In an unpublished opinion, the Appellate Division held that the New Jersey Supreme Court’s holding in Hargrove v. Sleepy’s does not apply to Wage Payment Law claims asserted by fully commissioned real estate salespeople because the Brokers Act forecloses the use of the “ABC test” to distinguish between employees and independent contractors.
According to the opinion, this is court’s second opinion issued in the case. The plaintiff, James Kennedy II, was a fully commissioned real estate agent with licensed real estate broker, Weichert. Kennedy alleged a putative class action claim that Weichert had violated a provision of the WPL “by deducting marketing, insurance, and other expenses” from his wages without authorization. Weichert moved to dismiss this claim for failure to state a claim and argued “that fully commissioned real estate salespersons are independent contractors, whom the WPL does not cover.”
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