I do much of the applicable wage defense on behalf of employers, both at the federal level (i.e. Davis-Bacon Act) and in the state of New Jersey. It sometimes appears that unions are able to aggressively engage with the NJDOL to take administrative action that speaks against or makes it difficult for such employers to conduct their construction business. A prime example of this is the law requiring contractors (e.g. those doing public works) to join an apprenticeship program. Well, a trade association, the New Jersey Electronic Life Supply Association (“Association”), represented by my partner Beth Hampton, has now challenged that requirement in federal court. The case is titled Centcom Corporation et al. v. New Jersey Department of Labor and Human Resources Development and has been filed in federal court in New Jersey District.
The lawsuit alleges that this requirement prevents members of the association, especially smaller companies, from fulfilling existing contracts, and was really a boondoggle for the unions, which are very powerful in New Jersey. The complaint states: “This preference was given to reward political favor and to ensure that every public contractor in New Jersey was part of and contributed to a union, and for no other legitimate purpose.”
The association contends that the apprenticeship obligation is an inadmissible benefit for union companies, as one way of ensuring compliance with this mandate is through a collective bargaining agreement with a union, as the unions have access to various government-approved apprenticeship programs. Members of this association, which is made up of companies that install security systems (e.g., fire detection), have the added barrier that the US Department of Labor has not approved a training program for companies that install security systems.
Therefore, these companies cannot renew their certificate of registration with the NJDOL, which allows them to carry out public works. As a result, the entities cannot maintain the systems they install themselves. The association claims that because of the uniqueness of these systems, the state would be forced to install new security systems in many public buildings.
The association accuses this apprentice requirement of violating the treaty clause of the US Constitution, which prevents states from enacting laws that hinder the performance of the treaty. The association also contends that the law violates the due process clause by de facto preventing these companies from doing their business, as well as the first amendment by hiring contractors because of their association (or lack of one Association) discriminate with a union. The plaintiffs apply for a declaratory and interim injunction, ie an order declaring the law unconstitutional.
Ms. Hampton put it aptly: “Hardworking small business owners who have invested their life’s work in building a business from the ground up and who have contracted and worked under local councils, counties and cities in our state for decades are disadvantaged by state law to continue existing contracts unless they set up a training program. “
Take that away
The current wage laws are, so to speak, the great compensation. Employers, whether unionized or not, must pay the same wages and benefits for a public project. So far, so good. However, the NJDOL has not only broadened the definition of “public work” but has also taken measures that appear to facilitate the organization of trade unions. Like this doctrine.
We’ll see where the lawsuit goes …