More and more people are turning to freelancing, either as a side gig or as their main source of income. Freelancing has many advantages to full-time employment, including flexibility and the possibility of working for multiple clients.
However, employment law in New Jersey extends most protections to people who are actually employees, not freelancers. This means many freelancers do not have legal rights that other employees enjoy.
Minimum Wage & Overtime
New Jersey law requires that employers pay at least $10 an hour to most employees and to offer time and a half for all hours worked over 40 in a week. Specific rules also apply to meal periods and rest breaks.
Unfortunately, freelancers do not have these protections. You are free to agree to work for less than the minimum wage. You also will not qualify for overtime. If you want to be paid more, you need to negotiate an increase in compensation with your clients.
Discrimination & Harassment
Shockingly, freelancers are not protected from discrimination or harassment based on race, sex, sexual orientation, age, religion, or national origin. This means that a person or business can refuse to hire you based on any of these protected characteristics. You can also have your contract terminated.
Contract Rights
The best way to protect yourself as a freelancer is to include provisions in your freelancing contract. You negotiate your own compensation and should make sure that you get paid fairly. If the client cancels a big project, you should include provisions that allow you to keep some of the money advanced to you. Likewise, if a project takes more time than you thought, you can include provisions where the client will pay you more. Contract rights are binding, regardless of your status as a freelancer or employee.
Misclassification
Using freelancers has increased in popularity because employers can reduce their costs. Freelancers also have few legal protections, and some employers unfortunately take advantage of this. There is a temptation for employers to misclassify someone as a freelancer when they are actually an employee.
If you are an employee, you have many more rights. In addition to those listed above, you can qualify for unemployment insurance, workers compensation benefits, and protection under antidiscrimination laws.
The dividing line between an independent contractor and an employee is not always easy to draw. Different tests are used depending on the context. However, one key factor in most tests is the degree of control the employer exercises over you. If you are told when and where to work, then you look more like an employee than a freelancer.
Speak with a New Jersey Employment Lawyer
In our experience, misclassification happens all the time. Freelancers should protect their rights and speak up.
At Sattiraju & Tharney, LLP, we can help clients understand their classification and determine the best way to protect themselves. In some situations, we will file a lawsuit or make a claim with an administrative agency. For help with your case, please contact our New Jersey freelancer employment lawyers today to schedule an initial consultation.
FAQs About Freelancer Rights in New Jersey
Do freelancers in New Jersey have a legal right to minimum wage and overtime pay?
Generally, no. Most New Jersey employment protections, including the right to a minimum wage and 1.5x overtime pay, apply only to individuals legally classified as employees. Freelancers are free to negotiate their own rates, but they are also free to agree to work for less than the minimum wage and do not qualify for overtime under state law.
Are freelancers protected from workplace discrimination and harassment under New Jersey law?
Shockingly, freelancers and independent contractors are often not protected by the same anti-discrimination and anti-harassment laws that cover employees. This means that, in many cases, a client or business can legally refuse to hire a freelancer or terminate their contract based on characteristics like race, age, religion, or sexual orientation unless specific protections are written into the contract.
How can I tell if I am being illegally misclassified as a freelancer?
Misclassification occurs when an employer calls a worker a freelancer to avoid providing benefits and legal protections, even though the worker functions as an employee. A key factor in determining your status is the degree of control the employer exercises. If the company tells you exactly when, where, and how to work, you may actually be an employee entitled to benefits like unemployment insurance, workers’ compensation, and overtime.