In the wake of the New Jersey Department of Labor and Workforce Development implementing the most stringent interpretation of the ABC test determining freelance workers and employees this week, NJBIA President and CEO Michele Siekerka urged this advice to businesses in the state:
Check with your attorney.
Speaking with Bill Spadea on NJ101.5 on Thursday morning, Siekerka said a business’ typical utilization of freelance workers may very well not be allowed under the newly codified rules, particularly under the most challenging Prong B of the test, which now states work must be performed either outside the usual course of the company's business or outside of its places of business.
“The burden is on the employer,” Siekerka said. “And the burden right now is scaring the job creators right down the line.
“Lawyers are going to be getting calls all day today (asking) am I OK? I was OK for 20 years in this independent contractor relationship. Am I still OK today?”
Gov. Mikie Sherrill declined to delay the implementation of the rules, despite calls from the business community, freelancers and legislators from both sides of the aisle.
Siekerka said as a result of it “an already tepid business community will now be reluctant to engage legitimate independent contractors as they traditionally have, while many will not have the financial ability to bring those same workers on as employees.
“We remain extremely concerned about Prong B of the ABC test, which requires a business to demonstrate that an independent contractor’s work is performed ‘outside the usual course’ of the business or outside of its places of business.
“This one provision, which the Sherrill administration adopted and declined to change during the 120-day stay of the implementation, represents an incredibly onerous threshold for many legitimate independent contractor-business relationships to overcome,” Siekerka said.
