in New Jersey, as well the circumstances under which such employees are entitled to be paid overtime wages. N.J.S.A. 34:11-56a4. While the Federal minimum wage rate, as of January 2015, is $7.25 per hour, the New Jersey Wage and Hour Law establishes a minimum hourly wage for covered employees of $8.38 for 2016; N.J.A.C. 12:56-3.1(a). The New Jersey State Assembly and Senate both recently approved bills that would increase the minimum wage to $15 per hour. However, Governor Chris Christie is expected to veto the measure.
Although New Jersey’s Wage and Hour Law provides for a higher minimum wage than the current federal minimum, it follows the federal standard for overtime under the federal Fair Labor Standards Act, which requires that eligible employees be paid 1 ½ times their regular hourly wage for each hour they work in excess of 40 hours per week.
However, the New Jersey Wage and Hour Law, like the federal Fair Labor Standards Act, also contains a number of exemptions which exclude certain employees from eligibility for overtime, even if they work in excess of 40 hours per week. For example, the overtime requirements of the New Jersey Wage and Hour Law do not apply to any individual employed in a “bona fide executive, administrative, or professional capacity.” N.J.S.A. 34:11-56a4. Similarly, New Jersey regulations pursuant to the New Jersey Wage and Hour Law exempt “outside sales persons” from the overtime requirements of the New Jersey Wage and Hour Law. N.J.A.C. 12:56-7.4. Although the law and its regulations do not expressly state that this exemption also exempts these employees from minimum wage requirements, courts have interpreted the exemption as applying not only to overtime, but also to minimum wage. See Luscko v. Southern Container Corp., 2009 U.S. Dist. LEXIS 119365 (D.N.J. Dec. 23, 2009), aff'd, 408 Fed. Appx. 631, 2010 U.S. App. LEXIS 24495 (3d Cir. N.J. 2010).
Further, the New Jersey Wage and Hour Law’s minimum wage and overtime requirements do not apply to “independent contractors.”
The “ABC” Test Determines Who is a Covered Employee vs. an Independent Contractor
The New Jersey Supreme Court recently held that the test for whether someone is an employee who is eligible for the minimum wage requirements and overtime under the New Jersey Wage and Hour Law, as opposed to an independent contractor, is the same “ABC” test courts use to determine whether an individual is an employee for purposes of receiving unemployment benefits under the New Jersey Unemployment Compensation Act, N.J.S.A. § 43:21-19(i)(6). Hargrove v. Sleepy’s, LLC, 220 N.J. 289, 303-304 (2015). Under the “ABC” test, an individual who performs services for an employer is presumed to be a covered employee (as opposed to an independent contractor), unless the employer can meet all of the following three tests: (A) the 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; (B) the service is either outside the usual course of business of the enterprise for which such service is performed, or such service 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. N.J.S.A. § 43:21-19(i)(6). The failure to satisfy any one of the three criteria results in the individual being deemed an employee for purposes of coverage under the New Jersey Wage and Hour Law.
Do you believe you have not been paid the proper minimum wage or overtime? It’s important to act quickly to find out if you may have a claim under the New Jersey Wage and Hour Law. Since every situation is different, an experienced New Jersey employment attorney can help you fully understand your rights under the New Jersey Wage and Hour Law.
The attorneys at Hyderally & Associates are ready to help you. They have experience working with the New Jersey Wage and Hour Law, so they can review your situation to provide information that will help you decide if you would like to pursue a claim against your employer under the New Jersey Wage and Hour Law. Call an experienced employment attorney in New Jersey at (973) 509-8500.
This article is for informational purposes only. It does not constitute legal advice, and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This article may constitute attorney advertising. This article is not intended to communicate with anyone in a state or other jurisdiction where such an article may fail to comply with all laws and ethical rules of that state or jurisdiction.
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