New Jersey-2020-S1422-Introduced

An Act concerning the payment of the prevailing wage on public work and amending P.L.1963, c.150 and P.L.1999, c.238.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 4 of P.L.1963, c.150 (C.34:11-56.28) is amended to read as follows:

4. The public body, any lessee to whom the public body is leasing a property or premises and any lessor from whom the public body is leasing or will be leasing a property or premises awarding any contract for public work or otherwise undertaking any public work shall:

(a) ascertain from the commissioner the prevailing wage rate in the locality in which the public work is to be performed for each craft or trade needed to perform the contract; and

(b) shall [specify in the contract itself] provide, in the documents provided to each bidder for the contract for public work, information regarding what the prevailing wage rate in the locality is for each craft or trade or classification of all workers needed to perform the contract during the anticipated term thereof, and, when the contract is awarded, shall specify that information in the contract itself. Nothing in this act however shall prohibit the payment of more than the prevailing wage rate to any worker employed on a public work.

(cf: P.L.2007, c.68, s.3)

2. Section 5 of P.L.1963, c.150 (C.34:11-56.29) is amended to read as follows:

5. a. Every contractor and subcontractor shall keep an accurate record showing the name, craft or trade, and actual hourly rate of wages paid to each worker employed by him in connection with a public work and such records shall be preserved for two years from date of payment. Each public entity on a public work project exceeding a contract amount exceeding $5 million shall employ an independent Clerk of the Works to keep records of each worker on their project. The record shall be open at all reasonable hours to the inspection of the public body awarding the contract, to any other party to the lease or agreement to lease pursuant to which the public work is done, and to the commissioner.

b. If, during a given workweek, a worker performs work in multiple job classifications and two or more prevailing wage rates are applicable to the separate classes of work performed pursuant to the "New Jersey Prevailing Wage Act, P.L.1963, c.150 (C.34;11-
56.25 et seq.), the contractor shall pay the worker the highest of the prevailing wage rates for all hours worked in that workweek, unless the contractor's records clearly delineate which hours of work for the worker were spent engaged in each separate class of work. If a worker is employed for a portion of a given workweek in work which is not subject to that act and would otherwise be compensated at a rate lower than the applicable prevailing wage rate for the work performed during that workweek, the contractor shall pay the worker the higher prevailing wage rate for all work performed during the workweek, including work not subject to the act, unless the contractor's records clearly delineate which hours of work for the worker are spent engaged in work subject to the act and which are not.

(cf: P.L.1990, c.27, s.4)

3. Section 11 of P.L.1963, c.150 (C.34:11-56.35) is amended to read as follows:

11. (a) Any employer who willfully hinders or delays the commissioner in the performance of his duties in the enforcement of this act, who contracts with a public body to perform public work while debarred from doing so pursuant to section 14 of P.L.1963, c.150 (C.34:11-56.38), or fails to make, keep, and preserve any records as required under the provisions of this act, or falsifies any such record, or refuses to make any such record accessible to the commissioner upon demand, or refuses to furnish a sworn statement of such record or any other information required for the proper enforcement of this act to the commissioner upon demand, or pays or agrees to pay wages at a rate less than the rate applicable under this act or otherwise violates any provision of this act or of any regulation or order issued under this act shall be guilty of a disorderly persons offense and shall, upon conviction therefor, be fined not less than $100.00 nor more than $1,000 or be imprisoned for not less than 10 nor more than 90 days, or by both such fine and imprisonment. Each week, in any day of which a worker is paid less than the rate applicable to him under this act and each worker so paid, or in which any other violation of the provisions of this section occurs, shall constitute a separate offense.

(b) As an alternative to or in addition to any other sanctions provided by law for violations of any provision of P.L.1963, c.150 (C.34:11-56.25 et seq.), when the Commissioner of Labor finds that an employer has violated that act, the commissioner is authorized to assess and collect administrative penalties, up to a maximum of $2,500 for a first violation and up to a maximum of $5,000 for each subsequent violation, specified in a schedule of penalties to be promulgated as a rule or regulation by the commissioner in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). When determining the amount of the penalty imposed because of a violation, the commissioner shall consider factors which include the history of previous violations by the employer, the seriousness of the violation, the good faith of the employer and the size of the employer's business. No administrative penalty shall be levied pursuant to this section unless the Commissioner of Labor provides the alleged violator with notification of the violation and of the amount of the penalty by certified mail and an opportunity to request a hearing before the commissioner or his designee within 15 days following the receipt of the notice. If a hearing is requested, the commissioner shall issue a final order upon such hearing and a finding that a violation has occurred. If no hearing is requested, the notice shall become a final order upon expiration of the 15-day period. Payment of the penalty is due when a final order is issued or when the notice becomes a final order. Any penalty imposed pursuant to this section may be recovered with costs in a summary proceeding commenced by the commissioner pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.). Any sum collected as a fine or penalty pursuant to this section shall be applied toward enforcement and administration costs of the Division of Workplace Standards in the Department of Labor.

(c) When the Commissioner of Labor finds that the employer has violated provisions of P.L.1963, c.150 (C.34:11-56.25 et seq.), the commissioner may refer the matter to the Attorney General or his designee for investigation and prosecution. Nothing in this subsection shall be deemed to limit the authority of the Attorney General to investigate and prosecute violations of the New Jersey Code of Criminal Justice, nor to limit the commissioner's ability to refer any matter for criminal investigation or prosecution.

(cf: P.L.2003, c.276, s.1)

4. Section 13 of P.L.1963, c.150 (C.34:11-56.37) is amended to read as follows:

13. a. In the event that the commissioner shall determine, after investigation, that any contractor or subcontractor has failed to pay the prevailing wage, has utilized on the public work a subcontractor who is debarred from public work pursuant to section 14 of P.L.1963, c.150 (C.34:11-56.38) or does not meet the registration requirements of "the Public Works Contractor Registration Act, P.L.1999, c.238 (C.34:11-56.48 et seq.), or has performed work on a public work, or maintained an interest in another contractor performing work on a public work, while debarred from public work pursuant to section 14 of P.L.1963, c.150 (C.34:11-56.38) or not meeting the registration requirements of "the Public Works Contractor Registration Act, P.L.1999, c.238 (C.34:11-56.48 et seq.), he shall thereupon list and keep on record the name of such contractor or subcontractor and forthwith give notice by mail of such list to any public body who shall request the commissioner so to do. Where the person responsible denies that a failure to pay the prevailing wage or other violation has occurred, he shall have the right to apply to the commissioner for a hearing which must be afforded and a decision rendered within 48 hours of the request for a hearing. If the commissioner rules against the petitioning party he shall have the right to apply for injunctive relief in the Superior Court against the listing by the commissioner.

b. The commissioner shall create, maintain, and distribute an informational list for contractors and subcontractors who bid on and perform public work, which includes but need not be limited to wage payment, recordkeeping, and registration requirements, and applicable penalties, pursuant to the "New Jersey Prevailing Wage Act," P.L.1963, c.150 (C.34:11-56.25 et seq.) and "The Public Works Contractor Registration Act," P.L.1999, c.238 (C.34:11-56.48 et seq.). The commissioner shall prominently display the informational list on a website maintained by the Department of Labor and Workforce Development and shall distribute to any contractor, subcontractor, or public body, upon request, the informational list, as well as the list of the names of contractors and subcontractors who have failed to pay prevailing wages as determined pursuant to subsection a. of this section, or who have failed to pay any State employer payroll tax.

(cf: P.L.2015, c.282)

5. Section 14 of P.L.1963, c.150 (C.34:11-56.38) is amended to read as follows:

14. The public body awarding any contract for public work, or otherwise undertaking any public work, or entering into a lease or agreement to lease pursuant to which public work is to be done, shall first ascertain from the commissioner the list of names of contractors or subcontractors who have failed to pay prevailing wages as determined in section 13 of this act, and no contract shall be awarded to such contractor or subcontractor, or to any firm, corporation or partnership in which such contractor or subcontractor has an interest until three years have elapsed from the date of listing as determined in section 13 of this act, and it shall be a violation of P.L.1963, c.150 (C.34:11-56.25 et seq.) for a contractor or subcontractor, once placed on the debarment list, to have or maintain an interest in any contractor or subcontractor which performs public work. In the case of a contractor or subcontractor who performs work on a public work, or maintains an interest in a contractor or subcontractor performing public work. while debarred from public work pursuant to section 14 of P.L.1963, c.150 (C.34:11-56.38), the period of debarment shall be extended an additional five years.

For purposes of this section, "interest" shall mean an interest in the firm, corporation or partnership bidding on, or performing public work, whether having the interest as an owner, partner, officer, manager, employee, agent, consultant or representative. The term may also include, but not be limited to, all instances in which the contractor or subcontractor listed by the commissioner under section 13 of this act has received payments, whether those payments are in the form of cash or any other form of compensation from the firm, corporation or partnership, or when the contractor or subcontractor listed by the commissioner under section 13 of this act has entered into any contract or agreement with the firm, corporation or partnership for services performed or to be performed, for services that have been or will be assigned or subletted, or for the sale, rental or lease of vehicles, tools, equipment or supplies during the period from the initiation of the proceedings under section 13 of this act against the contractor or subcontractor until three years have elapsed from the date that the contractor or subcontractor has been listed by the commissioner under section 13 of this act. The term "interest" shall not include shares held in a publicly traded corporation if the shares were not received as compensation after the initiation of proceedings under section 13 of this act from a firm, corporation or partnership bidding or performing public work.

A rebuttable presumption that a contractor or subcontractor listed by the commissioner under section 13 of this act has an interest in another firm, corporation or partnership may arise if the two share any of the following capacities or characteristics: (1) perform similar work within the same geographical area and within the same monetary range, (2) occupy the same premises, (3) have the same telephone number or fax number, (4) have the same email address or internet website, (5) employ substantially the same administrative employees, (6) utilize the same tools and equipment, (7) employ or engage the services of any listed person or persons involved in the direction or control of the other, or (8) list substantially the same work experience in order to obtain the requisite pre-qualification rating from the Department of the Treasury, or any other entity, to participate in any public work.

If a rebuttable presumption has arisen that a contractor or subcontractor listed by the commissioner under section 13 of this act has an interest in another firm, corporation or partnership, the adversely affected contractor or subcontractor, including the firm, corporation or partnership, which would by virtue of a finding of "interest" be prevented under this section from being awarded public work, may request a hearing, which shall be conducted in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

(cf: P.L.2007, c.76, s.1)

6. Section 3 of P.L.1999, c.238 (C.34:11-56.50) is amended to read as follows:

3. As used in this act:

"Commissioner" means the Commissioner of Labor and Workforce Development or his duly authorized representatives.

"Contractor" means a person, partnership, association, joint stock company, trust, corporation, or other legal business entity or successor thereof who enters into a contract which is subject to the provisions of the "New Jersey Prevailing Wage Act," P.L.1963, c.150 (C.34:11-56.25 et seq.), or subject to any other State law which requires the payment of the prevailing wage rates set by that act, and includes any subcontractor or lower tier subcontractor of a contractor as defined herein.

"Department" means the Department of Labor and Workforce Development.

"Director" means the Director of the Division of Wage and Hour Compliance in the Department of Labor and Workforce Development.

"Worker" includes laborer, mechanic, skilled or semi-skilled laborer and apprentices or helpers employed by any contractor or subcontractor and engaged in the performance of services directly upon a public work, who have completed or are actively participating in a registered apprenticeship program, regardless of whether their work becomes a component part thereof, but does not include material suppliers or their employees who do not perform services at the job site.

"Registered apprenticeship program" means an apprenticeship program which is registered with and approved by the United States Department of Labor and which provides each trainee with combined classroom and on-the-job training in an occupation recognized as an apprenticeable trade and meets the program standards of enrollment and graduation under 29 C.F.R. s.29.6.

(cf: P.L.2019,c.21, s.1)

7. Section 4 of P.L.1999, c.238 (C.34:11-56.51) is amended to read as follows:

4. No contractor shall bid on any contract for public work as defined in section 2 of P.L.1963, c.150 (C.34:11-56.26), or public work subject to any other State law which requires the payment of the prevailing wage rates set by the "New Jersey Prevailing Wage Act," P.L.1963,c.150 (C.34:11-56.25 et seq.), unless the contractor is registered pursuant to this act. No contractor shall list a subcontractor in a bid proposal for the contract unless the subcontractor is registered pursuant to P.L.1999, c.238 (C.34:11-56.48 et seq.) at the time the bid is made. No contractor or subcontractor, including a subcontractor not listed in the bid proposal, shall engage in the performance of any public work subject to the contract, unless the contractor or subcontractor is registered pursuant to that act.

(cf: P.L.2003, c.91, s.2)

8. Section 5 of P.L.1999, c.238 (C.34:11-56.52) is amended to read as follows:

5. a. A contractor shall register in writing with the department on a form provided by the commissioner. The form shall require the following information:

(1) The name, principal business address and telephone number of the contractor;

(2) Whether the contractor is a corporation, partnership, sole proprietorship, or other form of business entity;

(3) If the contractor's principal business address is not within the State, the name and address of the contractor's custodian of records and agent for service of process in this State;

(4) The name and address of each person with a financial interest in the contractor and the percentage interest, except that if the contractor is a publicly-traded corporation, the contractor shall supply the names and addresses of the corporation's officers;

(5) The contractor's tax identification number and unemployment insurance registration number;

(6) A certification form provided by the commissioner, with documentation satisfactory to the commissioner, that the contractor has all valid and effective licenses, registrations or certificates required by State law, including registrations or certifications required to do business in the State of New Jersey, and the contractor, if directly employing craftworkers, participates in a registered apprenticeship program as defined in section 3 of P.L.1999, c.238 (C.34:11-56.50) for each craft they employ; [and]

(7) Any violations by the contractor of any federal or state prevailing wage law during the immediately preceding ten years; and

(8) Any other relevant and appropriate information as determined by the commissioner.

b. At the time of registration, and subsequently upon request, the contractor shall submit to the commissioner documentation demonstrating that the contractor has worker's compensation insurance coverage for all workers as required by law.

(cf: P.L.2019, c.21, s.2)

9. Section 6 of P.L.1999, c.+238 (C.34:11-56.53) is amended to read as follows:

6. a. The contractor shall pay an initial annual non-refundable registration fee of [$300] $500 to the commissioner. The non-refundable registration fee for the second annual registration shall be [$300] $500. Upon successful completion of two consecutive years of registration, a contractor may elect to register for a two-year period and pay a non-refundable registration fee of [$500] $750.

b. A contractor who is performing public work on the effective date of this act shall submit the registration application form and fee to the commissioner within 30 days of the effective date of this act.

c. Registration fees collected pursuant to this act shall be applied toward the enforcement and administration costs of the Division of Workplace Standards, Office of Wage and Hour Compliance, Public Contracts section and Registration section within the department.

(cf: P.L.2003, c.91, s.3)

10. This act shall take effect immediately.

STATEMENT

This bill amends the New Jersey Prevailing Wage Act, P.L.1963, c.150 (C.34:11-56.25 et seq.) and the Public Works Contractor Registration Act, P.L.1999, c.238 (C.34:11-56.48 et seq.) to strengthen the enforcement of those acts.

The bill requires that any public body requesting bids for a contract for public work subject to the prevailing wage law provide, in the documents provided to each bidder, information regarding prevailing wage rates applicable to that contract, and requires each public entity on a public work project exceeding a contract amount exceeding $5 million to employ an independent Clerk of the Works to keep all records required by the law regarding each worker on the public work.

The bill requires that a worker who works during a week in multiple job classifications for which more than one prevailing wage rate applies must be paid the highest rate for all hours worked unless contractor records show which hours of work were spent engaged in each class of work, and further requires that if a worker is employed for a portion of a week in work not subject to the prevailing wage rates, in which the worker would otherwise be paid less than the prevailing wage rate, the contractor must pay the prevailing wage rate for all of the work unless contractor records specify which hours of work are subject to prevailing wage rates and which are not.

The bill makes it a disorderly persons offense, subject to fines of $100 to $1,000 and imprisonment of 10 to 90 days, for a contractor to contract with a public body to perform public work, or maintain an interest in another contractor performing public work, while debarred under the prevailing wage law, and extends the period of debarment by five years. The bill also permits the debarment of a contractor who utilizes a debarred subcontractor in public work.

The bill requires registration under the Public Works Contractor Registration Act by any contractor who bids on public work, not only public work directly subject to the prevailing wage law, but also any public work in which prevailing wage rates are required to be paid under other laws, including the laws regarding public works contracts of the Economic Development Authority, county improvement authorities, the Casino Reinvestment Development Authority, the Educational Facilities Financing Authority, and the Health Care Facilities Financing Authority.

The bill requires a contractor registering under that act to disclose all violations by the contractor of any federal or state prevailing wage law during the preceding ten years, and increases the registration fees under that act from $300 to $500 for the first and second year of registration, and increases the fee charged to a contractor who subsequently chooses to register for a two-year period from $500 to $750.