In an effort for Tobolsky Law to keep our clients and friends abreast of legislative issues which may affect their enterprises, we are providing a legislative alert below:
The New Jersey Legislature passed today and sent to the Governor's desk the Truck Operator Independent Contractor Act, Bill S1450.
If you use a truck driver for your business and that driver does not have a well-established independent business with a well-established independent clientele, you run the risk of criminal penalties, up to a second-degree felony, if you retain him or her as an independent contractor rather than a W-2 employee. Such is the power of the State Department of Labor.
- Persons who drive trucks for hire are strongly presumed to be employees rather than independent contractors. The factors necessary to establish and overcome this presumption are, according to the Statement:
1. The individual has been and will continue to be free from
control or direction over the performance of that service, both under
his contract of service and in fact;
2. The service is either outside the usual course of the business
for which the service is performed, or the service is performed outside of all the places of business of the employer for which the service is performed; and
3. The individual is customarily engaged in an independently
established trade, occupation, profession or business.
Any employer who mis-classifies an operator as an independent employee is subject to criminal penalties ranging from disorderly persons offense to a second-degree felony (presumption of incarceration in state prison, 5 to 10 years) are established.
This Bill may impact prevailing wage determinations.
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