In 1968, Walter Earle started a small paving company in Monmouth County, New Jersey. His company quickly grew, expanding into several asphalt manufacturing plants, a licensed general construction company, an apprenticeship program, and a school to train new truck drivers.
Earle Asphalt Company attributes its impressive growth to the positive relationships it has fostered between management and employees. It has been a non-union “open shop” since its founding—meaning workers and supervisors can communicate openly and directly about topics like wages and hours without having to go through an intermediary.
The results of this approach speak for themselves; in an industry with high turnover, the average tenure for Earle Asphalt’s senior employees is 18 years.
The company has also been recognized nationally for its commitment to second-chance hiring—opening its doors to people who have been incarcerated or otherwise struggled to find work.
Now run by Walter’s three sons, Earle Asphalt boasts over 650 employees improving New Jersey one construction project at a time. Annually, about 80% of their business comes from government contracts designed to serve the public—building roadways and overpasses, installing sewer systems, replacing interstate superstructures, and resurfacing the New Jersey Turnpike.
Under New Jersey law, however, Earle Asphalt’s freedom to manage its own workforce comes with strings attached.
New Jersey requires every contractor and subcontractor on public construction projects to meet state-mandated “targeted goals” for the employment of racial minorities and women across 18 trades. Once work begins, contractors must submit monthly compliance reports. Those who fall short face fines, financial penalties, and lower state ratings that hurt their ability to compete for future contracts.
Contractors who do not meet the race- and sex-based hiring goals must either enter a referral agreement with a union—obtaining assurances that the union will supply the required minority workers—or complete 25 separate compliance actions. This structure pressures contractors to work through state-favored unions even though their employees chose Earle precisely because of its open-shop structure.
The Fourteenth Amendment’s Equal Protection Clause explicitly forbids race- and sex-based classifications. To survive constitutional review of the racial classifications, New Jersey must prove they serve a compelling governmental interest, are narrowly tailored to that interest, and have no workable race-neutral alternative. It cannot. The sex-based classifications are likewise unable to meet the burden the Constitution demands, as they do not serve a sufficiently important governmental interest, nor are they substantially related to pursuing one.
New Jersey also promotes project labor agreements (PLAs)—pre-hire collective bargaining agreements that govern all employment terms on a project. Once limited to large projects, the State expanded the law in 2021. In 2026, Governor Phil Murphy eliminated the monetary threshold altogether, extending PLA requirements to virtually all public construction.
On PLA projects, contractors must channel all employment decisions—wages, hours, safety—through the union. For a company like Earle Asphalt, built on direct relationships between leadership and employees, that requirement strikes at the heart of what has made the company work for nearly six decades. Earle Asphalt has brought a federal lawsuit, represented free of charge by Pacific Legal Foundation and the Wisconsin Institute for Law & Liberty, to end these unconstitutional conditions and restore equal access to public contracting.
What’s At Stake?
- The Constitution guarantees equality before the law. The government cannot force private companies to sort workers by race or sex as a condition of competing for public contracts.
- The First Amendment protects not only the right to speak, but the right not to associate. Forcing contractors to work through unions they did not choose as a condition of public work violates that guarantee.
