Bill Text: NJ A1094 | 2012-2013 | Regular Session | Introduced
Bill Title: Concerns wage protection and certain penalties for violating laws regarding wages, compensation or benefits.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2012-01-10 - Introduced, Referred to Assembly Labor Committee [A1094 Detail]
Download: New_Jersey-2012-A1094-Introduced.html
STATE OF NEW JERSEY
215th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION
Sponsored by:
Assemblywoman ANNETTE QUIJANO
District 20 (Union)
SYNOPSIS
Concerns wage protection and certain penalties for violating laws regarding wages, compensation or benefits.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning penalties for violating laws regarding payment of wages, compensation or benefits, supplementing Title 34 of the Revised Statutes, and amending P.L.1999, c.90.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) This act shall be known and may be cited as the "Wage Protection Act."
2. (New section) As used in sections 3 through 5 of this act:
"Agency" means any agency, department, board or commission of this State, or of any political subdivision of this State, that issues a license for purposes of operating a business in this State.
"Commissioner" means the Commissioner of Labor and Workforce Development.
"Community-based organization" means a public, or nonprofit private, organization funded with public or private funds, or both, that provides services to day laborers, migrant laborers, temporary laborers, or any other type of employee.
"Department" means the Department of Labor and Workforce Development.
"Legal services organization" means a public, or nonprofit private, organization funded with public or private funds, or both, that provides counseling or advice related to wage protection laws, preparation of legal documents, or representation of any person before a court or administrative agency.
"License" means any agency permit, certificate, approval, registration, charter or similar form of authorization that is required by law and that is issued by any agency for the purposes of operating a business in this State, and includes, but is not limited to:
(1) A certificate of incorporation pursuant to the "New Jersey Business Corporation Act," N.J.S.14A:1-1 et seq.;
(2) A certificate of authority pursuant to N.J.S.14A:13-1 et seq.;
(3) A statement of qualification or a statement of foreign qualification pursuant to the "Uniform Partnership Act (1996)," P.L.2000, c.161 (C.42:1A-1 et al.);
(4) A certificate of limited partnership or a certificate of authority pursuant to the "Uniform Limited Partnership Law (1976)," P.L.1983, c.489 (C.42:2A-1 et seq.);
(5) A certificate of formation or certified registration pursuant to the "New Jersey Limited Liability Company Act," P.L.1993, c.210 (C.42:2B-1 et seq.); and
(6) Any license, certificate, permit or registration pursuant to R.S.48:16-1 et seq., R.S.48:16-13 et seq.; the "New Jersey Alcoholic Beverage Control Act," R.S.33:1-1 et seq.; section 4 of P.L.2001, c.260 (C.34:8-70); P.L.1971, c.192 (C.34:8A-7 et seq.); section 12 of P.L.1975, c.217 (C.52:27D-130); section 14 of P.L.1981, c.1 (C.56:8-1.1); or "The Public Works Contractor Registration Act," P.L.1999, c.238 (C.34:11-56.48 et seq.).
3. (New section) a. Upon the conviction of an employer under subsection a. of section 10 of P.L.1999, c.90 (C.2C:40A-2) the Attorney General, or the Attorney General's designee, shall notify the commissioner of the employer's conviction. Upon notification by the Attorney General, or his designee, the commissioner:
(1) Shall, after affording the employer or any successor firm of the employer notice and an opportunity for a hearing in accordance with the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), issue a written determination directing each appropriate agency to suspend any license issued by the agency to the employer or successor firm, for a period of time determined by the commissioner. In determining the length of a suspension, the commissioner shall consider any of the following factors which are relevant:
(a) The number of employees for which the employer or successor firm failed to pay wages, compensation or benefits;
(b) The total amount of wages, compensation or benefits not paid by the employer or successor firm;
(c) Any other harm resulting from the violation;
(d) The duration of the violation;
(e) Whether the employer or successor firm was found to have retaliated against an employee for filing a complaint under section 10 of P.L.1999, c.90 (C.2C:40A-2);
(f) Any prior misconduct by the employer or successor firm; and
(g) Any other factors the commissioner considers relevant; and
(2) Shall conduct an audit or inspection of the employer or successor firm not more than 12 months after the date of the commissioner's written determination.
b. If, in the audit or inspection conducted pursuant to subsection a. of this section, the commissioner determines that the employer or successor firm has continued in its failure to pay wages, compensation or benefits, or if the commissioner is notified of a subsequent violation of subsection a. of section 10 of P.L.1999, c.90 (C.2C:40A-2) by the employer, the commissioner, after affording the employer or successor firm notice and an opportunity for a hearing in accordance with the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall issue a written determination directing each appropriate agency to permanently revoke any license that is issued by the agency to the employer or any successor firm to the employer.
c. Upon receipt of any written determination of the commissioner directing an agency to suspend or revoke a license pursuant to this section, and notwithstanding any other law, the agency shall immediately suspend or revoke the license.
4. (New section) The department, for the purpose of supporting the enforcement of section 10 of P.L.1999, c.90 (C.2C:40A-2), shall:
a. Contract with community-based organizations and legal services organizations to disseminate information to day laborers, migrant laborers, temporary laborers, or any other type of employee concerning the protections afforded by section 10 of P.L.1999, c.90 (C.2C:40A-2), and the process by which an individual may file a complaint under that law.
b. Contract with community-based organizations and legal services organizations to investigate, prepare, and if necessary, represent employees that file complaints under section 10 of P.L.1999, c.90 (C.2C:40A-2).
c. Require that community-based and legal services organizations contracted by the department make all services accessible to persons with limited English proficiency.
5. (New section) The commissioner, in consultation with the Administrative Director of the Courts and the Attorney General, shall submit to the Legislature twice each year a report evaluating the effectiveness of the "Wage Protection Act," P.L. , c. (C. ) (pending before the Legislature as this bill). The report shall include, but not be limited to:
a. The number and nature of complaints, prosecutions, dispositions, penalties, and business license suspensions and revocations.
b. A description of all community-based and legal services organizations contracted by the Department of Labor and Workforce Development to support the enforcement, as required by section 4, of the "Wage Protection Act."
c. Recommendations for strengthening the enforcement of the "Wage Protection Act," and any other recommendations regarding the effectiveness of the "Wage Protection Act."
6. Section 10 of P.L.1999, c.90 (C.2C:40A-2) is amended to read as follows:
10. Violation of contract to pay employees.
a. An employer or agent of an employer who has agreed with an employee or with a bargaining agent for employees to pay wages, compensation or benefits to or for the benefit of employees commits a disorderly persons offense if the employer or an agent of the employer:
(1) fails to pay wages when due as agreed or as required by law; or
(2) fails to pay compensation or benefits as agreed or as required by law within 30 days after due.
b. If a corporate employer violates subsection a., any officer or employee of the corporation who is responsible for the violation commits a disorderly persons offense.
c. An employee may file a citizen complaint alleging a violation of this section directly with a municipal court.
d. An employee filing a citizen complaint alleging a violation of this section may use a pseudonym and the address of an attorney or other representative designated by the employee instead of using his full name and address, if the complaint involves:
(1) an employee who is a minor;
(2) an employee who has a reasonable fear of retaliation; or
(3) confidential or sensitive information regarding an employee.
However, when a citizen complaint is filed under this section using a pseudonym, a second copy of the complaint shall be filed with the court identifying the true identity of the individual. Only the copy of the complaint and other documents identifying the employee by the pseudonym shall be a public record and be subject to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.).
e. A citizen complaint alleging a violation of this section shall be filed where the offense occurred, which for purposes of this section may be the place where the employee was hired or the place where the relevant work was performed by the employee.
f. Jurisdiction for prosecution under this section shall be the place where the offense occurred, which for purposes of this section may be the place where the employee was hired or the place where the relevant work was performed by the employee.
g. An employer found to have committed a violation of this section shall pay the employee the wages owed plus liquidated damages equal to 100 percent of the wages owed.
h. In addition to damages provided in this or any other law, an employer found guilty of violating the provisions of this section shall be fined $1,000 plus a 20 percent penalty of the wages owed for a first offense, and $2,500 plus a 20 percent penalty of the wages owed for subsequent offenses.
i. An employer who is found to have retaliated against an employee for filing a complaint under this section commits a disorderly persons offense and shall be liable to the employee for damages.
j. For purposes of this section:
"Compensation or benefits" is remuneration received in return for services rendered and includes, but is not limited to, health benefits, pensions, medical treatment, disability compensation and workers' compensation, including death benefits to dependents of workers who have died as a result of their employment.
"Employee" means any person suffered or permitted to work by an employer, except that independent contractors and subcontractors shall not be considered employees.
"Employer" means any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased individual, or the receiver, trustee, or successor of any of the same, employing any person in this State. For the purposes of this section the officers of a corporation and any agents having the management of such corporation shall be deemed to be the employers of the employees of the corporation.
"Wages" means the direct monetary compensation for labor or services rendered by an employee, where the amount is determined on a time, task, piece, or commission basis, including overtime pay and pay for sick, vacation, or other paid leave, and excluding any form of supplementary incentives and bonuses which are calculated independently of regular wages and paid in addition thereto.
"When due" is the time agreed upon by the employer and employee but in any case not greater than 16 days of completion of the work as provided for under section 2 of P.L.1965, c.173 (C.34:11-4.2) and in accordance with a bi-monthly payment schedule.
(cf: P.L.1999, c.90, s.10)
7. This act shall take effect immediately.
STATEMENT
This bill establishes the "Wage Protection Act." The bill revises the current provisions of section 10 of P.L.1999, c.90 (C.2C:40A-2), to strengthen enforcement procedures and criminal sanctions against employers who fail to pay wages, compensation or benefits to their employees. The bill imposes criminal sanctions against employers who retaliate against employees who file complaints under the statute and establishes definitions of key terms and phrases found in the statute.
Under this bill, an employer found to have committed a violation is required to pay the employee wages owed, plus liquidated damages equal to 100% of the wages owed. In addition to the damages, an employer found guilty of a violation is fined $1,000 plus a penalty of 20% of the wages owed for a first offense, and a fine of $2,500 plus a penalty of 20% of the wages owed for subsequent offenses. The bill also provides that an employer who is found to have retaliated against an employee for bringing a claim under the statute commits a disorderly persons offense and is liable to the employee for damages.
The statute is further amended to provide procedures for filing a complaint. The bill allows an employee to file a citizen complaint directly with a municipal court. The bill also provides that an employee may file the complaint using a pseudonym and the address of his attorney or other representative instead of his full name and address if the individual is a minor or has a reasonable fear of retaliation for filing the complaint. The citizen complaint may be filed where the employee was hired or the place where the relevant work was performed by the employee. For purposes of prosecution, the bill provides that the jurisdiction may be the place where the employee was hired or the place where the work was performed by the employee.
However, the bill provides that when a citizen complaint is filed using a pseudonym, a second copy of the complaint shall be filed with the court identifying the true identity of the individual. Only the copy of the complaint and other documents identifying the employee by the pseudonym shall be a public record and be subject to the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.), commonly known as the open public records act.
The bill also requires the Attorney General, or the Attorney General's designee, to notify the Commissioner of Labor and Workforce Development when an employer is convicted under the statute. Upon notification of a conviction, the commissioner may, after affording the employer notice and an opportunity for a hearing, issue a written determination directing each appropriate agency to suspend any license that is issued by the agency to the employer for a period of time determined by the commissioner based on certain factors. The bill also requires the commissioner to conduct an audit or inspection of the employer not more than 12 months after the date of the commissioner's written determination.
The bill further provides that if, in the audit or inspection, the commissioner determines that the employer or successor firm has continued in its failure to pay wages, compensation or benefits, or if the commissioner is notified of a subsequent violation by the employer of the statute, the commissioner, after affording the employer or successor firm notice and an opportunity for a hearing, is required to issue a written determination directing each appropriate agency to permanently revoke any license that is issued by the agency to the employer or any successor firm.
The Department of Labor and Workforce Development, under this bill, is required to contract with community-based organizations and legal services organizations to disseminate information regarding the protections and procedures established in the statute, as well as to investigate, prepare, and if necessary, represent employees that file complaints under the statute. The bill also requires that community-based and legal services organizations contracted by the department make all services accessible to persons with limited English proficiency.
Finally, the commissioner, in consultation with the Administrative Director of the Courts and the Attorney General, is required to submit to the Legislature twice each year a report evaluating the effectiveness of the "Wage Protection Act" and recommendations for strengthening its enforcement.
