Top 5 Wage and Hour and Pay Equity Issues That All New Jersey Employers and CPAs Should Know

by Kathleen McLeod Caminiti, Esq., and Sarah Wieselthier, Esq., Fisher Phillips LLP | October 10, 2023

Compliance with New Jersey’s wage and hour and pay equity laws can be challenging. Over the last few years, the laws have become more robust and noncompliance more costly. Given that employers often rely upon their CPAs for guidance on compensation issues, it’s important to stay up to date on the key areas where employers often experience compliance challenges.

1. Minimum Wage Continues to Rise

For the last several years, New Jersey’s minimum wage has increased annually on Jan. 1 to reach a minimum wage of $15 per hour for most non-exempt employees. Looking ahead to 2024, minimum wage for most employees will increase to $15.13 (or higher).

2. Ensure Exempt Employees Are Properly Classified

There is a common misconception that so long as an employee is paid on a salary basis, they are exempt from overtime. For an individual to be properly classified as exempt, they must: (1) earn a salary of at least $684 per week; and (2) perform certain job duties and responsibilities that fall within one of the recognized exemption tests (e.g., administrative, executive, professional). The U.S. Department of Labor (DOL) has proposed a rule that would increase the salary threshold to $1,059 per week, among other changes. Unless the employer can prove the exemption criteria are satisfied, the employee should be classified as non-exempt and paid overtime for all hours worked in excess of 40 hours in a workweek.

3. Proper Calculation of Overtime

Overtime is calculated as one and a half times the “regular rate” of pay. But calculating the regular rate can be complicated because additional remuneration that an employee receives, such as commissions, shift differentials and non-discretionary bonuses, need to be included in the calculation. These issues are complex and must be examined closely.

4. Consider Whether Contractors Are Actually Employees

Many companies routinely engage independent contractors to perform various services. However, these 1099 workers may be misclassified. Typically, misclassification issues arise when an independent contractor files for unemployment. New Jersey follows the ABC test, under which there is a presumption of employee status unless all of the following factors are established:

  1. The worker has been and will continue to be free from control or direction over the performance of the service;
  2. The work is either outside the usual course of business for the company requesting the work, or the work is performed outside of the company’s place of business; and
  3. The worker is customarily engaged in an independently established trade, occupation, profession or business.

If this test can’t be satisfied, the individual should be classified as an employee and subject to typical withholding taxes, benefits, etc.

5. Stay Up to Date on Equal Pay Disclosure Laws

New Jersey requires equal pay for equal work, and pay disparities are fodder for high-stakes, expensive litigation. Many states and municipalities have recently enacted laws requiring that employers include information regarding the salary range for a position on a job posting. New Jersey does not currently have a state-wide salary range disclosure requirement, but it is likely that legislation will be enacted. Already, Jersey City has an ordinance requiring employers to post a minimum and maximum salary or hourly wages on any job postings. There are also certain reporting requirements for public contractors.

Failure to properly pay wages may result in significant exposure to damages, penalties and fines. A successful plaintiff can recover triple the amount of unpaid wages owed, plus attorney’s fees and costs. The best way to avoid exposure for wage and hour and equal pay claims is to conduct periodic audits of pay practices to determine whether there are any issues that need to be rectified. Employment policies and practices should be reviewed and updated regularly, especially given the frequent updates to these significant laws.

Kathleen M. Caminiti

Kathleen M. Caminiti

Kathleen McLeod Caminiti, Esq., is a partner and co-chair of the Wage and Hour and Pay Equity practice groups at Fisher Phillips LLP.

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Sarah  Wieselthier

Sarah Wieselthier

Sarah Wieselthier, Esq., is of counsel at Fisher Phillips LLP.

More content by Sarah Wieselthier:

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