New Jersey Employment Law Strengthened to Prevent Employers Using Immigration Status to Evade Paying Wages

New Jersey employment law offers strong protections to employees.  Among these are the New Jersey Wage Payment Law and the New Jersey Wage and Hour Law, both of which were amended in 2019 to increase the statute of limitations from two years to six, and increase penalties for violations.  In August 2024, the New Jersey Legislature further strengthened these laws to prevent employers from taking advantage of complaining employees because of their immigration status.

 

New Jersey Wage Protections

New Jersey’s Wage and Hour Law and Wage Payment Law provides the basic protections regarding the payment of wages to New Jersey employees.  (The Federal Fair Labor Standards Act provides similar penalties at the Federal level, but with a shorter limitation period and lesser penalties.)  Failure to pay overtime or minimum wage, or failure to pay wages to employees when due, allows the employee to recover her unpaid wages for the last six years plus liquidated damages, making the entire recover 300 percent of the wrongfully unpaid wages.  Additionally, the employer will be required to pay the employee’s attorneys fees.  (An employer will have a good faith defense available for liquidated damages for a first violation, but not for the unpaid wages themselves or the employee’s attorneys fees.)

 

Reporting of Immigration Status to Defeat Wage Claims

Some employers have employed undocumented immigrants so that they could pay them “off the books” and not have to pay payroll taxes, and not pay overtime or minimum wage, because without proper immigration status the employees could be counted on not to complain to governmental authorities.  Then, if the employees did file a wage and hour complaint with the federal or New Jersey governmental authorities or sue for unpaid wages or overtime, the employer would report the employee’s status to immigration authorities in the hopes that they would either drop the charges, or be detained or deported; either way, they hoped that the problem would go away.

 

Legislature Acts to End Practice

However, the New Jersey Legislature has taken measures to stop this practice.  In 2024 it passed a new employment law making this practice illegal.

The law provides that:

If the Commissioner of Labor and Workforce Development finds that an employer has, for the purpose of concealing any violation of State wage, benefit and tax laws, disclosed or threatened to disclose to a public body an employee’s immigration status, the commissioner is, in addition to imposing any other remedies or penalties authorized by law, authorized to assess and collect an administrative penalty as follows:

(1) for the first violation, an administrative penalty not to exceed $1,000;

(2) for the second violation, an administrative penalty not to exceed $5,000; and

(3) for any subsequent violation, an administrative penalty not to exceed $10,000.

The Commissioner must take into account the “history of previous violations by the employer, the seriousness of the violation, the good faith of the employer and the size of the employer’s business.”

This should deter New Jersey employers from using an employee’s immigration status as a weapon to avoid paying their employee’s wages or required payroll taxes.

 

Other Possible Avenues of Relief

Both the New Jersey Wage and Hour Law and New Jersey Wage Payment Law protect employees who object to illegal pay practices by their employers (as does the Federal Fair Labor Standards Act).  Thus, if an employer reported an employee making a wage claim, the employee could – depending on the circumstances – have a claim for retaliation.

Moreover, if an employee objected to an employer’s violation of New Jersey’s wage and hour laws, she could also have a “whistleblower” suit for violation of the New Jersey Conscientious Employee Protection Act (“CEPA,” New Jersey’s “Whistleblower Law”).  She could also have a common law whistleblower claim under the New Jersey Supreme Court’s case of Pierce v. Ortho Pharmaceuticals.  However, to maintain a whistleblower suit, the objections would have to be about illegal practices which affected more than just the suing employee herself.

Under certain scenarios it might also be possible that such action affected a distinct racially similar group of employees thereby also giving rise to a claim of discrimination, although this would be highly fact sensitive.

 

Contact Us

Our New Jersey employment attorneys represent both employees and employers in all aspects of New Jersey employment law, including wage and hour litigation.  Call us at (973) 890-0004 or fill out the contact form on this page to set up a consultation with one of our employment lawyers.  We can help.