1.      The “Construction Industry” Exemption

Under the ESLL, employees performing services in the construction industry under a collective bargaining agreement are exempt from the law’s requirements. County Concrete argued that its employees fell under this exemption. The court, however, looked to the plain language of the statute and North American Industry Classification System (NAICS) codes to determine the reality of the business. Because the company supplied materials like redi-mix concrete but did not engage in the business of constructing houses, schools, or other structures, the court firmly classified the employer as a “material supplier” and manufacturer, meaning the construction exemption did not apply.

2.     Compliance of Existing PTO Policies

In New Jersey, employers can technically use their existing paid time off (PTO) or vacation policies to satisfy ESLL obligations—but only if those policies meet all of the statute’s strict accrual and usage requirements. County Concrete argued its “vacation” policy was a compliant PTO policy. The court disagreed, heavily weighing several restrictive factors in the employer’s policy:

• Limited Categories of Leave: The employer’s policy only permitted paid leave for vacation, bereavement, and holidays. It failed to provide leave for ESLL-mandated reasons, such as caring for a sick family member, addressing domestic violence circumstances, or attending a child’s school-related event.
• Doctor’s Notes: The company unlawfully required a doctor’s note for illness-related absences of less than three days.
• Management Discretion: Employee requests for leave were subject to the sole discretion of management, and vacation requests required a minimum of one week’s advance notice. Because the policy was far more restrictive than the ESLL allows, the court found it was not a valid substitute for statutory earned sick leave.

3.    The High Cost of Poor Recordkeeping and Inadequate Notices

The ESLL imposes strict notice and recordkeeping obligations on employers, and the Cano decision highlights the severe consequences of ignoring them. Employers are required to post statutory notices of ESLL rights conspicuously and provide individualized written notices to employees in English and other languages, such as Spanish. County Concrete failed on all fronts; the evidence showed the company only posted a notice in an obscure, inaccessible location at just one of its three worksites, and completely failed to provide the required individualized written notices in English or Spanish.

Furthermore, the employer failed to maintain proper records documenting the hours its employees worked and the sick leave they used. Under the ESLL, if an employer fails to retain adequate records, the law creates a presumption that the employer failed to provide the required earned sick leave. To overcome this, the employer must rebut the presumption with “clear and convincing evidence,” which County Concrete failed to do.

4.     Standing for “Similarly Situated” Employees

Perhaps most significantly for employment litigation, the employer argued that the unnamed plaintiffs (103 other employees) lacked standing to recover damages because the plaintiffs never formally certified a class action prior to trial. The Appellate Division rejected this argument, noting that the ESLL’s statutory language specifically permits an employee to maintain an action “for and on behalf of himself or other employees similarly situated.” The court determined that the legislature did not intend to require formal class certification procedures for ESLL claims, allowing the unnamed employees to recover damages without being certified as a class.

Accordingly, the court upheld the judgments against County Concrete, affirming the award of damages—including 200 percent in liquidated damages—to the named plaintiffs and the 103 similarly situated employees.

In wage and hour or sick leave cases, an employer’s policies may not be as compliant as they claim. Courts look at the realities of the policy’s restrictions and the specific statutory definitions, not just the labels an employer uses. If you have been denied your rightful earned sick leave or have faced retaliation for requesting protected time off, you need a professional evaluation. Contact the Resnick Law Group today at (973) 781-1204 to provide your preliminary information and schedule a consultation with one of our experienced employment attorneys.

The plaintiff, Nisha Sanger, was an experienced recruiter who performed services for Cognizant Technology Solutions through an agency agreement with Next Level Business Services (NLB). Her complaint alleged disturbing conduct: inappropriate physical touching by a supervisor and a subsequent “proposition” to engage in sexual relations with a high-level executive to secure her position. When she refused, she was terminated shortly thereafter. However, the court never reached the merits of these harassment and retaliation claims. Instead, the case turned on a single threshold question: Was Ms. Sanger an employee or an independent contractor?
In New Jersey, the legal test for employment status depends entirely on the statute being enforced. Unfortunately, the employee-friendly ABC Test used for wage and hour or unemployment claims does not apply to discrimination lawsuits. The New Jersey Supreme Court has explicitly held that while the ABC Test applies to the Wage Payment Law, the twelve-factor Pukowsky test remains the correct standard for cases brought under the LAD. The twelve factors under Pukowsky are:

1. The employer’s right to control the means and manner of the worker’s performance: This is often considered the most important factor. It weighs toward “Employee” if the company tells you exactly how to do the work, whereas it weighs toward “Contractor” if they only care about the final result.

2. The kind of occupation—supervised or unsupervised: If you are subject to day-to-day oversight, progress meetings, and manager approval for small tasks, it suggests an employee relationship. In this case, the court found the plaintiff had significant control over how she screened candidates, which favored contractor status.

3. The level of skill: Highly specialized professionals with years of experience who do not require training are more likely to be viewed as contractors.

4. Who furnishes the equipment and workplace: Providing your own tools and working from home favors contractor status. Conversely, being required to work at a specific desk using a company-provided laptop and email account typically suggests you are an employee.

5. The length of time in which the individual has worked: A long-term, indefinite relationship suggests employment. A relationship with a “finite” or “limited duration”—such as the 12-month contract in this case—is more consistent with a contractor.

6. The method of payment: Receiving a W-2 with taxes withheld is the hallmark of an employee. Being paid through a business entity (like an LLC) on a 1099 basis without withholdings strongly suggests a contractor relationship.

7. The manner of termination of the work relationship: If the company can fire you at will for any reason, it may look like employment. If the relationship is governed by specific contract termination clauses (like a two-week notice requirement), it suggests a commercial contractor agreement.

8. Whether there is annual leave: Paid time off (vacation or sick days) is a benefit reserved for employees. Not getting paid for days you don’t work is a strong indicator of a contractor.

9. Whether the work is an integral part of the business of the “employer”: This looks at whether you are a “cog” in the company’s daily engine. If the work is “incidental” or “ancillary” to the company’s primary mission—like a recruiter for an IT company—the court may view you as a contractor.

10. Whether the worker accrues retirement benefits: Participation in a 401(k), pension, or stock option plan is evidence of an employee relationship.

11. Whether the “employer” pays Social Security taxes: An employer is legally required to pay half of an employee’s FICA taxes. If you are responsible for your own self-employment taxes, you are likely a contractor.

12. The intention of the parties: This looks at what both sides believed they were creating. If the contract explicitly says “Independent Contractor” and you acknowledge that status in your testimony, it is very difficult to argue otherwise later.

These factors are weighed qualitatively rather than quantitatively, meaning the court looks at the overwhelming balance of the factors rather than just counting which side has more in their favor. While the first factor—employer control—is traditionally considered the most important, the weight assigned to each depends on the specific circumstances of the case. For example, in Ms. Sanger’s case, the court found the following facts highly persuasive and accorded them heavy weight:

1. The Intention of the Parties: Ms. Sanger signed agreements explicitly designating her as an independent contractor.
2. Method of Payment: Payment was made to Ms. Sanger’s business entity rather than to her individually, and no taxes were withheld.
3. Control: While Ms. Sanger did use Cognizant’s equipment, the court found she maintained significant control over her recruiting duties and was not subject to day-to-day supervision regarding how candidates were sourced or screened.

Accordingly, Ms. Sanger was held to be an independent contractor and not subject to the protections of the LAD.

In discrimination cases, employment status may not be black and white. Courts look at the realities of your work, not just the title on your contract. If you have been subjected to harassment or discrimination but are unsure if your “contractor” status prevents you from seeking justice, you need a professional evaluation. Contact the Resnick Law Group today at (201) 781-1204 to provide your preliminary information and schedule a consultation with one of our experienced employment attorneys.

New Jersey law currently sets the minimum wage at $15.49 per hour for most employers. This is the minimum rate that must pay to non-exempt workers. Both New Jersey and federal law require time-and-a-half for hours worked over forty in a week; thus, if a non-exempt worker makes $18 per hour and works fifty hours in a week, the employer must pay them $27 per hour for the last ten of those hours worked.

Failure to pay minimum wage and overtime, also known as “wage theft,” may cost workers across the country as much as $50 billion each year. This amount exceeds all other forms of theft, such as burglaries and robberies, combined. Private lawsuits and government regulators only recover a fraction of the amount lost to wage theft.

The public also loses because of wage theft. Worker misclassification alone may cost New Jersey taxpayers around $300 million per year in lost contributions to unemployment insurance, Social Security, Medicare, and income taxes.

The LWD’s lawsuit attempts to avoid a common problem with wage claims in the construction industry. A construction site can be a chaotic place. The general contractor is in charge of the entire site, but they may delegate various responsibilities to subcontractors, so one company’s employees might perform work under the direction of a different company for at least part of their working hours. Thus, if a dispute arises, each company might (and usually does) argue that another company is liable instead: a general contractor might try to shift responsibility for alleged wage violations onto a subcontractor, while subcontractors may claim that wages fall under the general contractor’s purview. The LWD sued all major companies involved in the project, ensuring that anyone who might be responsible would be present in the case.

The lawsuit asserts six causes of action against all defendants:
– Failure to pay overtime
– Failure to timely pay wages
– Failure to maintain and produce hour and wage records
– Failure to maintain and produce earned sick leave records
– Failure to provide earned sick leave
– Failure to contribute to funds for unemployment, disability, and workforce development

It asserts another three causes of action against certain defendants, including general contractors and subcontractors:
– Failure to pay minimum wage
– Misclassification of employees in the construction industry
– Misclassification of employees generally

The lawsuit also alleges a child labor violation against one subcontractor.

Employees in New Jersey and New York can claim compensation if their employers have violated certain legal rights, including failure to pay minimum wage or overtime. The employment attorneys at the Resnick Law Group are available to help you understand your rights. Please contact us at 973-781-1204 or online today to schedule a confidential consultation to discuss your case.

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.