Bill Text: NJ A862 | 2016-2017 | Regular Session | Introduced
Bill Title: Concerns enforcement, penalties, and procedures for law regarding failure to pay wages.*
Sponsorship: Partisan Bill (Democrat 3)
Status: (Introduced - Dead) 2016-12-12 - Reported from Assembly Comm. as a Substitute, 2nd Reading [A862 Detail]
Download: New_Jersey-2016-A862-Introduced.html
STATE OF NEW JERSEY
217th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2016 SESSION
Sponsored by:
Assemblywoman ANNETTE QUIJANO
District 20 (Union)
SYNOPSIS
Expands remedies for violations of wage and hour laws.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning remedies for violations of wage and hour laws, revising various parts of the statutory law, and supplementing chapter 11 of Title 34 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 2 of P.L.2009, c.194 (C.34:1A-1.12) is amended to read as follows:
2. a. If the commissioner determines that an employer has failed, for one or more of its employees, to maintain and report every record regarding wages, benefits and taxes which the employer is required to maintain and report pursuant to State wage, benefit and tax laws, as defined in section 1 of this act, and has, in connection with that failure to maintain or report the records, failed to pay wages, benefits, taxes or other contributions or assessments as required by those laws, the commissioner shall, as an alternative to, or in addition to, any other actions taken in the enforcement of those laws, notify the employer of the determination and have an audit of the employer and any successor firm of the employer conducted not more than 12 months after the determination.
b. If, in an audit conducted pursuant to subsection a. of this section, the commissioner determines that the employer or any successor firm to the employer has continued in its failure to maintain or report records as required by those laws and continued in its failure to pay wages, benefits, taxes or other contributions or assessments as required by those laws, the commissioner:
(1) May, 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.), issue a written determination directing any appropriate agency to suspend any one or more licenses that are held by 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 maintain or report required records and pay required wages, benefits, taxes or other contributions or assessments;
(b) The total amount of wages, benefits, taxes or other contributions or assessments not paid by the employer or successor firm;
(c) Any other harm resulting from the violation;
(d) Whether the employer or successor firm made good faith efforts to comply with any applicable requirements;
(e) The duration of the violation;
(f) The role of the directors, officers or principals of the employer or successor firm in the violation;
(g) Any prior misconduct by the employer or successor firm; and
(h) Any other factors the commissioner considers relevant; and
(2) Shall conduct a subsequent audit or inspection of the employer or any successor firm of the employer not more than 12 months after the date of the commissioner's written determination.
c. If, in the subsequent audit or inspection conducted pursuant to subsection b. of this section, the commissioner determines that the employer or successor firm has continued in its failure to maintain or report records as required pursuant to State wage, benefit and tax laws, as defined in section 1 of this act, and continued in its failure to pay wages, benefits, taxes or other contributions or assessments as required by those laws, 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 any appropriate agency to permanently revoke any one or more licenses that are held by the employer or any successor firm to the employer and that are necessary to operate the employer or successor firm.
d. 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.
e. In instances where an employee leasing company has entered into an employee leasing agreement with a client company pursuant to P.L.2001, c.260 (C.34:8-67 et seq.), any written determination by the commissioner directing agencies to suspend an employer license pursuant to subsection b. of this section, or revoke an employer license pursuant to subsection c. of this section, for a failure or continued failure to keep records regarding, and to pay, wages, benefits and taxes pursuant to State wage, benefit and tax laws, shall be for the suspension or revocation of the licenses of the client company and not the licenses of the employee leasing company if the commissioner determines that the failure or continued failure was caused by incomplete, inaccurate, misleading, or false information provided to the employee leasing company by the client company. Nothing in this subsection shall be construed as diminishing or limiting the authority or obligation of the commissioner to rescind the registration of an employee leasing company pursuant to the provisions of section 10 of P.L.2001, c.260 (C.34:8-76).
f. If, in the course of an audit or inspection conducted pursuant to subsections b. and c. of this section, the commissioner discovers that an employee of the employer or any successor firm of the employer has failed to provide compensation to the employee as required under any State wage, benefit and tax laws, then the commissioner shall initiate a wage claim on behalf of the employee pursuant to R.S.34:11-58.
(cf: P.L.2009, c.194, s.2)
2. R.S.34:11-57 is amended to read as follows:
34:11-57. As used in this article:
"Commissioner" means the Commissioner of Labor and Industry or any person or persons in the department designated in writing by him for the purposes of this article.
"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, low wage workers, or any other type of employee.
"Employee" means any natural person who works for another for hire.
"Employer" means any person, partnership, firm or corporation employing another for hire, or any employee leasing company that enters into an employee leasing agreement with, and assigns employees to, an employer pursuant to P.L.2001, c.260 (C.34:8-67 et seq.).
"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.
"State wage and hour laws" means the "New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11-56a et seq.), and articles 1 and 3 of chapter 11 of Title 34 of the Revised Statutes (R.S.34:11-2 et al. and R.S.34:11-57 et al., respectively).
"Wages" means any moneys due an employee from the employer whether payable by the hour, day, week, semimonthly, monthly or yearly and shall include commissions, bonus, piecework compensation and any other benefits arising out of an employment contract.
(cf: P.L.1964, c.92, s.1)
3. R.S.34:11-58 is amended to read as follows:
34:11-58. a. An employee may file a claim for wages against an employer for wages owed related to work performed up to six years prior to the date the claim for wages is filed.
b. An employer found to owe an employee wages shall pay the employee the wages owed plus liquidated damages equal to 200 percent of the wages owed, exclusive of any costs or fees.
c. The commissioner is authorized and empowered to investigate any claim for wages due an employee and in such investigation may summon the defendant, subpoena witnesses, administer oaths, take testimony and shall upon such proceeding make a decision or award when the sum in controversy, exclusive of costs, does not exceed [$30,000.00] $50,000.
Such decision or award shall be a judgment when a certified copy thereof is filed with the Superior Court.
Such judgment shall be entered in the same manner and have the same effect and be subject to the same proceedings as are judgments rendered in suits duly heard and determined by courts of competent jurisdiction.
d. Upon an investigation of a wage claim initiated pursuant to this section, if an employer fails to provide sufficient employee records, as required to be kept under any State wage and hour laws, there shall be a rebuttable presumption that the employee worked for the employer for the period of time and for the amount of wages as alleged in the wage claim.
f. The commissioner is authorized to supervise the payment of amounts, including liquidated damages, due to employees under an award made pursuant to this section, and the employer may be required to make these payments to the commissioner to be held in a special account in trust for the employees, and paid on order of the commissioner directly to the employee or employees affected. The employer shall also pay the commissioner an administrative fee equal to not less than 10% or more than 25% of any payment made to the commissioner pursuant to this section. The amount of the administrative fee shall be specified in a schedule of fees to be promulgated by rule or regulation of the commissioner in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). The fee shall be applied to enforcement and administration costs of the Division of Workplace Standards in the Department of Labor and Workforce Development.
g. A wage claim shall receive priority by the commissioner if a community-based organization or legal services organization, as defined in R.S.34:11-57, has provided professional services to assist the employee in filing the wage claim.
h. A community-based organization or legal services organization that provides professional services to investigate, prepare, or represent an employee that files a wage claim may seek costs and reasonable attorney's fees as part of a judgment against an employer, regardless of whether the professional services are provided by an attorney. The commissioner is authorized to supervise these payments and the employer may be required to make these payments to the commissioner to be held in a special account in trust for the community-based organization or legal services organization, and paid on order of the commissioner directly to the appropriate organization.
i. Upon issuing a decision finding wages due to an employee in an amount equal to or greater than $5,000, the commissioner shall inform the employer of the commissioner's intention to conduct an audit of the employer or any successor firm of the employer pursuant to section 2 of P.L.2009, c.194 (C.34:1A-1.12).
j. Upon issuing a decision finding wages due to an employee in an amount equal to or greater than $5,000, the commissioner shall notify the Division of Taxation in the Department of the Treasury of the decision and recommend that the division conduct an audit of the employer to ensure the proper withholding and payment of payroll and other taxes by the employer.
(cf: P.L.2006, c.25, s.1)
4. (New section) For the purpose of supporting the enforcement and administration of wage claims and wage collections, the department 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 State wage and hour laws, and the process by which an individual may file a complaint under those laws;
b. contract with community-based organizations and legal services organizations to investigate, prepare, and if necessary, represent employees that file complaints under State wage and hour laws; and
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) a. The commissioner shall submit a report biannually to the Legislature on the effectiveness and efficiency of the department's enforcement and administration of wage claims and wage collections. The report shall include, but not be limited to:
(1) the number, nature, and details of wage claims, investigations, findings, penalties, and business license suspensions and revocations;
(2) an enumeration and description of all community-based and legal services organizations contracted by the department; and
(3) recommendations for increasing the effectiveness and efficiency of the department's enforcement efforts.
b. The commissioner shall publish biannually, in a prominent place on a website maintained by the department, a report providing the following details on each wage claim filed in the previous 12 month period:
(1) the name and address of the employer;
(2) the nature of the allegations against the employer;
(3) the status of the claim; and
(4) any findings, penalties, and business license suspensions or revocations that resulted from the wage claim.
6. This act shall take effect immediately.
STATEMENT
This bill assists workers aggrieved by violations of State wage and hour laws by expanding the enforcement provisions available to the Commissioner of Labor and Workforce Development and the remedies available to aggrieved workers.
The bill permits a worker to file a claim for wages owed to the worker related to work performed up to six years prior to the filing of a claim for wages. An employer that is found to owe wages to a worker, as alleged in claim for wages, must pay the employee the wages owed plus liquidated damages equal to 200 percent of the wages owed.
The bill provides that, upon an investigation of a wage claim, if an employer fails to provide sufficient employee records, as required to be kept under any State wage and hour laws, there is a rebuttable presumption that the employee worked for the employer for the period of time and for the amount of wages as alleged in the wage claim.
The bill directs the commissioner to provide priority to a wage claim that is filed with assistance from a community-based or legal services organization. A community-based or legal services organization that provides professional services to investigate, prepare, or represent a worker that files a wage claim may seek costs and reasonable attorney's fees as part of a judgment against an employer, regardless of whether the professional services are provided by an attorney.
Upon issuing a decision finding wages due to a worker in an amount equal to or greater than $5,000, the commissioner must inform the employer of the commissioner's intention to conduct an audit of the employer or any successor firm of the employer pursuant to N.J.S.A.34:1A-1.12, and the commissioner must notify the Division of Taxation in the Department of the Treasury of the decision and recommend that the division conduct an audit of the employer to ensure the proper withholding and payment of payroll and other taxes by the employer.
The bill directs the Department of Labor and Workforce Development to contract with community-based and legal service organizations to disseminate information to workers and assist workers aggrieved by violations of State wage and hour laws. Finally, the commissioner must submit a report biannually to the Legislature on the effectiveness and efficiency of the department's enforcement and administration of wage claims and wage collections.
