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For employees who earn commissions, a recent decision by the New Jersey Supreme Court has provided crucial clarity and protection. In the case of Musker v. Suuchi, Inc., the state’s highest court unequivocally held that commissions earned for labor or services rendered are indeed “wages” under the New Jersey Wage Payment Law (“WPL”). This ruling overturns a prior Appellate Division decision and reinforces the broad protections afforded to employees under the WPL.

The Backstory: Commissions on PPE Sales Sparks Legal Battle
The case arose when Rosalyn Musker, a sales employee of Suuchi, Inc., sought commissions for her sales of personal protective equipment (PPE) during the COVID-19 pandemic. After Musker successfully generated significant revenue through these sales, a dispute arose regarding the amount of commission she was owed and whether these commissions qualified as “wages” under the WPL.

The trial court initially sided with the employer, arguing that the PPE commissions were “supplementary incentives” designed to motivate Musker beyond her regular duties and were therefore excluded from the WPL’s definition of wages. The Appellate Division affirmed this decision.
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New Jersey Employees have a vast array of rights thanks to the state’s expansive employment laws. The New Jersey State Wage and Hour Law (WHL), for example, requires employers to pay a minimum wage and overtime to non-exempt employees. Independent contractors are not entitled to these types of protections, and thus employers sometimes try to falsely classify workers as such. New Jersey takes employee misclassification very seriously and grants employees the right to bring civil lawsuits to recover unpaid wages and other damages. In addition, the Department of Labor and Workforce Development (LWD) frequently pursues administrative enforcement actions. Employers in the construction industry could even face criminal penalties for misclassifying employees as independent contractors.

The WHL and other laws allow employees to sue for misclassification. New Jersey has two statutes that impose administrative penalties and other consequences on employers that misclassify workers:

  1. A law passed by the state legislature in 2019 that establishes administrative penalties for most employers in the state; and
  2. The Construction Industry Independent Contractor Act (CIICA), passed in 2007, which imposes criminal penalties on supervisors, managers, or other individuals who misclassify construction workers. The severity of the penalties depends on the circumstances.

The 2019 misclassification law does not define the terms “employee” or “independent contractor.” New Jersey courts have adopted the “ABC test” to determine whether a worker should be classified as an independent contractor or employee. This test is favorable to employees and requires the employer to meet strict criteria in order to classify a worker as an independent contractor. The LWD has proposed adopting the ABC test in all its misclassification cases. The CIICA already includes the ABC test in its definition of “employee.”
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Laws that protect workers from employment practices like discrimination or wage violations are not very helpful if people fear losing their jobs or facing other consequences for coming forward. For this reason, federal and New Jersey employment laws prohibit retaliation for various protected actions, including opposing suspected unlawful policies or practices and cooperating with government regulators. Employers who retaliate against employees for engaging in protected activities may be liable for damages. The New Jersey Attorney General’s Division on Civil Rights (DCR) recently issued a Finding of Probable Cause in a case alleging numerous violations of the New Jersey Law Against Discrimination (NJLAD). This is a relatively early stage in the administrative process and is not the same as a verdict finding an employer liable for violating the NJLAD, but if an employer cannot reach a settlement with the DCR after a Finding of Probable Cause, an administrative prosecution may follow.

Section 11(d) of the NJLAD, found at N.J. Rev. Stat. § 10:5-12(d), makes it an “unlawful employment practice” for an employer to “take reprisals against any person” because of certain actions. These actions include:
– Filing a legal complaint alleging NJLAD violations;
– Providing testimony or other assistance in a legal proceeding brought under the NJLAD;
– Seeking legal advice about rights under the NJLAD; and
– Stating one’s opposition to acts that one believes violate the NJLAD.

The NJLAD’s anti-discrimination provisions cover much more than employment discrimination. They also cover discrimination in housing, mortgage lending, consumer credit, banking, and public accommodations. The statute’s anti-retaliation provisions apply broadly to people who oppose any type of discrimination it addresses. In 2010, the New Jersey Supreme Court affirmed a broad view of the NJLAD’s protections against retaliation. It stated in its ruling that the NJLAD’s purpose is both “to fight discrimination wherever it is found…[and] to protect those who assist in rooting it out.”
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Employees are entitled to pay for the work they perform for their employers. An employer that fails to pay an employee what they have earned could face significant penalties under New Jersey employment law. The New Jersey Wage Payment Law (NJWPL) imposes civil penalties on employers for violating its provisions. Employees may also bring civil lawsuits under the NJWPL to recover the amount of pay their employers owe them, plus additional liquidated damages. The wage law defines “wages” to include numerous forms of payment. The New Jersey Supreme Court recently ruled in favor of an employee in a claim under the NJWPL. The dispute involved whether commissions based on performance count as “wages” when an employee also receives a base salary. The court’s ruling provides an employee-friendly definition of “wages.”

The NJWPL defines “wages” as money paid to an employee for their “labor or services…on a time, task, piece, or commission basis.” It excludes “supplementary incentives and bonuses” that are not part of an employee’s “regular wages.”

Employers must pay wages at least twice a month for most employees. Each payment must be for the full amount the employee has earned up to that point, with exceptions for certain withholdings like payroll taxes, health insurance premiums, and retirement plan contributions. An employee can file suit to recover unpaid wages. The NJWPL allows them to claim 200 percent of the amount owed as liquidated damages, plus attorney’s fees and court costs.
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The Resnick Law Group’s founding partner, Gerald Jay Resnick, argued the pivotal case of Richter v. Oakland Board of Education before the New Jersey Supreme Court in September 2020. This landmark decision unanimously expanded the rights of employees who are disabled and face denial of a workplace accommodation . On November 20, 2025, Mr. Resnick will be giving a featured presentation at the upcoming New Jersey Association for Justice Meadowlands Seminar® 2025, where he will discuss the far-reaching impact of the decision effecting employees and employers across the state.

The Significance of Richter for New Jersey Employees
The Richter decision clarified two critical points under the New Jersey Law Against Discrimination (LAD). First, the Court held that an employee does not need to show an adverse employment action (like being fired or demoted) to bring a failure to accommodate claim. The New Jersey Supreme Court made it clear that the failure to provide a reasonable accommodation can be an actionable harm. The Court’s opinion powerfully recognizes the harm done to disabled employees who are not accommodated and forced to work in pain or under difficult conditions. It affirmed that the LAD protects workers who are compelled to “soldier on” without the accommodations to which they are legally entitled. This precedent ensures that workers can seek justice without having to wait until they are fired or face other retaliatory measures.
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Employers’ use of artificial intelligence (AI) in hiring and other employment matters has raised concerns about how the technology may perpetuate discrimination in their processes. New Jersey and federal employment laws prohibit employment discrimination based on factors such as race, sex, disability, and age, among others. Recently, New Jersey has determined that these legal protections may make employers liable for discrimination resulting from AI technology. The New Jersey Attorney General (AG) and the Division of Civil Rights (DCR) issued guidance in January 2025 regarding “algorithmic discrimination” by employers using AI tools to aid in employment decisions.

While New Jersey does not yet have any laws that directly address the use of AI in hiring decisions, there is a proposed bill pending that would regulate the use of “automated employment decision tools.” This term refers to software that uses AI models to screen job applicants and identify candidates considered preferable for a position. Although that may seem harmless on its face, there is a problem: AI doesn’t think. Its responses are based on the prompts it is given by the user and are representative of the data on which it is trained, which may reflect historical institutional and systematic inequities. Therefore, if a machine learning application is told to weed out certain applicants based on a protected category, or is trained on biased data, it could result in biased recommendations.

The New Jersey AG and the DCR has launched a Civil Rights and Technology Initiative to review the risks of employment discrimination in AI tools.

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The difference between an “employee” and an “independent contractor” is critically important when it comes to workplace rights. Employers have a wide range of obligations to employees under federal and New Jersey employment laws. An independent contractor’s rights, on the other hand, usually depend on the terms of their contract with the employer. Some employers may try to classify workers as independent contractors to avoid legal obligations like minimum wage or overtime compensation. This practice, known as employee misclassification, violates both state and federal law. New Jersey has a very employee-friendly rule for determining who is an employee and who is an independent contractor. The New Jersey Department of Labor and Workforce Development (NJDOL) issued a proposed rule in April 2025 that would codify several New Jersey Supreme Court rulings that favored employees.

Independent contractors do not have the same legal protections as employees, particularly regarding compensation. An employer who fails to pay minimum wage or overtime to a nonexempt employee may be liable under laws like the federal Fair Labor Standards Act or the New Jersey Wage and Hour Law (WHL). Misclassifying an employee in connection with a violation of the WHL or other state laws can lead to further liability under a 2019 New Jersey law. An employer can face civil lawsuits and administrative penalties. On the other hand, an independent contractor’s only option is to sue for breach of contract.

New Jersey courts use the “ABC test” to determine whether a worker is an employee or an independent contractor. The test gets its name from the definition of “employee” found in the state’s unemployment insurance law, codified at N.J. Rev. Stat. § 43:21-19(i)(6)(A) through (C). State law essentially presumes that a worker is an employee unless the employer can establish that the worker meets specific criteria.
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Understanding Your Rights: Age Discrimination in the New Jersey Workplace
Age discrimination remains a significant hurdle for many older professionals. According to a series of surveys conducted by the AARP in 2022, a staggering 21% of workers aged 50 and older reported experiencing age-based discrimination since turning 40. For employees in New Jersey, both federal and state laws provide robust protections against such treatment. A recent lawsuit, which resulted in a $115,000 settlement for a New Jersey nurse, underscores how these laws can be used to protect workers’ rights.

The Legal Framework: Federal and State Protections
Enacted by Congress in 1967, the Age Discrimination in Employment Act (“ADEA”) serves as the primary federal protection for older workers. The statute protects employees and job applicants who are 40 years of age or older. Under the ADEA, employers are prohibited from making decisions about hiring, firing, wages, or other terms of employment based on an individual’s age. In New Jersey, the New Jersey Law Against Discrimination (“NJLAD”) offers even broader protections. Unlike its federal counterpart, the NJLAD does not impose a minimum age requirement of 40 for a discrimination claim. This means it protects workers from discrimination based on their age, whether young or old.
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New Jersey has allowed the use of cannabis for at least some reasons for the last fifteen years. Still, the relationship between New Jersey employment law and cannabis law remains uncertain. Employees in New Jersey who use cannabis for medical purposes with a doctor’s prescription may have rights under state laws prohibiting disability discrimination. A much newer law allows recreational use of small amounts of cannabis. This law specifically states that employers may not discriminate against employees based on legal cannabis use outside of work, provided they are not under the influence of cannabis while at work. A job applicant filed suit against a major retailer after it rescinded a job offer because a drug test was positive for cannabis. The Third Circuit Court of Appeals ruled in late 2024 that the recreational cannabis law does not give job applicants or employees the right to file a private cause of action for alleged discrimination. This leaves employees with legal rights against discrimination but no clear means of enforcing those rights.

The New Jersey medical cannabis law took effect in 2009. It originally stated that employers did not have to accommodate medical cannabis use. Subsequent amendments to that section of the law have removed that language. Currently, the medical cannabis law does not contain any explicit employment protections. A 2020 ruling by the New Jersey Supreme Court, however, held that the New Jersey Law Against Discrimination’s prohibition on disability discrimination applies to medical cannabis use outside of work. The case involved an employee who lost his job after his employer discovered he used cannabis with a prescription to treat the symptoms of cancer.

The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) became law in 2021. It states that an employer may not refuse to hire or fire someone, nor may it discriminate in other ways because a person does or does not use cannabis for lawful recreational purposes. It also states that employers may not take adverse actions solely based on “the presence of cannabinoid metabolites” in a drug test resulting from lawful cannabis use. Employers may, however, require drug testing to ensure employees are not working under the influence. The statute does not state that employees may file suit for alleged violations, although some courts have allowed discrimination claims to proceed.
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Employees have privacy rights when it comes to their employment, although the extent of those rights depends, in part, on whether they work for the government or a private business or organization. Public employers have obligations under various statutes and, ultimately, the U.S. and state constitutions. Violation of privacy and other civil rights may expose public employers to liability for damages. New Jersey employment laws protect employees from a wide variety of employer misconduct. Public employees may also enjoy protection under federal and state civil rights laws. A 2024 ruling by the Third Circuit Court of Appeals reversed the dismissal of a corrections officer’s civil rights lawsuit against the county that employed him. The plaintiff obtained a jury verdict against a former corrections administrator for $662,000 in 2023. The Third Circuit’s ruling opens the possibility of making other defendants liable for the judgment.

Both state and federal law protect individuals from civil rights violations by government officials and agents. The New Jersey Civil Rights Act (NJCRA) allows people to file civil lawsuits against people who deprive them of constitutional rights while “acting under color of law.” At the federal level, 42 U.S.C. § 1983 provides a similar cause of action. Public employees may be able to file claims against their employers for actions that deprive them of their civil rights.

The plaintiff in the Third Circuit case worked for a county jail as a corrections officer. He was also president of the local union. According to his lawsuit, the union learned that several jail administrators were enrolled in the state pension system for law enforcement and firefighters, even though their positions as administrators made them ineligible. They also learned that one administrator had allegedly attained his position despite not fulfilling all of the requirements established by regulations and the jail’s collection bargaining agreement.
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