The ADA states that employers may not “discriminate against a qualified individual on the basis of disability in regard to… employee compensation” and other matters. The statute defines a “qualified individual” as someone who can “perform the essential functions” of a job the person “holds or desires,” either without assistance or with reasonable accommodations. The meaning of the words “holds or desires” was at the center of the Supreme Court case.

The plaintiff in Stanley v. City of Sanford began working as a firefighter for a city fire department in 1999. She was diagnosed with a chronic illness in 2016, and as a result had to retire from the fire department in 2018 after approximately nineteen years on the job.

When the city hired the plaintiff in 1999, it offered subsidized health insurance until the age of 65 to retirees in two groups:
– Individuals who retired after at least 25 years with the department; and
– Individuals who retired after less than 25 years because of a disability.
The city changed this policy in 2003 as follows:
– Individuals who retired after 25 or more years were still eligible for subsidized health insurance until age 65;
– Individuals who retired earlier because of a disability were only eligible for subsidized health coverage for 24 months after retirement.

Thus, the plaintiff did not meet the criteria for subsidized healthcare coverage until age 65 because her illness forced her to retire early. Her eligibility for subsidized coverage ended in 2020. She filed suit against the city, alleging that it violated the ADA by providing different healthcare coverage benefits to retirees based partly on disability.

The district court dismissed her lawsuit. It agreed with the city’s argument that the plaintiff did not have standing to sue because she was not a “qualified individual” under the ADA. The Court of Appeals affirmed the ruling, and the plaintiff appealed to the Supreme Court.

The Supreme Court affirmed the lower court rulings. The decision was largely based on the ADA’s use of the present tense in its definition of “qualified individual.” The words “holds or desires,” the court held, indicate that ADA protections apply to people who have a job or are seeking one at the time of the alleged discrimination. As a retiree, the plaintiff no longer fell under the ADA.

The court distinguished the ADA from Title VII of the Civil Rights Act of 1964. That statute has no “temporal qualification,” so it can protect former employees in some situations.

Employees and job seekers in New Jersey and New York may be able to claim compensation if an employer has engaged in unlawful disability discrimination. The knowledgeable and skilled employment lawyers at the Resnick Law Group are available to offer advice and advocacy. Please contact us at 973-781-1204 or online today to schedule a confidential consultation with a member of our team.

Section 8(a) of the NLRA identifies “unfair labor practices by employer[s].” These include:
· Interfering with the rights guaranteed by § 7 of the statute, such as employees’ right “to bargain collectively through representatives of their own choosing”; and
· Refusing to participate in collective bargaining with the employees’ lawfully elected representatives.

The Third Circuit case involved a nursing home in Guttenberg, New Jersey. Like many healthcare facilities, it “experienc[ed] extreme operational difficulties” when the COVID-19 pandemic began in early 2020. The union representing the facility’s employees also experienced difficulties. The collective bargaining agreement (CBA) required the employer to allow union representatives to visit the facility. The shelter-in-place orders enacted in the early days of the pandemic made that impossible.

According to the court’s opinion, the union sent a letter to the employer reminding it that any changes to “wages, hours, benefits, or any other term or condition of employment” required notice to the union and a chance to negotiate. The following day, the employer notified its employees that it was providing “a special COVID19 hourly rate bonus” of 25% over their regular pay rate for hours worked. It issued additional “bonuses” in April 2020, including a 100% bonus for nursing staff.

The union learned of these pay increases from its members, not the employer. It informed the employer that it agreed with the pay raises, but reminded it of its obligation to give the union advance notice.

The employer notified employees at the end of April 2020 that it would begin scaling the bonuses back. Again, it did not notify the union. Most of the employees were back to their pre-COVID pay rates by the end of summer 2020.

The union’s general counsel filed a complaint against the employer in August 2021 alleging that the employer violated the NLRA by reducing the employees’ pay without notifying it. An Administrative Law Judge ruled for the employer, but the Board reversed this ruling. It found that these bonuses were wages because they were tied to “employment-related factors” like attendance, and that the employer therefore violated the NLRA by failing to notify and negotiate with the union. The Third Circuit affirmed this ruling in December 2024.

If you believe your employer has engaged in unlawful workplace practices and violated your rights in New Jersey or New York, you do not have to fight alone. Contact the knowledgeable employment attorneys at the Resnick Law Group today online or by calling 973-781-1204 or 646-867-7997 to schedule a confidential consultation.

The Backstory: Commissions on PPE Sales Sparks Legal Battle
The case arose when Rosalyn Musker, a sales employee of Suuchi, Inc., sought commissions for her sales of personal protective equipment (PPE) during the COVID-19 pandemic. After Musker successfully generated significant revenue through these sales, a dispute arose regarding the amount of commission she was owed and whether these commissions qualified as “wages” under the WPL.

The trial court initially sided with the employer, arguing that the PPE commissions were “supplementary incentives” designed to motivate Musker beyond her regular duties and were therefore excluded from the WPL’s definition of wages. The Appellate Division affirmed this decision.

The Supreme Court’s Decisive Ruling: Commissions are Wages, Not Just Incentives
In a clear and unambiguous opinion, the New Jersey Supreme Court reversed the lower courts’ rulings. Justice Fasciale, writing for the Court, emphasized the plain language of the WPL, which defines “wages” as “direct monetary compensation for labor or services rendered by an employee, where the amount is determined on a time, task, piece, or commission basis.”

Why This Ruling Matters for New Jersey Employees
This decision is a significant victory for employees in New Jersey who are compensated, in whole or in part, through commissions. By affirming that commissions are “wages,” the Supreme Court has ensured that they will be subject to the timely payment requirements and other safeguards of the WPL. Employers now cannot arbitrarily withhold earned commissions without facing potential legal consequences.

If you believe your earned commissions have been improperly withheld by your employer, it is crucial to understand your rights under the New Jersey Wage Payment Law. Contact the Resnick Law Group today at (973) 781-1204 for a confidential consultation to discuss your situation and explore your legal options.

The WHL and other laws allow employees to sue for misclassification. New Jersey has two statutes that impose administrative penalties and other consequences on employers that misclassify workers:

1. A law passed by the state legislature in 2019 that establishes administrative penalties for most employers in the state; and
2. The Construction Industry Independent Contractor Act (CIICA), passed in 2007, which imposes criminal penalties on supervisors, managers, or other individuals who misclassify construction workers. The severity of the penalties depends on the circumstances.

The 2019 misclassification law does not define the terms “employee” or “independent contractor.” New Jersey courts have adopted the “ABC test” to determine whether a worker should be classified as an independent contractor or employee. This test is favorable to employees and requires the employer to meet strict criteria in order to classify a worker as an independent contractor. The LWD has proposed adopting the ABC test in all its misclassification cases. The CIICA already includes the ABC test in its definition of “employee.”

Under the ABC test, a worker is presumed to be an employee unless the employer can establish three elements:

1. The worker is free from the employer’s control;
2. The worker’s services are outside of the employer’s usual business or away from its places of business; AND
3. The worker has their own “independently established” business or trade.

The 2019 law imposes the following penalties for violations of “a State wage, benefit and tax law” that involves employee misclassification:

1. Up to $250 per employee for a first violation, or up to $1,000 per employee for a subsequent violation; AND
2. Up to 5% of the employee’s gross income for the previous twelve-month period.

Under the CIICA, misclassification is a disorderly persons offense punishable by a fine of $100 to $1,000 and a jail sentence of ten to ninety days. This penalty may apply even if the misclassification was accidental.

If the LWD finds that a construction employer knowingly misclassified an employee — meaning they knew they should have classified the worker as an employee but failed to do so — the responsible person could face criminal liability. The level of the offense depends on the amount of the construction contract:

• $2,500 or less: Crime of the fourth degree
• $2,501 to $75,000: Crime of the third degree
• $75,001 or more: Crime of the second degree

Knowingly misclassifying a construction worker can also result in ineligibility for state construction contracts.

The employment lawyers at the Resnick Law Group are passionate advocates for New Jersey and New York workers. They represent individuals in claims for employee misclassification and other violations of state and federal employment laws. To schedule a confidential consultation to learn how we can help you, please contact us today online or at 973-781-1204.

Section 11(d) of the NJLAD, found at N.J. Rev. Stat. § 10:5-12(d), makes it an “unlawful employment practice” for an employer to “take reprisals against any person” because of certain actions. These actions include:
– Filing a legal complaint alleging NJLAD violations;
– Providing testimony or other assistance in a legal proceeding brought under the NJLAD;
– Seeking legal advice about rights under the NJLAD; and
– Stating one’s opposition to acts that one believes violate the NJLAD.

The NJLAD’s anti-discrimination provisions cover much more than employment discrimination. They also cover discrimination in housing, mortgage lending, consumer credit, banking, and public accommodations. The statute’s anti-retaliation provisions apply broadly to people who oppose any type of discrimination it addresses. In 2010, the New Jersey Supreme Court affirmed a broad view of the NJLAD’s protections against retaliation. It stated in its ruling that the NJLAD’s purpose is both “to fight discrimination wherever it is found…[and] to protect those who assist in rooting it out.”

The DCR’s recent Finding of Probable Cause arises from a case involving a consumer lending company. The business provides cash advances and other financial services to consumers and small businesses. The DCR states that it received a complaint in early 2023 that alleged multiple NJLAD violations, including discrimination against loan applicants on the basis of race or national origin. For example, they claimed that the company “repeatedly instructed [staff members] not to do business with ‘Chinese, African, and Spanish’ prospective clients.”

The complainant further claimed that the company retaliated against them for objecting to discriminatory lending practices, subjected them to a hostile work environment, and constructively discharged them. The constructive discharge allegations include “a barrage of racist memes, gifs, and comments” and the threat of a defamation lawsuit by the company. The complainant also made allegations against two individuals in supervisory roles.

The DCR found probable cause to support the complainant’s allegations against the company of race and national origin discrimination, retaliation, hostile work environment, and constructive discharge. It found probable cause supporting claims that the complainant’s direct supervisor should be held individually liable for retaliation and unlawful interference with the right to a workplace free of discrimination. Finally, it found probable cause to support claims that both individual supervisors named by the complainant aided and abetted the company’s NJLAD violations.

Workers in New Jersey and New York who have experienced unlawful discrimination or retaliation by their employers have the right to claim compensation. Our knowledgeable and experienced employment lawyers can help. Please contact our firm at 973-781-1204 or online today to schedule a confidential consultation to discuss your rights and options.

The NJWPL defines “wages” as money paid to an employee for their “labor or services…on a time, task, piece, or commission basis.” It excludes “supplementary incentives and bonuses” that are not part of an employee’s “regular wages.”

Employers must pay wages at least twice a month for most employees. Each payment must be for the full amount the employee has earned up to that point, with exceptions for certain withholdings like payroll taxes, health insurance premiums, and retirement plan contributions. An employee can file suit to recover unpaid wages. The NJWPL allows them to claim 200 percent of the amount owed as liquidated damages, plus attorney’s fees and court costs.

The plaintiff in the case before the New Jersey Supreme Court worked in a sales position for a software company. When she began working for the company, it sold software to clothing manufacturers. She received a base salary and a commission based on her sales numbers. When the COVID-19 pandemic began in 2020, the company pivoted to Personal Protective Equipment (PPE) sales. The plaintiff reportedly produced over $34 million in PPE sales for the company. A dispute then arose over the commissions owed to her.

The employer disputed the amount of commissions it owed. It also denied that the commissions were “wages” under the NJWPL. It maintained that, since the plaintiff received a base salary, the commissions were “supplementary incentives” that the statute did not consider wages.

The plaintiff filed a lawsuit alleging that her employer violated the NJWPL by withholding her commissions. Both the trial court and the Appellate Division agreed with the employer that the commissions were “supplementary incentives,” not “wages,” for NJWPL purposes. They held that the plaintiff could sue for breach of contract, but not under the wage law.

The New Jersey Supreme Court reversed these rulings in a unanimous opinion. It found that the commission structure at issue counts as “wages.” The court considered the “ordinary meanings” of the terms used in the statute’s definition. It found that a “supplementary incentive” refers to compensation “that motivates employees to do something above and beyond their labor or services.” Since the commission structure was directly tied to the plaintiff’s performance of her job duties in sales, it met the NJWPL’s definition of “wages.”

The employment attorneys at the Resnick Law Group are committed to fighting for workers’ rights in New Jersey and New York. If you have experienced wage violations or other unlawful employment practices, our team is available to discuss your options. Please contact us online or at 973-781-1204 today to schedule a confidential consultation to see how we can assist you.

The Significance of Richter for New Jersey Employees
The Richter decision clarified two critical points under the New Jersey Law Against Discrimination (LAD). First, the Court held that an employee does not need to show an adverse employment action (like being fired or demoted) to bring a failure to accommodate claim. The New Jersey Supreme Court made it clear that the failure to provide a reasonable accommodation can be an actionable harm. The Court’s opinion powerfully recognizes the harm done to disabled employees who are not accommodated and forced to work in pain or under difficult conditions. It affirmed that the LAD protects workers who are compelled to “soldier on” without the accommodations to which they are legally entitled. This precedent ensures that workers can seek justice without having to wait until they are fired or face other retaliatory measures.

The Court also confirmed that an employee who faces physical injury or further impairment because of an employer’s failure to accommodate their disability can recover damages for those injuries under the LAD. Before this ruling, many employees were limited to the remedies available through only a workers’ compensation claim. The Court affirmed that the exclusivity of the worker’s compensation law does not bar an employee from recovering damages under the LAD. This ruling opened the door to allow an employee to recover for physical injuries, complications or impairments, caused by the employer’s failure to accommodate the employee.

Mr. Gerald Resnick’s Expertise
Mr. Resnick has practiced law since 1979 and has focused on employment and discrimination cases since 1985. He has significant experience in all aspects of employment law including discrimination, harassment, failure to accommodate, employment contracts and severance agreements, wage and hour cases, retaliation and whistleblower claims, and family and medical leave claims.

To help lawyers across the state understand the full impact of the Richter decision on New Jersey Employment Law, Mr. Resnick will be speaking at the Meadowlands Seminar, with the hope that a deeper understanding of the law in this area will lead to further protections for disabled employees.

If your employer has failed to accommodate your disability or you have been the victim of other forms of workplace discrimination, it is important that you speak with an experienced employment attorney. Please contact the attorneys at Resnick Law Group today at (973) 781-1204 to schedule a consultation.

While New Jersey does not yet have any laws that directly address the use of AI in hiring decisions, there is a proposed bill pending that would regulate the use of “automated employment decision tools.” This term refers to software that uses AI models to screen job applicants and identify candidates considered preferable for a position. Although that may seem harmless on its face, there is a problem: AI doesn’t think. Its responses are based on the prompts it is given by the user and are representative of the data on which it is trained, which may reflect historical institutional and systematic inequities. Therefore, if a machine learning application is told to weed out certain applicants based on a protected category, or is trained on biased data, it could result in biased recommendations.

The New Jersey AG and the DCR has launched a Civil Rights and Technology Initiative to review the risks of employment discrimination in AI tools.

A guidance document issued as part of the Initiative gives the example of an enforcement action by the federal Equal Employment Opportunity Commission (EEOC) in 2023 that resulted in a $365,000 settlement. The employer, according to the EEOC, programmed the software it used to screen job applicants in a way that led it to reject female applicants who were at least 55 years old. This resulted in the automatic rejection of over two hundred applicants based solely on age and sex. This is an overt example; algorithmic discrimination can be much more subtle in many cases.

In addition, on the federal level, in October 2024, the DOL issued guidance on how employers’ use of AI in employment decision-making could violate workers’ rights under federal wage and hour laws.

This remains an evolving area of the law, but with the right proofs, employers could be liable to their employees for damages if they violate workplace rights, intentionally or otherwise, by using AI. One of our experienced employment lawyers can evaluate your case and advise you of your rights. To schedule a confidential consultation, please contact us today online or call us at 973-781-1204.

Independent contractors do not have the same legal protections as employees, particularly regarding compensation. An employer who fails to pay minimum wage or overtime to a nonexempt employee may be liable under laws like the federal Fair Labor Standards Act or the New Jersey Wage and Hour Law (WHL). Misclassifying an employee in connection with a violation of the WHL or other state laws can lead to further liability under a 2019 New Jersey law. An employer can face civil lawsuits and administrative penalties. On the other hand, an independent contractor’s only option is to sue for breach of contract.

New Jersey courts use the “ABC test” to determine whether a worker is an employee or an independent contractor. The test gets its name from the definition of “employee” found in the state’s unemployment insurance law, codified at N.J. Rev. Stat. § 43:21-19(i)(6)(A) through (C). State law essentially presumes that a worker is an employee unless the employer can establish that the worker meets specific criteria.

The three criteria of the ABC test are as follows:
A. Control: The employer does not direct or control how the worker performs their job duties. For example, a worker might set their own hours, use their own tools and equipment, and be free to seek work from other clients.
B. Usual Business: The worker’s services are either beyond the scope of the employer’s “usual course of the business,” or they perform their services away from the employer’s places of business.
C. Independent Business: The worker’s services are part of “an independently established trade, occupation, profession or business.”
A worker is presumed to be an employee unless the employer can establish all three of these elements.

The New Jersey Supreme Court has adopted the ABC test in several decisions involving misclassification claims. The NJDOL’s proposed rule would codify the test in the New Jersey Administrative Code (NJAC). This would not give it the same force of law as a bill passed by the state legislature, but it would still carry considerable weight.

The NJAC’s regulations guide agency enforcement actions and influence court decisions. The New Jersey Supreme Court has already made the ABC test part of the state’s legal precedents. Adding it to the NJAC would give it even more legal force. The comment period for the proposed rule ended in early July 2025. As of late July, the NJDOL has not issued any further notices about the rule.

The employment attorneys at the Resnick Law Group represent New Jersey and New York workers in employee misclassification claims and other claims under state and federal law. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to learn how we can help you.

The Legal Framework: Federal and State Protections
Enacted by Congress in 1967, the Age Discrimination in Employment Act (“ADEA”) serves as the primary federal protection for older workers. The statute protects employees and job applicants who are 40 years of age or older. Under the ADEA, employers are prohibited from making decisions about hiring, firing, wages, or other terms of employment based on an individual’s age. In New Jersey, the New Jersey Law Against Discrimination (“NJLAD”) offers even broader protections. Unlike its federal counterpart, the NJLAD does not impose a minimum age requirement of 40 for a discrimination claim. This means it protects workers from discrimination based on their age, whether young or old.

Case in Point: New Jersey Nurse’s $115,000 Settlement
The recent case noted above highlights how these protections function in practice. In 2023, a 63-year-old school nurse claimed age discrimination against her former employer, a New Jersey school district.
The nurse, who had been employed since 2019, received a notice in April 2023 that she was being terminated as part of a reduction in force (RIF). She alleged that the RIF was used as a pretext for age discrimination, as several “substantially younger” nurses with less experience and fewer credentials retained their positions.
When she requested a formal “statement of reasons” for her termination, the superintendent’s response attributed the decision to “painful cuts” resulting from “a loss of state funding” and a “budget shortfall,” explicitly stating it was “not based on job performance.”
The nurse filed suit in September 2023, alleging a violation of the NJLAD and seeking compensatory damages, punitive damages, and attorney’s fees. In late 2024, the parties reached a confidential settlement which became public in early 2025. The school district agreed to pay $115,000 to the plaintiff in exchange for the dismissal of her case.

Protect Your Rights in the Workplace
The Resnick Law Group’s employment lawyers advocate for the rights of employees in New Jersey and New York and have significant expertise settling claims for age discrimination and other unlawful workplace policies or practices. If you are involved in a dispute with your employer, we are available to discuss your options. Contact us today at 973-781-1204 to schedule a confidential consultation and learn how we can assist you.