Under New Jersey law, services performed by an individual for compensation shall be considered an employee unless that individual meets the criteria of the ABC test. The ABC test begins with the presumption that a worker is an employee, thereby placing on the employer the burden of proving otherwise. In order to do so — i.e., in order to demonstrate that the worker is actually an independent contractor — the employer must satisfy all three prongs of the ABC test. Specifically, it must show that:
1. The worker “has been and will continue to be free from control or direction over the performance” of the work he or she is responsible for;
2. Such work “is either outside the usual course of business for which [it] is performed, or that [it] is performed outside of all the places of business of the enterprise for which [it] is performed”; and
3. The worker “is customarily engaged in an independently established trade, occupation, profession or business.”
Any employee who believes he or she has been misclassified as an independent contractor may file a complaint with the New Jersey Division of Wage and Hour Compliance within the Department of Labor and Workforce Development. The Division of Wage and Hour Compliance will investigate and make a determination as to whether or not the individual is covered by the Earned Sick Leave Law. Here is the link to file such a complaint: https://www.nj.gov/labor/wagehour/complnt/filing_wage_claim.html.