McOmber McOmber & Luber

Business & Employment Lawyers Red Bank & Marlton New Jersey

(732) 842-6500
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Wage & Hour Attorney

Employees in our state and in our nation are protected by wage and hour laws that govern how many hours a person can work per week and the minimum wage at which they must be compensated. If you believe that your rights as an employee have been violated and you have a wage and hour complaint, please reach out to a wage and hour attorney at the law office of McOmber McOmber & Luber, P.C. today. We serve clients throughout the state of New Jersey, Pennsylvania, and New York from our offices in Red Bank, Marlton and Newark.

Understanding Wage and Hour Laws in New Jersey

Both the federal government and the state of New Jersey maintain wage and hour laws that apply to employees.

On a federal level, the Fair Labor Standards Act (FLSA) establishes the minimum wage, overtime pay, recordkeeping and youth employment standards for Federal, State and local government jobs.

On a state level, the New Jersey State Wage and Hour Law requires that all employers must meet minimum wage requirements and pay the overtime rate for all workers covered under the law–the overtime rate in our state is payment of 1.5 times the normal rate of payment for all hours worked over 40 hours within a seven-day time period.

Other Rights You Have Related to Wages and Hours

In addition to the right to receive the minimum wage and the right to be paid time and a half for any hours worked over 40, as an employee in New Jersey, you may also have the right to:

  • Earned sick leave
  • Family and medical leave
  • Leave for certain protected actions, such as voting
  • To be free from the withholding of wages for illegal deductions

If you are unsure of your rights, please contact an experienced New Jersey wage and hour attorney at our law firm to learn more.

Wage and Hour Class Actions

Employers that do not comply with state and federal laws can be subject to wage and hour class action lawsuits. These lawsuits involve a group of employees (called classes) whose rights have been violated, and team up to pursue a class action claim. Wage and hour class actions have benefits over individual lawsuits. For example, it is more efficient to file one claim instead of hundreds or thousands, and it is a good way to ensure that employers follow the rules regarding wage & hour laws.

If you think you have a potential wage and hour class action case, reach out to a wage and hour attorney at our law firm to request a free consultation. We can provide you with advice and guidance for recovering compensation for any harm and damages you and your potential class have suffered.

NJ Wage and Hour Laws Regarding Tips, Commission, and Overtime

All workers are guaranteed a minimum wage by federal, state, and sometimes local laws, and employers must pay by whichever standard is the most generous to the employee. In New Jersey, the state minimum wage is higher than the federal minimum wage so workers receive the state minimum wage. Hourly workers must be paid the minimum wage for all hours worked, not an average, and not more than minimum wage for some hours and less for the others. There are special rules regarding tips, commission, and overtime as they relate to hourly wage.

Tips

Tips belong to the employee and not the employer. There are two exceptions to this rule. One is the tip credit. In New Jersey, employers may count part, or all of an employee’s tips toward the minimum wage requirement. This means the employer may pay less than the minimum hourly wage if the employee’s tips make up the difference. At the end of the workweek, if the tips are not enough to equal minimum wage for each hour worked, then the employer is responsible for paying the difference.

The other exception is the tip pool. With written notification, employers may require employees who regularly receive tips to contribute a portion of the tips to a pool. The pooled tips are then divided evenly among the group of employees.

Commissions

For employees working on a commission system, the minimum wage requirement must still be met. In other words, total pay divided by the number of hours worked must average out to minimum wage. Commissions are considered wages and not supplementary incentives or discretionary bonuses. The commission structure may not be changed without prior written notice to the employee.

Overtime

Overtime for all hourly workers is one and a half times their hourly wage regardless of tips. Any hours worked over the standard 40-hour work week should be paid at the overtime scale. Some employers may try to avoid their overtime obligations by handing out “bonuses.” It sounds great, but the legal definition of a bonus is compensation paid out above wages owed, in return for loyal service or extra effort shown, or as a gift. Always carefully calculate whether your wages have been correctly paid.

New Jersey Earned Sick Leave

Under the New Jersey Earned Sick Leave Law that took effect October 2018, nearly all employees working in the state are entitled to paid sick leave through their employers. This law applies to both full-time and part-time workers, regardless of whether they are paid hourly wages, salary, or via tips or commissions.

Employees accrue one hour of sick leave for every 30 hours of work. They may accrue up to 40 hours of sick time within the benefit year, which is 12 consecutive months of work as designated by their employer. If the worker has not used the sick leave time accrued by the end of the benefit year, the employee may carry over up to 40 hours to the next 12-month period or calendar year or receive a payout for the unused time at the discretion of the employer.

Employers cannot refuse to offer paid sick leave to eligible employees. They are further prohibited from disciplining workers for asking about or using their earned sick leave. Those who believe their employers are in violation of the law, or those who have suffered harm for exercising their rights should contact a skilled New Jersey wage and hour lawyer to discuss their legal options.

What Are The Most Common Wage and Hour Law Violations?

Some of the most common wage and hour law violations taken by employers include, but are not limited to:

  • Tip Skimming – Tip skimming refers to the unlawful practice of restaurant owners or managers taking a portion of tips that belong to the restaurant’s employees
  • Withheld Wages or Failure to Pay Minimum Wage – Employers will sometimes find ways to withhold wages that you have rightfully earned, or find ways to pay you less than minimum wage, both of which are against the law.
  • Illegal Deductions – charges for uniforms, portraits, business expenses, among others, are all examples of illegal deductions on an employee’s paycheck.
  • Misclassified Employees – Some employers will intentionally misclassify an employee as an independent contractor as a means to deprive them of the benefits associated with proper employment (such as being misclassified as “exempt” from earning overtime.)

The above are just a handful of some of the most common forms of wage and hour law violations taken by employers, and not a comprehensive list. If you believe you have been subjected to one of the violations listed above, or one that isn’t, discuss your situation with an experienced wage and hour attorney.

What to Do if You Have a Wage and Hour Claim in NJ

If you are thinking about bringing forth a wage and hour claim, or joining a wage and hour class action lawsuit, we strongly recommend consulting with an skilled attorney who has experience representing employees like you in wage and hour disputes. We can help you to gather evidence to support your claim, and pursue a wage collection proceeding, if necessary.

Whistleblower Protection for Wage and Hour Issues Under CEPA

Any New Jersey employee who feels his/her paycheck does not accurately reflect the work they are doing has the right to question their employer’s practices without fear of retaliation. The Conscientious Employee Protection Act (CEPA) provides general whistleblower protection to the employee who brings to light illegal, fraudulent, or criminal behavior of his/her employer.

Under this law, the employer may not retaliate against an employee for threatening to disclose or complain to a public body that they are owed unpaid wages or commissions. If there is any adverse employment action against that employee, the employer may be liable for any damages and legal fees incurred by the employee. The employee has the responsibility to first inform the employer in writing of the disclosure/complaint and give them time to correct it.

CEPA provides protection to those who have a reasonable belief or suspicion their employer is violating the law by withholding wages or commissions. Even if it cannot be proven or turns out not to be true, an employer may not engage in retaliatory actions against the employee.

Schedule a Consultation With Our Wage and Hour Attorneys Now

Being denied the wages that you are owed, being asked to work overtime without compensation, or being denied time off that you are legally entitled to is more than frustrating — it is illegal. If you believe that your employer has violated your rights under state or federal wage and hour laws, we urge you to reach out to us. We have years of experience representing employees and will fight for your wages. Reach us today by phone or online for a free consultation.

Wage & Hour Attorney FAQs

  • What Are the Federal Guidelines for Overtime Hours and Pay?

    According to the FLSA, employers are not limited in the number of hours they may require employees to work. However, it does require employers to pay employees time and a half for any hours of overtime worked in a week. Another common misconception is that employees who work over eight hours in a day must receive overtime compensation. This is not so; the FLSA only requires that employees be paid overtime for any hours worked in excess of 40 in a week.

  • What Are the White Collar Overtime Exemptions from the Fair Labor Standards Act?

    There are three types of white collar FLSA exemptions: executive, administrative, or professional.

    A worker in one of these categories must satisfy both salary and duty requirements to be exempt from the FLSA overtime rules. Titles, such as manager, or salary do not make an employee automatically exempt. The employee must be paid on a salary basis at a minimum of $455 per week. Any employee paid on an hourly basis or commission only system does not satisfy the salary requirement for white collar exemptions.

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  • What Are the Federal Guidelines for Rest Breaks?

    If New Jersey employers choose to give employees rest or meal periods, they must follow federal law. Federal law states that short breaks, usually between five and 20 minutes, are common and promote employee efficiency. Such short breaks are considered compensable work time that should be included in the total number of hours worked during the week. However, these breaks must actually be taken and may not be offset against other working time. They may also not be extended beyond the amount of time prescribed by the employer.

  • What Is a Tip?

    A tip is any money a customer voluntarily pays beyond the amount charged for products or services plus tax. Some employers, such as restaurants, add a mandatory service charge to bills for large parties or catered events. This designated service charge allows employers to keep the extra amount paid even if the customer thinks that by paying it, he or she is leaving a tip for an employee.

  • Can My Employer Force Me To Volunteer?

    No. An employer cannot require you to volunteer and work unpaid hours unless it falls under your job description. If the volunteering is presented with the threat of adverse employment action if you do not comply, then you may have a claim for unpaid wages.

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  • What Is the Criteria for an Unpaid Internship?

    1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
    2. The internship experience is intended to benefit the intern;
    3. The intern does not displace regular employees and works under close supervision of existing staff;
    4. The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;
    5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
    6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

  • Can New Jersey Employers Take Tip Credits?

    New Jersey allows employers to take tip credits, therefore employers may pay less than minimum wage as long as employees’ tips make up the difference. If the employer’s pay and the employee’s tips together do not equal minimum wage, the employer must pay the employee the amount necessary to equal at least minimum wage for each hour worked.

  • Is Tip Pooling Allowed in New Jersey?

    New Jersey employers may participate in tip pooling, an arrangement in which employees split a portion of their tips with other employees. The federal Department of Labor only allows employees who regularly receive tips to take part in the pool. Employees must receive notice of the pool; cannot be required to contribute more than is customary and reasonable; must be able to keep at least minimum wage; and are not required to share tips with their employers or with employees who do not typically receive their own tips.

  • What Wage and Hour Restrictions Are Outlined in the NJ State Wage and Hour Law?

    New Jersey employers are required to pay at least minimum wage for hours worked up to 40 and then must pay at least time and a half for any hours worked over 40 in a week. Generally, the NJSWHL does not limit the number of hours an employee may be required to work and New Jersey employers may fire employees who do not comply with forced overtime.

  • What Is the New Jersey Mandatory Overtime Restrictions for Health Care Facilities (MORHCF)?

    The MORHCF dictates that health care facilities may not terminate hourly workers who are involved in patient care and clinical services if they refuse to work overtime unless there is an unforeseeable emergent circumstance or a national, state or, municipal emergency.

    It states that the emergent circumstance exception should be used as a last resort and not simply because of chronic short staffing. Therefore, employers must exhaust reasonable efforts to fill vacancies before resorting to requiring employees to work hours in excess of a predetermined and regularly scheduled 40-hour workweek.

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This website’s information does not, and is not intended to, constitute legal advice or form an attorney-client relationship. All content is for general information and may not constitute the most up-to-date legal information. You should consult with an attorney for advice on specific legal problems. Read the full Disclaimer here.

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