Bill Text: NJ S2068 | 2018-2019 | Regular Session | Introduced


Bill Title: Provides for licensure and regulation of small business consultants.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced) 2018-03-05 - Introduced in the Senate, Referred to Senate Commerce Committee [S2068 Detail]

Download: New_Jersey-2018-S2068-Introduced.html

SENATE, No. 2068

STATE OF NEW JERSEY

218th LEGISLATURE

 

INTRODUCED MARCH 5, 2018

 


 

Sponsored by:

Senator  ANTHONY R. BUCCO

District 25 (Morris and Somerset)

 

 

 

 

SYNOPSIS

     Provides for licensure and regulation of small business consultants.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning small business consultants and amending and supplementing P.L.1989, c.331.

 

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

 

     1.    Section 1 of P.L.1989, c.331 (C.34:8-43) is amended to read as follows:

     1.    As used in this act:

     "Accepting employment" means that a job seeker has entered into an agreement with an employer which includes:

     (1)  The terms and conditions of employment;

     (2)  The salary or wages and any benefits to be paid to the job seeker as compensation for employment; and

     (3)  The date, time and place employment will commence.

     "A career consulting or outplacement organization" means any person, required to be registered under section 24 of this act, providing or rendering services, with or without related products, in connection with advice, instruction, analysis, recommendation or assistance concerning past, present, or future employment or compensation for an individual's time, labor or effort.

     "Agent" means any individual who performs any function or activity for or on behalf of any person, the purpose of which is to provide services or products to individuals seeking employment, career guidance or counseling, or employment related services or products.

     "Applicant" means any person applying for licensing or registration under this act.

     "Attorney General" means the Attorney General of this State or a designee.

     "Baby sitter" means and includes any individual under 16 years of age, other than a registered nurse or a licensed nurse, entrusted temporarily with the care of children during the absence of their parents, guardians, or individuals standing in loco parentis to them.  This definition shall not include persons regularly employed by agencies, or institutions operated by or under the control or supervision of this State, or any of its political subdivisions, nor any child care facilities operated for the care of children when the facilities are similarly controlled or supervised.

     "Booking agency" means any person who procures, offers, promises, or attempts to procure employment for performing artists, or athletes, not under the jurisdiction of the Athletic Control Board, and who collects a fee for providing those services.

     "Bureau" means the Bureau of Employment and Personnel Services in the Division of Consumer Affairs within the Department of Law and Public Safety created pursuant to section 2 of this act.

     "Career counseling service" means any business that, through its agents or otherwise, procures or represents itself as procuring employment or employment assistance or advertises in any manner the following services for a fee: career counseling; vocational guidance; aptitude, achievement or vocational testing; executive consulting; personnel consulting; career management, evaluation, or planning; the development of resumes and other promotional materials relating to the preparation for employment; or referral services relating to employment or employment qualifications.  A career counseling service shall be licensed as an employment agency pursuant to the provisions of this act.  A career counseling service shall not include career consulting or outplacement organizations required to be registered under section 24 of this act.

     "Chief" means the Chief of the Bureau of Employment and Personnel Services.

     "Consulting firm" means any person required to be registered under section 23 of this act that:

     (1)  Identifies, appraises, refers or recommends individuals to be considered for employment by the employer; and

     (2)  Is compensated for services solely by payments from the employer and is not, in any instance, compensated, directly or indirectly, by an individual who is identified, appraised, referred or recommended.

     "Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety, or his designee.

     "Employer" means a person seeking to obtain individuals to perform services, tasks, or labor for which a salary, wage, or other compensation or benefits are to be paid.

     "Employment agency" means any person who, for a fee, charge or commission:

     (1)   Procures or obtains, or offers, promises or attempts to procure, obtain, or assist in procuring or obtaining employment for a job seeker or employees for an employer; or

     (2)   Supplies job seekers to employers seeking employees on a part-time or temporary assignment basis who has not filed notification with the Attorney General pursuant to the provisions of section 1 of P.L.1981, c.1 (C.56:8-1.1); or

     (3)   Procures, obtains, offers, promises or attempts to procure or obtain employment or engagements for actors, actresses, performing artists, vocalists, musicians or models; or

     (4)   Acts as a placement firm, career counseling service, or resume service; or

     (5)   Acts as a nurses' registry.

     The director shall have the authority to determine, from time to time, that a particular employment agency or career-related service or product, not otherwise expressly subject to the provisions of this act, is subject to whichever requirements of this act he deems appropriate. 

     "Fee, charge or commission" means any payment of money, or promise to pay money to a person in consideration for performance of any service for which licensure or registration is required by this act, or the excess of money received by a person furnishing employment or job seekers over what he has paid for transportation, transfer of baggage or lodging for a job seeker. "Fee, charge or commission" shall also include the difference between the amount of money received by any person who either furnishes job seekers or performers for any entertainment, exhibition or performance, or who furnishes baby sitters for any occasion, and the amount paid by the person to the job seekers, performers or baby sitters.

     "Job listing service" means any person required to be registered under section 25 of this act who, by advertisement or other means, offers to provide job seekers with a list of employers, a list of job openings or a similar publication, or prepares resumes or lists of applicants for distribution to potential employers, where a fee or other valuable consideration is exacted or attempted to be collected, either directly or indirectly.

     "Job seeker" means any individual seeking employment, career guidance or counseling or employment related services or products.

     "Job seeker contingent liability" means a provision in an agreement between an employment agency and a job seeker whereby the job seeker may become liable, in whole or in part, to pay a fee, charge or commission of any amount, directly or indirectly, on account of any service rendered by the employment agency.

     "Just cause for voluntary termination of employment by a job seeker" means and includes, but is not limited to, cases in which material misrepresentations of the terms or conditions of employment have been relied upon by a job seeker who would not have accepted the employment if the grounds for termination were known before acceptance of the employment.

     "License" means a license issued by the director to any person to:

     (1)  Carry on the business of an employment agency; and

     (2)  Perform, as an agent of the agency, any of the functions related to the operation of the agency.

     "Performing artist" means a model, musical, theatrical or other entertainment performer employed or engaged individually or in a group.

     "Person" means any natural person or legal representative, partnership, corporation, company, trust, business entity or association, and any agent, employee, salesperson, partner, officer, director, member, stockholder, associate, trustee or cestuis que trustent thereof.

     "Prepaid computer job matching service" means any person required to be registered under section 25 of this act who is engaged in the business of matching job seekers with employment opportunities, pursuant to an arrangement under which the job seeker is required to pay a fee in advance of, or contemporaneously with, the supplying of the matching, but which does not otherwise involve services for the procurement of employment by the person conducting the service. 

     "Primary location" means an address used for 90 or more calendar days by a person for the conduct of an activity regulated under this act.

     "Principal owner" means any person who, directly or indirectly, holds a beneficial interest or ownership in an applicant or who has the ability to control an applicant.

     "Small business consulting firm" means a person required to be registered pursuant to section 2 of P.L.    , c.   (C.       ) (pending before the Legislature as this bill) that provides support, information, or guidance to assist in the operation, performance, efficiency, or future strategy of a small business or a project or other undertaking of a small business.

     "Temporary employment" means employment in which the duration is fixed as some definite agreed period of time or by the occurrence of some specified event, either of which shall be clearly stated to all parties at the time of referral to the employment.

     "Temporary help service firm" means any person who operates a business which consists of employing individuals directly or indirectly for the purpose of assigning the employed individuals to assist the firm's customers in the handling of the customers' temporary, excess or special work loads, and who, in addition to the payment of wages or salaries to the employed individuals, pays federal social security taxes and State and federal unemployment insurance; carries worker's compensation insurance as required by State law; and sustains responsibility for the actions of the employed individuals while they render services to the firm's customers. A temporary help service firm is required to comply with the provisions of P.L.1960, c.39 (C.56:8-1 et seq.). 

(cf: P.L.1989, c.331, s.1)

 

     2.    (New section)  a.  Every small business consultant and small business consulting firm operating within this State shall, within 60 days following the effective date of this act and annually thereafter, register in writing with the chief on a form prescribed by regulation.

     b.    Each registration form shall state the small business consulting firm's name, and any fictitious or trade name used in its operation, each primary location, including street and street number of the building and place where its business is to be conducted, and the names and residence addresses of its principal owners or officers.

     c.     The director shall establish by rule and collect an annual fee from small business consulting firm registrants, which shall not be more than the fee paid by employment agencies, to be used to the extent necessary to defray expenses incurred by the bureau in the performance of its duties under this section.

     A registered small business consulting firm shall not be required to pay the annual fee required pursuant to this subsection if the firm is required to pay an annual fee as: (1) a licensed employment agency, pursuant to section 9 of P.L.1989, c.331 (C.34:8-50); (2) a registered consulting firm pursuant to section 23 of P.L.1989, c.331 (C.34:8-64); (3) a registered career consulting or outplacement organization pursuant to section 24 of P.L.1989, c.331 (C.34:8-65); or (4) a registered prepaid computer job matching service or job listing service pursuant to section 25 of P.L.1989, c.331 (C.34:8-66).

     d.    Each registered small business consulting firm shall, at the time of its initial registration with the director and annually thereafter, post a bond in the amount of $10,000 with a duly authorized surety company as surety, to be approved by the director.  The bond shall be retained by the chief until 90 days after either the expiration or revocation of the registration.  The director shall promulgate rules and regulations setting forth the terms and conditions of this bond and supply the prospective registrant firm with an approved form.

     e.     Every small business consultant and small business consulting firm registered under this section shall provide each prospective customer desiring its services or products with a written explanation of each service or product it provides or makes available to customers and the price for each service or product which shall be made available to the customer at the time of the signing of any contract for services or products.

     f.     Any customer who signs a contract with any registered small business consulting firm shall have the right to cancel the contract within three calendar days of the time of its signing and, upon the return of any materials provided to the customer by the registered firm, shall be entitled to receive a full refund of any fee, charge, or commission paid by the customer.

     g.    Every registered small business consulting firm shall respond, in writing, within nine calendar days of receipt of any written complaint by a customer, stating the registered firm's position with respect to the complaint.  Copies of a customer's complaint and the response shall be kept in a separate file by the registered firm for a period of one year after the date of the resolution of the complaint, or two years after the date of the complaint, whichever is later.

     h.    If a demand for refund is denied by a registered small business consulting firm and if the denial is found to have been in bad faith or if the registered firm fails to respond to a demand for a refund, a court in an action instituted by a customer shall award damages to the customer in an amount not to exceed $200 in addition to actual damages sustained by the customer, together with reasonable attorneys' fees, filing fees, and reasonable costs of suit.  If the registered firm refuses or is unable to pay the amount awarded by the court, the award may be satisfied out of the registered small business consulting firm's bond.

     i.     Every contract for a small business consultant or a small business consulting firm shall be in writing.  A copy of the contract shall be given to the customer at the time the customer signs the contract.  The contract shall contain all of the following:

     (1)   The name, address, telephone number, e-mail address, and fax number of the firm and the name of the firm's agent.

     (2)   The name and address of the individual signing the contract and the customer to whom the services are to be provided.

     (3)   A description of the services or products to be provided; a statement of when those services or products are to be provided; the term of the contract; and refund provisions, as applicable, if the described services or products are not provided according to the contract.

     (4)   The amount of the fee to be charged to or collected from the customer receiving the services or products or from any other individual, and the date or dates when that fee is required to be paid.

     (5)   The following statements, in at least 10-point bold-faced type:

     "No verbal or written promise or guarantee of the performance of any small business is made or implied under the terms of this contract.

     This organization is registered with the Bureau of Employment and Personnel Services of the State of New Jersey, (current address of the bureau).  Inquiries concerning your contract may be sent to this address."

     (6)   The following statement, in at least 10-point bold-faced type:

                            "YOUR RIGHT TO CANCEL

     You may cancel this contract for services or products, without any penalty or obligation, if notice of cancellation is given, in writing, within three calendar days after you have signed this contract.

     To cancel this contract, just mail or deliver a signed and dated copy of the following cancellation notice or any other written notice of cancellation, or send an e-mail or fax message containing a notice of cancellation, to (name of registrant) at (address of its place of business), not later than midnight of the third calendar day after you signed this contract.

                             CANCELLATION NOTICE

     I hereby cancel this contract.

     Dated: . . . . . . . . . . . . . . . . .

                   . . . . . . . . . . . . . . . . . .

                   Customer's Signature

                   . . . . . . . . . . . . . . . . . .

                   Customer's Name (print)

                   . . . . . . . . . . . . . . . . . .

                   Address"

     (7)   Any further information specified in regulations adopted by the director.

     j.     In addition to any act or practice in violation of P.L.1960, c.39 (C.56:8-1 et seq.), it shall be a violation of this act for any registrant to make, or cause to be made, publish or cause to be published, any false, misleading, or deceptive advertisement or representations concerning the services or products that the registrant provides or offers to provide to a customer.

     k.    The director may refuse to issue, and may revoke, any registration for any failure to comply with, or violation of, the provisions of this section or for any other good cause shown, within the meaning and purpose of this section.  A refusal or revocation shall not be made except upon reasonable notice to, and opportunity to be heard by, the applicant or registrant.  The director, instead of revoking any registration, may suspend the registration for a period of time as shall be determined to be appropriate, or assess a penalty in lieu of suspension, or both, and may issue a new registration notwithstanding the revocation of a prior registration provided that the applicant is found to have become entitled to the new registration. 

     l.     Any person who fails to comply with the provisions of this section or rules and regulations promulgated by the director shall be subject to sections 14 through 22 of P.L.1989, c.331 (C.34:8-55 through C.34:8-63).

 

     3.    (New section)  The Director of the Division of Consumer Affairs in the Department of Law and Public Safety shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations as necessary to effectuate the purposes of this act.

 

     4.    This act shall take effect immediately.

STATEMENT

 

     This bill provides for the licensure and regulation of small business consultants and small business consulting firms, pursuant to P.L.1989, c.331 (C.34:8-43 et seq.).

     Currently, P.L.1989, c.331 provides for the licensure of private employment agencies, and for the registration of consulting firms, career consulting or outplacement organizations, and prepaid computer job matching services.  The Bureau of Employment and Personnel Services in the Division of Consumer Affairs of the Department of Law and Public Safety provides oversight of this regulatory process.

     Under the bill, small business consultants and small business consulting firms are defined to mean those persons who provide support, information, or guidance to assist in the operation, performance, efficiency, or future strategy of a small business or a project or other undertaking of a small business.

     Registrations are to be issued for one-year periods to registrants and the fees for registration shall not be more than the fee paid by employment agencies ($250 under current law), to be used to the extent necessary to defray expenses incurred by the bureau in the performance of its duties.  Each small business consultant and small business consulting firm must post a $10,000 bond in order to qualify as a registrant.  Furthermore, every registrant must provide each prospective customer with a written explanation of each service or product which it provides or makes available to customers and the price for each service or product which would be made available to the customer at the time of the signing of any contract for services or products.

     The bill establishes standards of conduct for registrants including notice, contract, and disclosure requirements.  Every contract for small business consultants and small business consulting firms would be in writing and any customer who signs a contract with any registered firm would have the right to cancel the contract within three calendar days of the time of its signing and, upon the return of any materials provided to the customer by the registered firm, would be entitled to receive a full refund of any fee, charge, or commission paid by the customer.

     The Director of the Division of Consumer Affairs is granted broad enforcement powers under this bill, including investigatory and subpoena powers, and the authority to order the restoration of money or property and to issue cease and desist orders for which civil penalties may be imposed if such orders are violated.  Various remedies are available for violations of the requirements set forth in the bill, including: refusal to issue or revocation of any registration; a penalty in lieu of, or in addition to, suspension; action by the Superior Court for, including but not limited to, contempt, injunctive relief and payment of attorneys' fees and costs.  In addition to any other applicable penalty, a civil penalty may be imposed, of not more than $2,000 for the first offense and not more than $5,000 for the second and each subsequent offense.  Also, in addition to any act or practice in violation of the consumer fraud act, P.L.1960, c.39 (C.56:8-1 et seq.), it is a violation of this bill for any registrant, to make, or cause to be made, publish or cause to be published, any false, misleading, or deceptive advertisement or representations concerning the services or products that the registrant provides to customers.

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