NJ Constitutional Wage Hike Could Go Too Far, Attorneys Say

January 31, 2013 – In The News

Now that New Jersey Gov. Chris Christie has vetoed legislation boosting the state's minimum wage, Democrats are poised to push for a constitutional amendment that would accomplish nearly the same goals, though some attorneys caution it would be a rare example of using the state constitution for policymaking and make it harder to address unexpected economic changes.

Christie on Monday conditionally vetoed a bill that would have increased the minimum hourly wage to $8.50 and provided future increases based on the Consumer Price Index, but the Democrat-controlled Legislature last year also passed a proposed constitutional amendment that called for an increase to $8.25 as well as indexing.

While pros and cons of a minimum wage increase and so-called indexing have been hotly debated, there is no question that seeking such changes through an amendment to the state constitution is legally permissible.

The real question is whether Democrats should use the amendment process. Previously, lawmakers have changed the state's minimum wage through statutory amendments. Doing so via the constitution would be a severe misuse of that power, argued Mark Tabakman, a partner with Fox Rothschild LLP who practices labor and employment law.

“The New Jersey State Wage and Hour Law has been on the books for decades, and the Legislature has amended it as it sees fit," Tabakman said. “I do not comprehend the need to impose an additional layering of law, a constitutional mandate, nor do I see how it would even effectively operate.”