A controversial proposed ordinance, Ordinance 16.081, in Jersey City, New Jersey would mandate a minimum workweek of 30 hours for certain employees engaged in “business services.” The ordinance’s stated purpose is “to prevent full-time building service jobs from being unnecessarily broken into part-time jobs.” Employers have rather wide discretion under state and federal laws to define “full-time” and “part-time” for their own employees. Federal law has recently begun to define “full-time” in certain contexts, however, allegedly resulting in employers cutting hours. The Jersey City ordinance has met with substantial opposition from business leaders, resulting in the postponement of a final vote in mid-May 2016.
The Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., does not distinctly define “full-time” and “part-time” employment. A 40-hour workweek is traditionally considered “full-time,” at least in part because of overtime provisions in the FLSA and many state laws. These laws require payment of time-and-a-half to non-exempt workers for hours worked in excess of 40 hours. The principal regulation placed on employers with regard to full-time and part-time employment is consistency. If their employment policies define full-time and part-time employment, provide benefits for full-time or part-time employees, or provide certain rights to full- or -part-time employees, they must apply those policies consistently.
The Affordable Care Act (ACA), also known as “Obamacare,” defines “full-time” employment in the context of providing health insurance as an employment benefit. It states that a “large employer,” defined as one having 50 or more employees, must offer “the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan” to all employees working at least 30 hours per week. 29 U.S.C. § 4980H. This has allegedly resulted in some employers reducing hours from 40 or more hours per week to 29 or fewer, in order to avoid the health insurance mandate. In the absence of any other means to deliver access to health care, Jersey City is attempting to prevent certain employers from cutting hours.
Ordinance 16.081 would amend Chapter 254 of the Jersey City Code of Ordinances. It would apply to employees who perform “building services” work at two different types of sites: (1) sites with more than 100,000 square feet of space, such as office buildings or campuses, colleges, universities, or museums; and (2) residential facilities with 50 or more units. It defines “business services” to include jobs like “janitor, building cleaner, concierge, porter, doorperson, building superintendent, armed or unarmed security guard or handyperson.” It specifically excludes security guards or concierges who only work on weekends.
Any employer that directly employs business services workers at a covered worksite, or that contracts or subcontracts for such workers, would be required to provide each worker with a minimum of 30 hours of work per week. Penalties for violations of the ordinance could include fines of at least $100, up to a maximum of $2,000, as well as imprisonment or community service for up to 90 days. Jersey City Code of Ord. § 1-25.
The ordinance received initial approval from the city council, by a vote of 6-2-1, on April 26, 2016. It was scheduled for a final vote on May 11, but the council president tabled it before the vote after the ordinance received large amounts of criticism from business owners and landlords.
If you need to speak to an wage law attorney in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997.
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