NJ Attempting to Pass Two New Misclassification Laws to Enforce the Old Definition of Misclassification
A pair of bills in New Jersey are taking aim at rampant employee misclassification in the trucking industry. Via the law firm Ogletree Deakins’ website:
If signed into law, the bills would create a presumption of employer-employee relationship (rather than independent contractor relationship) in the drayage trucking or parcel delivery industry unless the New Jersey Department of Labor and Workforce Development is satisfied that: (1) the operator has control and discretion over the performance of the service, both under his contract of service and in fact; (2) the service is either outside the employer’s usual course of business or outside of all the places of business of the employer; and (3) the operator is customarily engaged in an independently established trade, occupation, profession, or business (the well known “ABC” test under the unemployment compensation law).
So, in other words, New Jersey is trying to pass two pieces of legislation that enforce the already-existing though rarely enforced definition of “employee.”
Is this really the low point we’ve reached? The actual definition of employee and the rights that come with it as stated by law are no longer sufficient, so the state must pursue new laws that say “hey, this old law over here, it’s important. We should enforce this old law. But we’re going to need a pair of new laws just to bring that old law to everyone’s attention.”
Ogletree Deakins explain how the enforcement process would be ramped up by A1578 and S1450:
The bills would allow the imposition of second degree criminal penalties (akin to aggravated assault, sexual assault, manslaughter, and vehicular manslaughter) as well as steep financial penalties on trucking industry employers (including officers, agents, superintendents, foremen, and employees) who misclassify such workers as independent contractors. The bills also would allow individuals to file individual or class civil actions against employers (for damages and attorneys’ fees), and would allow labor organizations to bring class actions. The proposed laws also would prohibit retaliation for exercising rights under the law.
That last part is just priceless: a law prohibiting retaliation for trying to enforce the law. You go, New Jersey!