New Jersey-2012-S985-Introduced

An Act concerning penalties for the failure to make required wage payments and amending P.L.1966, c.113.

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

1. Section 23 of P.L.1966, c.113 (C.34:11-56a22) is amended to read as follows:

23. a. [Any] Except as provided in subsection b. of this section, any employer who willfully hinders or delays the commissioner, the director or their authorized representatives in the performance of his duties in the enforcement of this act, 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, the director or their authorized representatives 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, the director or their authorized representatives upon demand, or pays or agrees to pay wages at a rate less than the rate applicable under this act or any wage order issued pursuant thereto, 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 for a first violation, be punished by a fine of not less than $100 nor more than $1,000 or by imprisonment for not less than 10 nor more than 90 days or by both the fine and imprisonment and, upon conviction for a second or subsequent violation, be punished by a fine of not less than $500 nor more than $1,000 or by imprisonment for not less than 10 nor more than 100 days or by both the fine and imprisonment. Each week, in any day of which an employee is paid less than the rate applicable to him under this act or under a minimum fair wage order, and each employee so paid, shall constitute a separate offense.

b. Any employer who purposely or knowingly pays employees at a rate less than the rate required pursuant to P.L.1966, c.113 (C.34:11-56a et seq.), or who purposely or knowingly entirely fails to pay wages to the employees, is guilty of theft and subject to the provisions of Title 2C of the New Jersey Statutes regarding theft, including, but not limited to, the provisions of N.J.S.2C:43-3, 2C:43-4, 2C:43-6, and 2C:44-1. If the total amount of unpaid wages owed to all employees of the employer is $75,000 or more, the employer shall be guilty of a crime of the second degree. If the amount of unpaid wages owed to the employees exceeds $500 but is less than $75,000, the employer is guilty of a crime of the third
degree. If the amount of unpaid wages owed to the employees is $200 or more but is not more than $500, the employer is guilty of a crime of the fourth degree. If the amount of unpaid wages owed to the employees is less than $200, the employer is guilty of a disorderly persons offense. For the purpose of this subsection, "purposely" and "knowingly" have the same meanings as are provided in subsection b. of N.J.S.2C:2-2. If the Commissioner of Labor finds that the employer has purposely or knowingly paid employees at a rate less than the rate required pursuant to P.L.1966, c.113 (C.34:11-56a et seq.) or has purposely or knowingly entirely failed to pay wages to the employees, the commissioner may refer the case to the office of the Attorney General for further investigation and prosecution.

c. As an alternative to or in addition to any other sanctions provided by law for violations of the "New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11-56a et seq.), when the Commissioner of Labor finds that an individual has violated that act, the commissioner is authorized to assess and collect administrative penalties, up to a maximum of $250 for a first violation and up to a maximum of $500 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" (N.J.S.2A:58-1 et seq.)] 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.

(cf: P.L.1991, c.205, s.5)

2. This act shall take effect immediately.

STATEMENT

This bill provides that any employer who purposely or knowingly pays employees at a rate less than the rate applicable under the minimum wage law, P.L.1966, c.113 (C.34:11-56a et seq.), or who purposely or knowingly entirely fails to pay wages to the employees, is guilty of theft and subject to the provisions of Title 2C of the New Jersey Statutes regarding theft. The bill provides that if the amount of unpaid wages owed to all of his employees is $75,000 or more, the employer shall be guilty of a crime of the second degree. If the amount of unpaid wages owed exceeds $500 but is less than $75,000, the employer is guilty of a crime of the third degree. If the amount of unpaid wages owed is $200 or more but is not more than $500, the employer is guilty of a crime of the fourth degree. If the amount of unpaid wages owed is less than $200, the employer is guilty of a disorderly persons offense. These thresholds for the grade of crime are identical to those provided for shoplifting and other forms of theft under Title 2C of the New Jersey Statutes.

The bill also specifies other provisions of the criminal code to be applied to cases of paying less than the required minimum wage, including: N.J.S.2C:43-3, fines and restitution to crime victims; N.J.S.2C:43-4, penalties against corporations up to three times as high as otherwise provided; N.J.S.2C:43-6, imprisonment; N.J.S.2C:44-1, aggravating and mitigating factors in determining the amount of imprisonment, fines and restitution.