Registration Act Worth Tracking
The New Jersey State Legislature passed an amendment to the New Jersey Public Works Contractor Registration Act in 2018 that required that contractors wanting to perform public work in New Jersey participate in a “qualifying” apprenticeship training program. The definition of what qualifies as a program under the new law is narrow by most measures; and because the trade unions provide the easiest way to fit the legislature’s limited definition, many believe that the law was passed as a way to push contractors to join the trade unions.
A lawsuit filed by the New Jersey Electronic Life Safety Association and one of its members is now calling the law unconstitutional and challenging it in court. NJELSA makes multiple arguments against the law that seem, on their face, to have some merit. The first deals with the contract clause of the federal constitution. In effect, they argue that the law is impacting the ability of its members to perform contracts that were entered into before the new law went into effect; and the affected contractors don’t have a remedy because there are no approved apprenticeship programs for their trade – whether union or open shop. They also argue that the law violates due process and the First Amendment by discriminating against open shop contractors.
It’s early days on the lawsuit, but the case is one worth watching. While the numbers vary depending on who you ask, there is no dispute that in excess of 80% of the construction workforce is not affiliated with a union. Intended or not, the new law impacted the ability of open shop contractors to work on public works projects in New Jersey in a substantial way. If this challenge is successful and the law is struck down as unconstitutional, a large number of contractors who cannot currently bid on that work will be back in the picture. Conversely, the number of contractors available to do public work in New Jersey will remain artificially low if the challenge fails. Either way, the impact on the construction market in New Jersey will be significant.
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Josh Quinter is a commercial litigation attorney, with a focus on construction law, and an Associate Managing Principal. Mr. Quinter actively works with his clients in the areas of business planning, contract negotiation and project consulting, risk management and dispute resolution, and litigation. His client service and professionalism have earned him the distinction of being named a Pennsylvania Super Lawyer, a Lawyer on the Fast Track, and a Rising Star.
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