Brian Bergen
5 East Main St., Suite 22B
Denville, NJ 07834
Author Detail Link


Bill Text


Employee Misclassification






[wpcode id=”3772″]

Revises factors for determining employment or independent contractor status under certain State labor laws.



Revises the factors that are used to determine whether a worker is an employee or an independent contractor under certain State labor laws.

The ABC test is widely used under current State labor law for determining whether a worker is an employee or an independent contractor. It is used to determine employee and employer obligations and entitlements under the following laws: the unemployment compensation law, the Temporary Disability Benefits Law, the New Jersey wage payment law, and the New Jersey State Wage and Hour Law. It is also used under the New Jersey Gross Income Tax Act, for purposes of determining whether an employer is required to deduct and withhold State income taxes. The ABC test provides that an individual who performs services for remuneration is presumed to be an employee unless the employer can show to the satisfaction of the Department of Labor and Workforce Development that:
(A) Such 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; and (B) such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and (C) Such individual is customarily engaged in an independently established trade, occupation, profession or business. If an employer fails to prove any one of the three criteria for showing a worker is an independent contractor, the worker will be classified as an employee, and will be eligible for benefits pursuant to the labor laws listed above. Additionally, the employer and employee will be required to comply with the contribution and participation obligations of the respective labor laws.

Revises the factors for showing a worker is an independent contract. Under the bill, to determine whether an individual is an employee or an independent contractor, all information that provides evidence of the degree of control and the degree of independence is to be considered. Facts that provide evidence of the degree of control and independence fall into three categories:
(A) behavioral control; (B) financial control; and
(C) the type of relationship of the parties.

In making an employment determination any guidance on determining a workers employment status provided by the federal Internal Revenue Service in the United States Department of the Treasury is to be considered. This bill aligns the test for employment status under State law with the test in use by the Internal Revenue Service in the Department of the Treasury.



Carries-over to 2023. Pending Committee action. Same as SB 599.


01/11/2022 Introduced. Referred to Assembly Committee on Commerce and Economic Development.