Bill Text: NJ S3126 | 2020-2021 | Regular Session | Introduced
Bill Title: The "Farm Labor Equality Act."
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-11-05 - Introduced in the Senate, Referred to Senate Labor Committee [S3126 Detail]
Download: New_Jersey-2020-S3126-Introduced.html
Sponsored by:
Senator NILSA CRUZ-PEREZ
District 5 (Camden and Gloucester)
SYNOPSIS
The "Farm Labor Equality Act."
CURRENT VERSION OF TEXT
As introduced.
An Act concerning conditions of employment for farmworkers, revising various portions of the statutory law, and supplementing Title 34 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 7 of P.L.1940, c. 153 (C.34:2-21.7) is amended to read as follows:
7. (a) Except as permitted under section 15 of this act, no minor under 18 years of age shall be employed, permitted, or suffered to work in, about, or in connection with any gainful occupation, unless and until the person employing such minor shall procure and keep on file an employment certificate or special permit for such minor, issued by the issuing officer of the school district in which the child resides, or of the district in which the child has obtained a promise of employment if the child is a nonresident of the State; provided, that:
(1) [No certificate or special permit shall be required for any child 16 years of age or over employed in agricultural pursuits] (deleted by amendment; P.L. , c. )(now pending before the Legislature as this bill);
(2) No certificate or special permit shall be required for any child 14 years of age or over employed at such times as the schools of his district are not in session, at any agricultural fair, horse, dog, or farm show the duration of which does not exceed 10 days; and
(3) No vacation certificate shall be required in the first 14 days of employment for any minor 15 years of age or over employed in seasonal amusement, food service, restaurant or retail occupations, at such times as the schools of his district are not in session, provided that no minor under 16 years of age shall be permitted to operate, or service, or to work in, about, or in connection with power-driven machinery.
(b) The employment covered under this section shall not require or involve work in, about, or in connection with employments prohibited by P.L. 1970, c. 115 (C. 34:2-21.15) and P.L. 1973, c. 204 (C. 34:2-21.17) of the child labor laws.
(c) Such certificate or special permit shall be issued in triplicate in such form and in accordance with such instructions as may be prescribed by the Commissioner of Education. The Commissioner of Education shall supply to the issuing officers all blank forms to be used in connection with the issuance of such certificates, and special permits as provided for in section 15 of this act.
(d) Employment certificates shall be of two kinds, regular certificates permitting employment during school hours, and vacation certificates permitting employment during the school vacation and during the school term at such times as the public schools are not in session.
(e) The original copy of the employment certificate shall be mailed by the issuing officer to the prospective employer of the minor for whom it is issued; a duplicate copy shall be mailed to the Department of Labor in Trenton as provided in section 12 of this act, and a triplicate copy shall be kept in the files of the issuing officer. The issuing officer may refuse to grant a certificate, if in his judgment, the best interests of the minor would be served by such refusal and he shall keep a record of such refusals, and the reasons therefor.
(cf: P.L.1987, c.125)
2. Section 15 of P.L.1940, c. 153 (C.34:2-21.15) is amended to read as follows:
15. Except as hereinafter provided as to newspaper carriers, no minor under 14 years of age may engage in any street trade, which term, for the purpose of this section shall include the selling, offering for sale, soliciting for, collecting for, displaying, or distributing any articles, goods, merchandise, commercial service, posters, circulars, newspapers or magazines or in blacking shoes on any street or other public place or from house to house. [No] Until December 31, 2020, no minor under 12 years of age may be employed in agricultural pursuits. After December 31, 2020, no minor under 14 years of age may be employed in agricultural pursuits, and minors under 18 years of age shall be subject to the provisions of section 3 of P.L.1940, c.153 (C.34:2-21.3).
Whenever a minor has graduated from vocational school, approved by the Commissioner of Education and is 17 years of age, the minor's diploma or certified copy thereof and an employment certificate mailed to the employer by the issuing officer shall be deemed a special permit to engage in those pursuits in which the minor majored in said vocational school during those hours permitted for persons 18 years of age and over.
Except as hereinafter provided as to newspaper carriers, whenever a minor under 16 years of age desires to work during such times as the schools of the district in which the minor resides are not in session in any street trade or in agricultural pursuits, the parent, guardian or other person having the custody and control of the minor may file with the issuing officer in the school district in which the minor resides an application for a special permit authorizing such work. Such application shall show the exact character of the work the minor is to do, and the hours and wages and special conditions under which said work is to be performed.
If upon investigation it is found that the facts set forth in the application are true and that the work will not interfere with the minor's health or standing in school, the issuing officer shall, upon presentation to the issuing officer of the same proof of age as is required for the issuance of an employment certificate, issue a special permit, allowing the minor to work at such times as the public schools in the district are not in session, but such work except in agricultural pursuits, and as newspaper carriers, to be otherwise subject to the maximum hours of labor provisions set for minors under 16 years of age in section 3 of this act; provided, that nothing in this act shall prevent newspaper carriers as defined in this act, between 11 and 14 years of age, from delivering, soliciting, selling and collecting for newspapers on routes in residential neighborhoods between the hours of 6:00 o'clock in the morning and 7:00 o'clock in the evening of any day; and newspaper carriers 14 years of age and older from delivering, soliciting, selling and collecting for newspapers on routes in residential neighborhoods between the hours of 5:30 o'clock in the morning and 8:00 o'clock in the evening of any day; and provided further that no newspaper carrier under the age of 18 years shall be permitted to engage in such occupation beyond the period of time wherein the combined hours devoted to said occupation as a newspaper carrier and the hours in school shall exceed a total of 40 hours per week and not more than 8 hours in any 1 day; and provided, further, that, prior to January 1, 2021, minors engaged in agricultural pursuits may be employed no more than 10 hours per day, and, after December 31, 2020, minors engaged in agricultural pursuits shall be subject to the limits in the number of hours they may be employed stipulated in the provisions of section 3 of P.L.1940, c.153 (C.34:2-21.3).
Such special permit shall show the name, address, and date of birth of the minor for whom it is issued, the kind of proof of age submitted, the nature of the occupation in which the minor is to engage, and such other information as the commissioner of Education may require.
Any such special permit for work in agriculture shall be issued for a period not to exceed 6 months and shall show its date of expiration. Any person employing a minor under 16 years of age in agriculture shall obtain such a certificate from the minor and keep it on file during the period of the minor's employment and shall return it to the minor to whom it is issued upon termination of the minor's employment.
Upon application by the parent, guardian or other person having custody and control of a newspaper carrier as defined in this act, between the ages of 11 and 18 years of age, to the publisher of any newspaper in this State and upon receiving satisfactory proof of age and a signed statement of physical fitness, such publisher may issue to such newspaper carrier a special permit on a form prescribed and approved by the Commissioner of Education, whereby the newspaper carrier shall be permitted to deliver, solicit, sell and collect for newspapers outside of the newspaper carrier's school hours on residential routes, and on Sundays and during school vacations and no other employment certificate shall be required.
Such special permit shall show the name, address and date of birth of the newspaper carrier for whom it is issued, and such other information as the Commissioner of Education may require.
The publisher shall forthwith mail 3 copies of such special permit to the issuing officer as defined in section 1 of this act, one of which copies shall be forwarded to the Commissioner of Education and one copy to the Commissioner of Labor and Industry in such manner as may be provided by regulation of said commissioners. A copy of such special permit shall also be furnished by the publisher to the parent, guardian or other person having custody and control of the newspaper carrier and the publisher shall retain at all times a file copy thereof.
The special permit shall remain in full force and effect unless and until the publisher has knowledge of or is notified by the issuing officer or the Commissioner of Labor and Industry that the newspaper carrier is not physically fit or that in the opinion of the issuing officer or the Commissioner of Labor and Industry, engaging in the occupation as a newspaper carrier will be harmful to the newspaper carrier's education. In such case, the said special permit shall be suspended unless and until the issuing officer shall revoke said notification. In the event of such notification and suspension, however, if either the parent, guardian or other person having custody and control of the newspaper carrier or the publisher shall deem such decision to be erroneous, an appeal may be made to the Commissioner of Education who shall have authority to affirm, reverse or modify such decision of the issuing officer or the Commissioner of Labor and Industry.
The publisher shall keep a record of the name, address and birth date of each newspaper carrier to whom such special permit is issued; the date said newspaper carrier commenced and ceased delivering newspapers published by said publisher together with a record of the number of newspapers sold to each newspaper carrier and a general description of the area of the route served by each newspaper carrier. Such records shall be kept on file by said publisher for a period of 2 years after the newspaper carrier has ceased delivering newspapers published by said publisher.
The special permit shall remain in full force and effect unless and until the publisher is notified by the issuing officer or the Commissioner of Labor and Industry that the newspaper carrier is not physically fit or that the newspaper carrier's school record is such that engaging in the occupation of a newspaper carrier will be harmful to the newspaper carrier's education. In such case, however, if either the parent, guardian or other person having custody and control of the newspaper carrier or the publisher shall deem such decision to be erroneous, an appeal may be made to the Commissioner of Education who shall have authority to reverse or modify such decision of the issuing officer or the Commissioner of Labor and Industry.
(cf: P.L.1981, c.490)
3. Section 5 of P.L. 1966, c.113 (C.34:11-56a4) is amended to read as follows:
5. a. Except as provided in subsections c., d., e. and g. of this section, each employer shall pay to each of his employees wages at a rate of not less than $8.85 per hour as of January 1, 2019 and, on January 1 of 2020 and January 1 of each subsequent year, the minimum wage shall be increased by any increase in the consumer price index for all urban wage earners and clerical workers (CPI-W) as calculated by the federal government for the 12 months prior to the September 30 preceding that January 1, except that any of the following rates shall apply if it exceeds the rate determined in accordance with the applicable increase in the CPI-W for the indicated year: on July 1, 2019, the minimum wage shall be $10.00 per hour; on January 1, 2020, the minimum wage shall be $11.00 per hour; and on January 1 of each year from 2021 to 2024, inclusive, the minimum wage shall be increased from the rate of the preceding year by $1.00 per hour. If the federal minimum hourly wage rate set by section 6 of the federal "Fair Labor Standards Act of 1938" (29 U.S.C. s.206), or a successor federal law, is raised to a level higher than the State minimum wage rate set by this subsection, then the State minimum wage rate shall be increased to the level of the federal minimum wage rate and subsequent increases based on increases in the CPI-W pursuant to this section shall be applied to the higher minimum wage rate. If an applicable wage order has been issued by the commissioner under section 17 (C.34:11-56a16) of this act, the employer shall also pay not less than the wages prescribed in said order. The wage rates fixed in this section shall not be applicable to part-time employees primarily engaged in the care and tending of children in the home of the employer, to persons under the age of 18 not possessing a special vocational school graduate permit issued pursuant to section 15 of P.L.1940, c.153 (C.34:2-21.15), or to persons employed as salesmen of motor vehicles, or to persons employed as outside salesmen as such terms shall be defined and delimited in regulations adopted by the commissioner, or to persons employed in a volunteer capacity and receiving only incidental benefits at a county or other agricultural fair by a nonprofit or religious corporation or a nonprofit or religious association which conducts or participates in that fair.
b. (1) An employer shall also pay each employee not less than 1 1/2 times such employee's regular hourly rate for each hour of working time in excess of 40 hours in any week, except that this overtime rate shall not apply: to any individual employed in a bona fide executive, administrative, or professional capacity; or to employees, prior to January 1, 2021, engaged to labor on a farm; or employees employed in a hotel; or to an employee of a common carrier of passengers by motor bus; or to a limousine driver who is an employee of an employer engaged in the business of operating limousines; or to employees engaged in labor relative to the raising or care of livestock. On or after January 1, 2021, this overtime rate shall apply to employees engaged to labor on a farm.
(2) Employees engaged on a piece-rate or regular hourly rate basis to labor on a farm shall be paid for each day worked not less than the applicable minimum hourly wage rate multiplied by the total number of hours worked.
(3) Full-time students may be employed by the college or university at which they are enrolled at not less than 85% of the effective applicable minimum wage rate.
c. Employees of a small employer, and employees who are engaged in seasonal employment, except for employees who customarily and regularly receive gratuities or tips who shall be subject to the provisions of subsections a. and d. of this section, shall be paid $8.85 per hour as of January 1, 2019 and, on January 1 of 2020 and January 1 of each subsequent year, that minimum wage rate shall be increased by any increase in the consumer price index for all urban wage earners and clerical workers (CPI-W) as calculated by the federal government for the 12 months prior to the September 30 preceding that January 1, except that any of the following rates shall apply if it exceeds the rate determined in accordance with the applicable increase in the CPI-W for the indicated year: on January 1, 2020, the minimum wage shall be $10.30 per hour; and on January 1 of each year from 2021 to 2025, inclusive, the minimum wage shall be increased from the rate of the preceding year by eighty cents per hour, and, in 2026, the minimum wage shall be increased from the rate of the preceding year by seventy cents per hour, and, in each year from 2027 to 2028 inclusive, the minimum wage for employees subject to this subsection c. shall be increased by the same amount as the increase for employees subject to subsection a. of this section based on CPI-W increases, plus one half of the difference between $15.00 per hour and the minimum wage in effect in 2026 for employees pursuant to subsection a. of this section, so that, by 2028, the minimum wage for employees subject to this subsection shall be the same as the minimum wage in effect for employees subject to subsection a. of this section. If the federal minimum hourly wage rate set by section 6 of the federal "Fair Labor Standards Act of 1938" (29 U.S.C. s.206), or a successor federal law, is raised to a level higher than the State minimum wage rate set by this subsection, then the State minimum wage rate shall be increased to the level of the federal minimum wage rate and subsequent increases based on increases in the CPI-W pursuant to this subsection shall be applied to the higher minimum wage rate.
d. Employees engaged on a piece-rate or regular hourly rate basis to labor on a farm shall be paid $8.85 per hour as of January 1, 2019 and, on January 1 of 2020 and January 1 of each subsequent year, that minimum wage rate shall be increased by any increase in the consumer price index for all urban wage earners and clerical workers (CPI-W) as calculated by the federal government for the 12 months prior to the September 30 preceding that January 1, except that any of the following rates shall apply if it exceeds the rate determined in accordance with the applicable increase in the CPI-W for the indicated year:
(1) on January 1, 2020, the minimum wage shall be $10.30 per hour; on January 1, 2022, the minimum wage shall be $10.90 per hour; and on January 1 of each year from 2023 to 2024, inclusive, the minimum wage shall be increased from the rate of the preceding year by eighty cents per hour; and
(2) subject to the provisions of paragraph (3) of this subsection d., minimum wage rates shall be increased as follows: on January 1 of 2025, the minimum wage shall be increased to $13.40, and on January 1 of each year from 2026 to 2027, inclusive, the minimum wage shall be increased from the rate of the preceding year by eighty cents per hour, and, in each year from 2028 to 2030 inclusive, the minimum wage for employees subject to this subsection d. shall be increased during that year by the same amount as the increase in that year for employees subject to subsection a. of this section based on CPI-W increases, plus one third of the difference between $15.00 per hour and the minimum wage in effect in 2027 for employees pursuant to subsection a. of this section, so that, by 2030, the minimum wage for employees subject to this subsection shall be the same as the minimum wage in effect for employees subject to subsection a. of this section.
(3) Not later than March 31, 2024, the commissioner and the Secretary of Agriculture shall review the report issued by the commissioner pursuant to subsection b. of section 4 of P.L.2019, c.32 (C.34:11-56a4.10) and shall consider any information provided by the secretary regarding the impact on farm employers and the viability of the State's agricultural industry of the increases of the minimum wage made pursuant to paragraph (1) of this subsection, and the potential impact of the increases which would be set by paragraph (2) of this subsection, including comparisons with the wage rates in the agricultural industries in other states, and shall recommend: approval of the increases set forth in paragraph (2) of this subsection; disapproval of the increases set forth in paragraph (2) of this subsection; or an alternative manner of changing the minimum wage after 2024 for employees engaged on a piece-rate or regular hourly rate basis to labor on a farm. In contemplation of the possibility that the commissioner and the secretary are unable to agree on the recommendation required by this paragraph, by December 31, 2021, the Governor shall appoint a public member subject to advice and consent by the Senate, who will serve as a tie-breaking member if needed. The increases set forth in paragraph (2) of this subsection shall take effect unless there is a recommendation pursuant to this paragraph to disapprove the increases or for an alternative manner of changing the minimum wage after 2024 for employees engaged on a piece-rate or regular hourly rate basis to labor on a farm and the Legislature, not later than June 30, 2024, enacts a concurrent resolution approving the implementation of that recommendation. Beginning in 2024, the commissioner, secretary, and public member shall meet biennially to make either a one or two year recommendation to the Legislature for implementation by way of concurrent resolution.
(4) If the federal minimum hourly wage rate set by section 6 of the federal "Fair Labor Standards Act of 1938" (29 U.S.C. s.206), or a successor federal law, is raised to a level higher than the State minimum wage rate set by this subsection, then the State minimum wage rate shall be increased to the level of the federal minimum wage rate and subsequent increases based on increases in the CPI-W pursuant to this subsection shall be applied to the higher minimum wage rate.
e. With respect to an employee who customarily and regularly receives gratuities or tips, every employer is entitled to a credit for the gratuities or tips received by the employee against the hourly wage rate that would otherwise be paid to the employee pursuant to subsection a. of this section of the following amounts: after December 31, 2018 and before July 1, 2019, $6.72 per hour; after June 30, 2019 and before January 1, 2020, $7.37 per hour; during calendar years 2020, 2021 and 2022, $7.87 per hour; during calendar year 2023, $8.87 per hour; and during calendar year 2024 and subsequent calendar years, $9.87 per hour.
f. Notwithstanding the provisions of this section to the contrary, every trucking industry employer shall pay to all drivers, helpers, loaders and mechanics for whom the Secretary of Transportation may prescribe maximum hours of work for the safe operation of vehicles, pursuant to section 31502(b) of the federal Motor Carrier Act, 49 U.S.C.s.31502(b), an overtime rate not less than 1 1/2 times the minimum wage required pursuant to this section and N.J.A.C. 12:56-3.1. Employees engaged in the trucking industry shall be paid no less than the minimum wage rate as provided in this section and N.J.A.C. 12:56-3.1. As used in this section, "trucking industry employer" means any business or establishment primarily operating for the purpose of conveying property from one place to another by road or highway, including the storage and warehousing of goods and property. Such an employer shall also be subject to the jurisdiction of the Secretary of Transportation pursuant to the federal Motor Carrier Act, 49 U.S.C.s.31501 et seq., whose employees are exempt under section 213(b)(1) of the federal "Fair Labor Standards Act of 1938," 29 U.S.C. s.213(b)(1), which provides an exemption to employees regulated by section 207 of the federal "Fair Labor Standards Act of 1938," 29 U.S.C. s.207, and the Interstate Commerce Act, 49 U.S.C. s.501 et al.
g. Commencing on January 1, 2020, a training wage of not less than 90 percent of the minimum wage rate otherwise set pursuant to subsection a. of this section may be paid to an employee who is enrolled in an established employer on-the-job or other training program which meets standards set by regulations adopted by the commissioner. The period during which an employer may pay the training wage to the employee shall be the first 120 hours of work after hiring the employee in employment in an occupation in which the employee has no previous similar or related experience. An employer shall not utilize any employee paid the training wage in a manner which causes, induces, encourages or assists any displacement or partial displacement of any currently employed worker, including any previous recipient of the training wage, by reducing hours of a currently employed worker, replacing a current or laid off employee with a trainee, or by relocating operations resulting in a loss of employment at a previous workplace, or in a manner which replaces, supplants, competes with or duplicates any approved apprenticeship program. An employer who pays an employee a training wage shall make a good faith effort to continue to employ the employee after the period of the training wage expires and shall not hire the employee at the training wage unless there is a reasonable expectation that there will be regular employment, paying at or above the effective minimum wage, for the trainee upon the successful completion of the period of the training wage. If the commissioner determines that an employer has made repeated, knowing violations of the provisions of this subsection regarding the payment of a training wage, the commissioner shall suspend the employer's right to pay a training wage for a period set pursuant to regulations adopted by the commissioner, but not less than three years.
h. The provisions of this section shall not be construed as prohibiting any political subdivision of the State from adopting an ordinance, resolution, regulation or rule, or entering into any agreement, establishing any standard for vendors, contractors and subcontractors of the subdivision regarding wage rates or overtime compensation which is higher than the standards provided for in this section, and no provision of any other State or federal law establishing a minimum standard regarding wages or other terms and conditions of employment shall be construed as preventing a political subdivision of the State from adopting an ordinance, resolution, regulation or rule, or entering into any agreement, establishing a standard for vendors, contractors and subcontractors of the subdivision which is higher than the State or federal law or which otherwise provides greater protections or rights to employees of the vendors, contractors and subcontractors of the subdivision, unless the State or federal law expressly prohibits the subdivision from adopting the ordinance, resolution, regulation or rule, or entering into the agreement.
(cf: P.L.2019, c.32, s.2)
4. Section 5 of P.L.1968, c.303 (C.34:13A-5.1) is amended to read as follows:
5. There is hereby established a Division of Public Employment Relations and a Division of Private Employment Dispute Settlement.
(a) The Division of Public Employment Relations shall be concerned exclusively with matters of public employment related to determining negotiating units, elections, certifications and settlement of public employee representative and public employer disputes and grievance procedures. For the purpose of complying with the provisions of Article V, Section IV, paragraph 1 of the New Jersey Constitution, the Division of Public Employment Relations is hereby allocated within the Department of Labor and Workforce Development, and located in the city of Trenton, but notwithstanding said allocation, the office shall be independent of any supervision or control by the department or by any board or officer thereof.
(b) The Division of Private Employment Dispute Settlement shall assist the New Jersey State Board of Mediation in the resolution of disputes in private employment. The New Jersey State Board of Mediation, its objectives and the powers and duties granted by this act and the act of which this act is amendatory and supplementary shall be concerned exclusively with matters of private employment and the office shall continue to be located in the city of Newark.
(c) In the case of a private employer not regulated by the National Labor Relations Board pursuant to the National Labor Relations Act (29 U.S.C. s.151 et seq.), the New Jersey State Board of Mediation shall designate a representative for a unit of employees of the private employer for the purposes of collective bargaining when:
(1) In any case in which the board determines that there is no current majority representative and only one employee organization is seeking to be the majority representative, that organization demonstrates that a majority of employees in the unit have shown their preference to have that organization be their representative by signing authorization cards indicating that preference; or
(2) The employees in the unit have selected a representative by an election that conforms with the procedures outlined in section 159 of the National Labor Relations Act (29 U.S.C. s.159).
For the purposes of paragraph (1) of this subsection, an authorization card indicating preference shall not be valid unless it is printed in a language understood by the employee who signs it.
An employee organization seeking to be recognized as a majority representative, either by a card authorization procedure pursuant to paragraph (1) of this subsection or by an election pursuant to paragraph (2) of this subsection, is permitted, but not required, to petition the New Jersey State Board of Mediation to require the employer to file, within not more than 48 hours, and in the manner required by the board, a complete and accurate list of the full names, current street addresses, and job classifications of the current employees, and phone numbers or other employee contact information available to the employer, which the board shall immediately convey to the employee organization. Any employer who refuses to provide information requested by the New Jersey State Board of Mediation or otherwise acts to prevent the board from carrying out its responsibilities pursuant to this subsection (c) shall have violated this subsection and shall be liable to a fine of not more than [$1,000] $5,000 for each day that the employer fails to provide a complete response or otherwise prevents the board from carrying out its responsibilities, to be recovered under the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.) in the name of the board and to be used by the board for costs of implementing this subsection. In addition, an employee organization seeking to represent the employees of the employer may institute an action in a court of competent jurisdiction to obtain an injunction to restrain any continuation of the violation, to reimburse the employee organization or any affected employee for any damages caused by the violation plus reasonable costs and attorney's fees of the action.
The provisions of this subsection (c) shall not apply to religious or parochial schools or their employees or to any private nonprofit organization exempt from federal taxation under section 501 of the Internal Revenue Code of 1986 (26 U.S.C. s. 501).
(d) In the case of a private employer regulated by the National Labor Relations Board pursuant to the National Labor Relations Act (29 U.S.C. s. 151 et seq.), the New Jersey State Board of Mediation shall, based on the mutual agreement of the private employer and an organization seeking to represent employees of the employer, designate a representative for a unit of employees of the private employer for the purposes of collective bargaining when:
(1) In any case in which the board determines that only one employee organization is seeking to be the majority representative, that organization demonstrates, in a manner mutually agreed upon by the representative and the employer, that a majority of employees in the unit have shown their preference to have that organization be their representative by signing authorization cards indicating that preference; or
(2) the employees in the unit have selected the representative by an election that conforms with the procedures outlined in section 159 of the National Labor Relations Act (29 U.S.C. s.159).
(e) For the purposes of subsections (c) and (d) of this section, "employee unit" means an appropriate group of employees for the purposes of collective bargaining as determined, if necessary, by the New Jersey State Board of Mediation.
(cf: P.L.2005, c.161, s.1)
5. (New section) a. Agricultural employers and their representatives and agents are prohibited from the following unfair practices:
(1) Interfering with, restraining, or coercing employees in their exercise of rights guaranteed by this act.
(2) Dominating or interfering with the formation, existence or administration of any employee organization, including any violation of the provisions of section 6 of P.L. , c. (C. )(pending before the Legislature as this bill).
(3) Discharging, threatening to discharge, or otherwise discriminating with respect to hire or tenure of employment or any term or condition of employment to encourage or discourage employees from signing or filing an affidavit, petition or complaint or disclosing any information or testimony, or exercising any other rights guaranteed by this act.
(4) Refusing to negotiate in good faith with a majority representative of employees concerning terms and conditions of employment, refusing to process grievances, or refusing to reduce to writing and sign a negotiated agreement.
(5) Violating any regulations adopted by the division.
b. Employee organizations and their representatives and agents are prohibited from the following unfair practices:
(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act.
(2) Interfering with, restraining or coercing an agricultural employer in the selection of the employer's representative for the purposes of negotiations or the adjustment of grievances.
(3) Refusing to negotiate in good faith with an agricultural employer concerning terms and conditions of employment, or refusing to reduce to writing and sign a negotiated agreement.
(4) Violating any regulations adopted by the division.
c. The division shall have exclusive power to prevent anyone from engaging in any unfair practice listed in subsections a. and b. of this section. Whenever it is charged that any party has engaged or is engaging in an unfair practice, the division, or its designated agent, shall have authority to issue and cause to be served upon the party a complaint stating the specific unfair practice charged and including a notice of hearing containing the date and place of hearing before the division or its designated agent, except that no complaint shall be based on an unfair practice occurring more than six months prior to the filing of the charge unless the aggrieved person was prevented from filing the charge, in which event the six-month period shall be computed from the day the person was no longer prevented. If the division determines that any party charged has engaged or is engaging in an unfair practice, the division shall state its findings of fact and conclusions of law and issue and cause to be served on the party an order requiring the party to cease and desist from the unfair practice, and to take reasonable remedial or affirmative action as will effectuate the policies of this act, which shall, in the case of a discharge or other discrimination against any employee for exercising rights guaranteed by this act, include reinstatement to any employment from which the employee was discharged, the payment of any wages lost due to the discrimination, reasonable costs of action, and liquidated damages equal to the wages due. Any case in which a complaint and notice of hearing are issued by the division shall be prosecuted before the division by a representative of the employee organization or other party filing the charge.
d. The division shall have the power to apply to the Appellate Division of the Superior Court for an appropriate order enforcing any order of the division issued pursuant to subsection c. of this section, and its findings of fact, if based upon substantial evidence on the record as a whole, shall not be set aside or modified, and any order for remedial or affirmative action, if reasonably designed to effectuate the provisions of this act, shall be affirmed and enforced.
6. (New section) a. If an employee organization seeking to be a majority representative of employees of an agricultural employer petitions the New Jersey State Board of Mediation to require the employer to provide a list of the current employees with contact information pursuant to section 5 of P.L.1968, c.303 (C.34:13A-5.1), the employer shall, along with providing the list and contact information, provide the employee organization access to the employees. The required access to employees shall include, but not be limited to, permitting representatives of the organization to meet with employees on the premises of the employer during the work day, and permitting representatives of the organization to meet with employees at any employee living quarters under the control of the employer.
b. An agricultural employer shall permit any employee organization which is a majority representative of employees of the employer:
(1) to access the employer's premises to investigate and discuss with the employees grievances, workplace-related complaints, and other workplace issues;
(2) to conduct worksite meetings during non-work breaks, and before and after the workday, to discuss workplace issues, collective negotiations, the administration of collective negotiations agreements, other matters related to the governance, business, and duties of the employee organization; and
(3) to meet with a newly hired employee within five days after hire, without charge to the pay or leave time of the employee.
c. An agricultural employer shall provide the majority representative with timely notification of any new hiring by the employer or change in the contact information of current employees.
d. An agricultural employer shall carry out payroll deductions for membership dues for the majority representative, and payroll deductions for representation fees from non-members, as agreed to in negotiations between the employer and the majority representative, or, if an agreement is not reached, as set by the division.
e. An agricultural employer shall not discourage an employee from joining, forming or assisting an employee organization, or encourage employees to resign or relinquish membership in an employee organization, or revoke authorization of the deduction of dues or fees to an employee organization.
f. An agricultural employer who violates any provision of this section shall be regarded as having engaged in an unfair practice in violation of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill), and, upon a finding that the violation has occurred, the division, in addition to implementing any other remedies authorized by that section, shall order the agricultural employer to make whole the employee organization for any losses suffered by the organization as a result of the violation.
7. (New section) Notwithstanding any law to the contrary, an organization representing agricultural laborers, and its members, representatives, and supporters, shall have the right to engage in publicity, including picketing, for the purpose of truthfully advising the public, including consumers, that products or the ingredients of products are produced by an agricultural employer with which the organization has a dispute, including publicity which has the effect of requesting the public to cease patronizing businesses which distribute or sell those products.
8. (New section) The division, in consultation with the New Jersey State Board of Mediation, shall adopt regulations as needed regarding the conduct of the selection of majority representatives though election or authorization card procedures pursuant to subsection (c) of section 5 of P.L.1968, c.303 (C.34:13A-5.1), procedures for negotiations between majority representatives and agricultural employers, the resolution of grievances, the collection of dues and fees for the majority representatives, and other matters concerning terms and conditions of employment.
9. (New section) For the purposes of sections 2 through 6 of P.L. , c. (C. )(pending before the Legislature as this bill):
"Agricultural employer" means any private employer of agriculture laborers who is not regulated by the National Labor Relations Board pursuant to the National Labor Relations Act (29 U.S.C. s.151 et seq.).
"Division" means the Division of Private Employment Dispute Settlement established pursuant to section 5 of P.L.1968, c.303 (C.34:13A-5.1).
"Majority representative" means an employee organization designated by the State Board of Mediation pursuant to subsection (c) of section 5 of P.L.1968, c.303 (C.34:13A-5.1) to be a representative of a unit of employees of an agricultural employer.
10. (New section) This act shall be known and may be cited as the "Farm Labor Equality Act."
11. R.S.43:21-19 is amended to read as follows:
43:21-19. Definitions. As used in this chapter (R.S.43:21-1 et seq.), unless the context clearly requires otherwise:
(a) (1) "Annual payroll" means the total amount of wages paid during a calendar year (regardless of when earned) by an employer for employment.
(2) "Average annual payroll" means the average of the annual payrolls of any employer for the last three or five preceding calendar years, whichever average is higher, except that any year or years throughout which an employer has had no "annual payroll" because of military service shall be deleted from the reckoning; the "average annual payroll" in such case is to be determined on the basis of the prior three or five calendar years in each of which the employer had an "annual payroll" in the operation of his business, if the employer resumes his business within 12 months after separation, discharge or release from such service, under conditions other than dishonorable, and makes application to have his "average annual payroll" determined on the basis of such deletion within 12 months after he resumes his business; provided, however, that "average annual payroll" solely for the purposes of paragraph (3) of subsection (e) of R.S.43:21-7 means the average of the annual payrolls of any employer on which he paid contributions to the State disability benefits fund for the last three or five preceding calendar years, whichever average is higher; provided further that only those wages be included on which employer contributions have been paid on or before January 31 (or the next succeeding day if such January 31 is a Saturday or Sunday) immediately preceding the beginning of the 12-month period for which the employer's contribution rate is computed.
(b) "Benefits" means the money payments payable to an individual, as provided in this chapter (R.S.43:21-1 et seq.), with respect to his unemployment.
(c) (1) "Base year" with respect to benefit years commencing on or after July 1, 1986, shall mean the first four of the last five completed calendar quarters immediately preceding an individual's benefit year.
With respect to a benefit year commencing on or after July 1, 1995, if an individual does not have sufficient qualifying weeks or wages in his base year to qualify for benefits, the individual shall have the option of designating that his base year shall be the "alternative base year," which means the last four completed calendar quarters immediately preceding the individual's benefit year; except that, with respect to a benefit year commencing on or after October 1, 1995, if the individual also does not have sufficient qualifying weeks or wages in the last four completed calendar quarters immediately preceding his benefit year to qualify for benefits, "alternative base year" means the last three completed calendar quarters immediately preceding his benefit year and, of the calendar quarter in which the benefit year commences, the portion of the quarter which occurs before the commencing of the benefit year.
The division shall inform the individual of his options under this section as amended by P.L.1995, c.234. If information regarding weeks and wages for the calendar quarter or quarters immediately preceding the benefit year is not available to the division from the regular quarterly reports of wage information and the division is not able to obtain the information using other means pursuant to State or federal law, the division may base the determination of eligibility for benefits on the affidavit of an individual with respect to weeks and wages for that calendar quarter. The individual shall furnish payroll documentation, if available, in support of the affidavit. A determination of benefits based on an alternative base year shall be adjusted when the quarterly report of wage information from the employer is received if that information causes a change in the determination.
(2) With respect to a benefit year commencing on or after June 1, 1990 for an individual who immediately preceding the benefit year was subject to a disability compensable under the provisions of the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et seq.), "base year" shall mean the first four of the last five completed calendar quarters immediately preceding the individual's period of disability, if the employment held by the individual immediately preceding the period of disability is no longer available at the conclusion of that period and the individual files a valid claim for unemployment benefits after the conclusion of that period. For the purposes of this paragraph, "period of disability" means the period defined as a period of disability by section 3 of the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-27). An individual who files a claim under the provisions of this paragraph (2) shall not be regarded as having left work voluntarily for the purposes of subsection (a) of R.S.43:21-5.
(3) With respect to a benefit year commencing on or after June 1, 1990 for an individual who immediately preceding the benefit year was subject to a disability compensable under the provisions of the workers' compensation law (chapter 15 of Title 34 of the Revised Statutes), "base year" shall mean the first four of the last five completed calendar quarters immediately preceding the individual's period of disability, if the period of disability was not longer than two years, if the employment held by the individual immediately preceding the period of disability is no longer available at the conclusion of that period and if the individual files a valid claim for unemployment benefits after the conclusion of that period. For the purposes of this paragraph, "period of disability" means the period from the time at which the individual becomes unable to work because of the compensable disability until the time that the individual becomes able to resume work and continue work on a permanent basis. An individual who files a claim under the provisions of this paragraph (3) shall not be regarded as having left work voluntarily for the purposes of subsection (a) of R.S.43:21-5.
(d) "Benefit year" with respect to any individual means the 364 consecutive calendar days beginning with the day on, or as of, which he first files a valid claim for benefits, and thereafter beginning with the day on, or as of, which the individual next files a valid claim for benefits after the termination of his last preceding benefit year. Any claim for benefits made in accordance with subsection (a) of R.S.43:21-6 shall be deemed to be a "valid claim" for the purpose of this subsection if (1) he is unemployed for the week in which, or as of which, he files a claim for benefits; and (2) he has fulfilled the conditions imposed by subsection (e) of R.S.43:21-4.
(e) (1) "Division" means the Division of Unemployment and Temporary Disability Insurance of the Department of Labor and Workforce Development, and any transaction or exercise of authority by the director of the division thereunder, or under this chapter (R.S.43:21-1 et seq.), shall be deemed to be performed by the division.
(2) "Controller" means the Office of the Assistant Commissioner for Finance and Controller of the Department of Labor and Workforce Development, established by the 1982 Reorganization Plan of the Department of Labor.
(f) "Contributions" means the money payments to the State Unemployment Compensation Fund, required by R.S.43:21-7. "Payments in lieu of contributions" means the money payments to the State Unemployment Compensation Fund by employers electing or required to make payments in lieu of contributions, as provided in section 3 or section 4 of P.L.1971, c.346 (C.43:21-7.2 or 43:21-7.3).
(g) "Employing unit" means the State or any of its instrumentalities or any political subdivision thereof or any of its instrumentalities or any instrumentality of more than one of the foregoing or any instrumentality of any of the foregoing and one or more other states or political subdivisions or any individual or type of organization, any partnership, association, trust, estate, joint-stock company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person, which has or subsequent to January 1, 1936, had in its employ one or more individuals performing services for it within this State. All individuals performing services within this State for any employing unit which maintains two or more separate establishments within this State shall be deemed to be employed by a single employing unit for all the purposes of this chapter (R.S.43:21-1 et seq.). Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by such employing unit for all the purposes of this chapter (R.S.43:21-1 et seq.), whether such individual was hired or paid directly by such employing unit or by such agent or employee; provided the employing unit had actual or constructive knowledge of the work.
(h) "Employer" means:
(1) Any employing unit which in either the current or the preceding calendar year paid remuneration for employment in the amount of $1,000.00 or more;
(2) Any employing unit (whether or not an employing unit at the time of acquisition) which acquired the organization, trade or business, or substantially all the assets thereof, of another which, at the time of such acquisition, was an employer subject to this chapter (R.S.43:21-1 et seq.);
(3) Any employing unit which acquired the organization, trade or business, or substantially all the assets thereof, of another employing unit and which, if treated as a single unit with such other employing unit, would be an employer under paragraph (1) of this subsection;
(4) Any employing unit which together with one or more other employing units is owned or controlled (by legally enforceable means or otherwise), directly or indirectly by the same interests, or which owns or controls one or more other employing units (by legally enforceable means or otherwise), and which, if treated as a single unit with such other employing unit or interest, would be an employer under paragraph (1) of this subsection;
(5) Any employing unit for which service in employment as defined in R.S.43:21-19 (i) (1) (B) (i) is performed after December 31, 1971; and as defined in R.S.43:21-19 (i) (1) (B) (ii) is performed after December 31, 1977;
(6) Any employing unit for which service in employment as defined in R.S.43:21-19 (i) (1) (c) is performed after December 31, 1971 and which in either the current or the preceding calendar year paid remuneration for employment in the amount of $1,000.00 or more;
(7) Any employing unit not an employer by reason of any other paragraph of this subsection (h) for which, within either the current or preceding calendar year, service is or was performed with respect to which such employing unit is liable for any federal tax against which credit may be taken for contributions required to be paid into a state unemployment fund; or which, as a condition for approval of the "unemployment compensation law" for full tax credit against the tax imposed by the Federal Unemployment Tax Act, is required pursuant to such act to be an employer under this chapter (R.S.43:21-1 et seq.);
(8) (Deleted by amendment; P.L.1977, c.307.)
(9) (Deleted by amendment; P.L.1977, c.307.)
(10) (Deleted by amendment; P.L.1977, c.307.)
(11) Any employing unit subject to the provisions of the Federal Unemployment Tax Act within either the current or the preceding calendar year, except for employment hereinafter excluded under paragraph (7) of subsection (i) of this section;
(12) Any employing unit for which agricultural labor in employment as defined in R.S.43:21-19 (i) (1) (I) is performed after December 31, 1977;
(13) Any employing unit for which domestic service in employment as defined in R.S.43:21-19 (i) (1) (J) is performed after December 31, 1977;
(14) Any employing unit which having become an employer under the "unemployment compensation law" (R.S.43:21-1 et seq.), has not under R.S.43:21-8 ceased to be an employer; or for the effective period of its election pursuant to R.S.43:21-8, any other employing unit which has elected to become fully subject to this chapter (R.S.43:21-1 et seq.).
(i) (1) "Employment" means:
(A) Any service performed prior to January 1, 1972, which was employment as defined in the "unemployment compensation law" (R.S.43:21-1 et seq.) prior to such date, and, subject to the other provisions of this subsection, service performed on or after January 1, 1972, including service in interstate commerce, performed for remuneration or under any contract of hire, written or oral, express or implied.
(B) (i) Service performed after December 31, 1971 by an individual in the employ of this State or any of its instrumentalities or in the employ of this State and one or more other states or their instrumentalities for a hospital or institution of higher education located in this State, if such service is not excluded from "employment" under paragraph (D) below.
(ii) Service performed after December 31, 1977, in the employ of this State or any of its instrumentalities or any political subdivision thereof or any of its instrumentalities or any instrumentality of more than one of the foregoing or any instrumentality of the foregoing and one or more other states or political subdivisions, if such service is not excluded from "employment" under paragraph (D) below.
(C) Service performed after December 31, 1971 by an individual in the employ of a religious, charitable, educational, or other organization, which is excluded from "employment" as defined in the Federal Unemployment Tax Act, solely by reason of section 3306 (c)(8) of that act, if such service is not excluded from "employment" under paragraph (D) below.
(D) For the purposes of paragraphs (B) and (C), the term "employment" does not apply to services performed
(i) In the employ of (I) a church or convention or association of churches, or (II) an organization, or school which is operated primarily for religious purposes and which is operated, supervised, controlled or principally supported by a church or convention or association of churches;
(ii) By a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order;
(iii) Prior to January 1, 1978, in the employ of a school which is not an institution of higher education, and after December 31, 1977, in the employ of a governmental entity referred to in R.S.43:21-19 (i) (1) (B), if such service is performed by an individual in the exercise of duties
(aa) as an elected official;
(bb) as a member of a legislative body, or a member of the judiciary, of a state or political subdivision;
(cc) as a member of the State National Guard or Air National Guard;
(dd) as an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency;
(ee) in a position which, under or pursuant to the laws of this State, is designated as a major nontenured policy making or advisory position, or a policy making or advisory position, the performance of the duties of which ordinarily does not require more than eight hours per week; or
(iv) By an individual receiving rehabilitation or remunerative work in a facility conducted for the purpose of carrying out a program of rehabilitation of individuals whose earning capacity is impaired by age or physical or mental deficiency or injury or providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market;
(v) By an individual receiving work-relief or work-training as part of an unemployment work-relief or work-training program assisted in whole or in part by any federal agency or an agency of a state or political subdivision thereof; or
(vi) Prior to January 1, 1978, for a hospital in a State prison or other State correctional institution by an inmate of the prison or correctional institution and after December 31, 1977, by an inmate of a custodial or penal institution.
(E) The term "employment" shall include the services of an individual who is a citizen of the United States, performed outside the United States after December 31, 1971 (except in Canada and in the case of the Virgin Islands, after December 31, 1971) and prior to January 1 of the year following the year in which the U.S. Secretary of Labor approves the unemployment compensation law of the Virgin Islands, under section 3304 (a) of the Internal Revenue Code of 1986 (26 U.S.C. s.3304 (a)) in the employ of an American employer (other than the service which is deemed employment under the provisions of R.S.43:21-19 (i) (2) or (5) or the parallel provisions of another state's unemployment compensation law), if
(i) The American employer's principal place of business in the United States is located in this State; or
(ii) The American employer has no place of business in the United States, but (I) the American employer is an individual who is a resident of this State; or (II) the American employer is a corporation which is organized under the laws of this State; or (III) the American employer is a partnership or trust and the number of partners or trustees who are residents of this State is greater than the number who are residents of another state; or
(iii) None of the criteria of divisions (i) and (ii) of this subparagraph (E) is met but the American employer has elected to become an employer subject to the "unemployment compensation law" (R.S.43:21-1 et seq.) in this State, or the American employer having failed to elect to become an employer in any state, the individual has filed a claim for benefits, based on such service, under the law of this State;
(iv) An "American employer," for the purposes of this subparagraph (E), means (I) an individual who is a resident of the United States; or (II) a partnership, if two-thirds or more of the partners are residents of the United States; or (III) a trust, if all the trustees are residents of the United States; or (IV) a corporation organized under the laws of the United States or of any state.
(F) Notwithstanding R.S.43:21-19 (i) (2), all service performed after January 1, 1972 by an officer or member of the crew of an American vessel or American aircraft on or in connection with such vessel or aircraft, if the operating office from which the operations of such vessel or aircraft operating within, or within and without, the United States are ordinarily and regularly supervised, managed, directed, and controlled, is within this State.
(G) Notwithstanding any other provision of this subsection, service in this State with respect to which the taxes required to be paid under any federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund or which as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act is required to be covered under the "unemployment compensation law" (R.S.43:21-1 et seq.).
(H) The term "United States" when used in a geographical sense in subsection R.S.43:21-19 (i) includes the states, the District of Columbia, the Commonwealth of Puerto Rico and, effective on the day after the day on which the U.S. Secretary of Labor approves for the first time under section 3304 (a) of the Internal Revenue Code of 1986 (26 U.S.C. s.3304 (a)) an unemployment compensation law submitted to the Secretary by the Virgin Islands for such approval, the Virgin Islands.
(I) (i) Service performed after December 31, 1977 in agricultural labor in a calendar year for an entity which is an employer as defined in the "unemployment compensation law," (R.S.43:21-1 et seq.) as of January 1 of such year; or for an employing unit which
(aa) during any calendar quarter in either the current or the preceding calendar year paid remuneration in cash of $20,000.00 or more for individuals employed in agricultural labor, or
(bb) for some portion of a day in each of 20 different calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year, employed in agricultural labor 10 or more individuals, regardless of whether they were employed at the same moment in time, except that the conditions of R.S.34:21-19(i)(1)(I)(aa) and (bb) shall not apply after December 31, 2021.
(ii) for the purposes of this subsection any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other entity shall be treated as an employee of such crew leader
(aa) if such crew leader holds a certification of registration under the Migrant and Seasonal Agricultural Worker Protection Act, Pub.L.97-470 (29 U.S.C. s.1801 et seq.), or P.L.1971, c.192 (C.34:8A-7 et seq.); or substantially all the members of such crew operate or maintain tractors, mechanized harvesting or cropdusting equipment, or any other mechanized equipment, which is provided by such crew leader; and
(bb) if such individual is not an employee of such other person for whom services were performed.
(iii) For the purposes of subparagraph (I) (i) in the case of any individual who is furnished by a crew leader to perform service in agricultural labor or any other entity and who is not treated as an employee of such crew leader under (I) (ii)
(aa) such other entity and not the crew leader shall be treated as the employer of such individual; and
(bb) such other entity shall be treated as having paid cash remuneration to such individual in an amount equal to the amount of cash remuneration paid to such individual by the crew leader (either on his own behalf or on behalf of such other entity) for the service in agricultural labor performed for such other entity.
(iv) For the purpose of subparagraph (I)(ii), the term "crew leader" means an individual who
(aa) furnishes individuals to perform service in agricultural labor for any other entity;
(bb) pays (either on his own behalf or on behalf of such other entity) the individuals so furnished by him for the service in agricultural labor performed by them; and
(cc) has not entered into a written agreement with such other entity under which such individual is designated as an employee of such other entity.
(J) Domestic service after December 31, 1977 performed in the private home of an employing unit which paid cash remuneration of $1,000.00 or more to one or more individuals for such domestic service in any calendar quarter in the current or preceding calendar year.
(2) The term "employment" shall include an individual's entire service performed within or both within and without this State if:
(A) The service is localized in this State; or
(B) The service is not localized in any state but some of the service is performed in this State, and (i) the base of operations, or, if there is no base of operations, then the place from which such service is directed or controlled, is in this State; or (ii) the base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in this State.
(3) Services performed within this State but not covered under paragraph (2) of this subsection shall be deemed to be employment subject to this chapter (R.S.43:21-1 et seq.) if contributions are not required and paid with respect to such services under an unemployment compensation law of any other state or of the federal government.
(4) Services not covered under paragraph (2) of this subsection and performed entirely without this State, with respect to no part of which contributions are required and paid under an unemployment compensation law of any other state or of the federal government, shall be deemed to be employment subject to this chapter (R.S.43:21-1 et seq.) if the individual performing such services is a resident of this State and the employing unit for whom such services are performed files with the division an election that the entire service of such individual shall be deemed to be employment subject to this chapter (R.S.43:21-1 et seq.).
(5) Service shall be deemed to be localized within a state if:
(A) The service is performed entirely within such state; or
(B) The service is performed both within and without such state, but the service performed without such state is incidental to the individual's service within the state; for example, is temporary or transitory in nature or consists of isolated transactions.
(6) Services performed by an individual for remuneration shall be deemed to be employment subject to this chapter (R.S.43:21-1 et seq.) unless and until it is shown to the satisfaction of the division that:
(A) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and
(B) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
(C) Such individual is customarily engaged in an independently established trade, occupation, profession or business.
(7) Provided that such services are also exempt under the Federal Unemployment Tax Act, as amended, or that contributions with respect to such services are not required to be paid into a state unemployment fund as a condition for a tax offset credit against the tax imposed by the Federal Unemployment Tax Act, as amended, the term "employment" shall not include:
(A) [Agricultural labor performed prior to January 1, 1978; and after December 31, 1977, only if performed in a calendar year for an entity which is not an employer as defined in the "unemployment compensation law," (R.S.43:21-1 et seq.) as of January 1 of such calendar year; or unless performed for an employing unit which
(i) during a calendar quarter in either the current or the preceding calendar year paid remuneration in cash of $20,000.00 or more to individuals employed in agricultural labor, or
(ii) for some portion of a day in each of 20 different calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year, employed in agricultural labor 10 or more individuals, regardless of whether they were employed at the same moment in time] Deleted by amendment, P.L. , c. (C. ) (pending before the Legislature as this bill);
(B) Domestic service in a private home performed prior to January 1, 1978; and after December 31, 1977, unless performed in the private home of an employing unit which paid cash remuneration of $1,000.00 or more to one or more individuals for such domestic service in any calendar quarter in the current or preceding calendar year;
(C) Service performed by an individual in the employ of his son, daughter or spouse, and service performed by a child under the age of 18 in the employ of his father or mother;
(D) Service performed prior to January 1, 1978, in the employ of this State or of any political subdivision thereof or of any instrumentality of this State or its political subdivisions, except as provided in R.S.43:21-19 (i) (1) (B) above, and service in the employ of the South Jersey Port Corporation or its successors;
(E) Service performed in the employ of any other state or its political subdivisions or of an instrumentality of any other state or states or their political subdivisions to the extent that such instrumentality is with respect to such service exempt under the Constitution of the United States from the tax imposed under the Federal Unemployment Tax Act, as amended, except as provided in R.S.43:21-19 (i) (1) (B) above;
(F) Service performed in the employ of the United States Government or of any instrumentality of the United States exempt under the Constitution of the United States from the contributions imposed by the "unemployment compensation law," except that to the extent that the Congress of the United States shall permit states to require any instrumentalities of the United States to make payments into an unemployment fund under a state unemployment compensation law, all of the provisions of this act shall be applicable to such instrumentalities, and to service performed for such instrumentalities, in the same manner, to the same extent and on the same terms as to all other employers, employing units, individuals and services; provided that if this State shall not be certified for any year by the Secretary of Labor of the United States under section 3304 of the federal Internal Revenue Code of 1986 (26 U.S.C. s.3304), the payments required of such instrumentalities with respect to such year shall be refunded by the division from the fund in the same manner and within the same period as is provided in R.S.43:21-14 (f) with respect to contributions erroneously paid to or collected by the division;
(G) Services performed in the employ of fraternal beneficiary societies, orders, or associations operating under the lodge system or for the exclusive benefit of the members of a fraternity itself operating under the lodge system and providing for the payment of life, sick, accident, or other benefits to the members of such society, order, or association, or their dependents;
(H) Services performed as a member of the board of directors, a board of trustees, a board of managers, or a committee of any bank, building and loan, or savings and loan association, incorporated or organized under the laws of this State or of the United States, where such services do not constitute the principal employment of the individual;
(I) Service with respect to which unemployment insurance is payable under an unemployment insurance program established by an Act of Congress;
(J) Service performed by agents of mutual fund brokers or dealers in the sale of mutual funds or other securities, by agents of insurance companies, exclusive of industrial insurance agents or by agents of investment companies, if the compensation to such agents for such services is wholly on a commission basis;
(K) Services performed by real estate salesmen or brokers who are compensated wholly on a commission basis;
(L) Services performed in the employ of any veterans' organization chartered by Act of Congress or of any auxiliary thereof, no part of the net earnings of which organization, or auxiliary thereof, inures to the benefit of any private shareholder or individual;
(M) Service performed for or in behalf of the owner or operator of any theater, ballroom, amusement hall or other place of entertainment, not in excess of 10 weeks in any calendar year for the same owner or operator, by any leader or musician of a band or orchestra, commonly called a "name band," entertainer, vaudeville artist, actor, actress, singer or other entertainer;
(N) Services performed after January 1, 1973 by an individual for a labor union organization, known and recognized as a union local, as a member of a committee or committees reimbursed by the union local for time lost from regular employment, or as a part-time officer of a union local and the remuneration for such services is less than $1,000.00 in a calendar year;
(O) Services performed in the sale or distribution of merchandise by home-to-home salespersons or in-the-home demonstrators whose remuneration consists wholly of commissions or commissions and bonuses;
(P) Service performed in the employ of a foreign government, including service as a consular, nondiplomatic representative, or other officer or employee;
(Q) Service performed in the employ of an instrumentality wholly owned by a foreign government if (i) the service is of a character similar to that performed in foreign countries by employees of the United States Government or of an instrumentality thereof, and (ii) the division finds that the United States Secretary of State has certified to the United States Secretary of the Treasury that the foreign government, with respect to whose instrumentality exemption is claimed, grants an equivalent exemption with respect to similar services performed in the foreign country by employees of the United States Government and of instrumentalities thereof;
(R) Service in the employ of an international organization entitled to enjoy the privileges, exemptions and immunities under the International Organizations Immunities Act (22 U.S.C. s.288 et seq.);
(S) Service covered by an election duly approved by an agency charged with the administration of any other state or federal unemployment compensation or employment security law, in accordance with an arrangement pursuant to R.S.43:21-21 during the effective period of such election;
(T) Service performed in the employ of a school, college, or university if such service is performed (i) by a student enrolled at such school, college, or university on a full-time basis in an educational program or completing such educational program leading to a degree at any of the severally recognized levels, or (ii) by the spouse of such a student, if such spouse is advised at the time such spouse commences to perform such service that (I) the employment of such spouse to perform such service is provided under a program to provide financial assistance to such student by such school, college, or university, and (II) such employment will not be covered by any program of unemployment insurance;
(U) Service performed by an individual who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on, as a student in a full-time program, taken for credit at such institution, which combines academic instruction with work experience, if such service is an integral part of such program, and such institution has so certified to the employer, except that this subparagraph shall not apply to service performed in a program established for or on behalf of an employer or group of employers;
(V) Service performed in the employ of a hospital, if such service is performed by a patient of the hospital; service performed as a student nurse in the employ of a hospital or a nurses' training school by an individual who is enrolled and regularly attending classes in a nurses' training school approved under the laws of this State;
(W) Services performed after the effective date of this amendatory act by agents of mutual benefit associations if the compensation to such agents for such services is wholly on a commission basis;
(X) Services performed by operators of motor vehicles weighing 18,000 pounds or more, licensed for commercial use and used for the highway movement of motor freight, who own their equipment or who lease or finance the purchase of their equipment through an entity which is not owned or controlled directly or indirectly by the entity for which the services were performed and who were compensated by receiving a percentage of the gross revenue generated by the transportation move or by a schedule of payment based on the distance and weight of the transportation move;
(Y) (Deleted by amendment, P.L.2009, c.211.)
(Z) Services performed, using facilities provided by a travel agent, by a person, commonly known as an outside travel agent, who acts as an independent contractor, is paid on a commission basis, sets his own work schedule and receives no benefits, sick leave, vacation or other leave from the travel agent owning the facilities.
(8) If one-half or more of the services in any pay period performed by an individual for an employing unit constitutes employment, all the services of such individual shall be deemed to be employment; but if more than one-half of the service in any pay period performed by an individual for an employing unit does not constitute employment, then none of the service of such individual shall be deemed to be employment. As used in this paragraph, the term "pay period" means a period of not more than 31 consecutive days for which a payment for service is ordinarily made by an employing unit to individuals in its employ.
(9) Services performed by the owner of a limousine franchise (franchisee) shall not be deemed to be employment subject to the "unemployment compensation law," R.S.43:21-1 et seq., with regard to the franchisor if:
(A) The limousine franchisee is incorporated;
(B) The franchisee is subject to regulation by the Interstate Commerce Commission;
(C) The limousine franchise exists pursuant to a written franchise arrangement between the franchisee and the franchisor as defined by section 3 of P.L.1971, c.356 (C.56:10-3); and
(D) The franchisee registers with the Department of Labor and Workforce Development and receives an employer registration number.
(10) Services performed by a legal transcriber, or certified court reporter certified pursuant to P.L.1940, c.175 (C.45:15B-1 et seq.), shall not be deemed to be employment subject to the "unemployment compensation law," R.S.43:21-1 et seq., if those services are provided to a third party by the transcriber or reporter who is referred to the third party pursuant to an agreement with another legal transcriber or legal transcription service, or certified court reporter or court reporting service, on a freelance basis, compensation for which is based upon a fee per transcript page, flat attendance fee, or other flat minimum fee, or combination thereof, set forth in the agreement.
For purposes of this paragraph (10): "legal transcription service" and "legal transcribing" mean making use, by audio, video or voice recording, of a verbatim record of court proceedings, depositions, other judicial proceedings, meetings of boards, agencies, corporations, or other bodies or groups, and causing that record to be printed in readable form or produced on a computer screen in readable form; and "legal transcriber" means a person who engages in "legal transcribing."
(j) "Employment office" means a free public employment office, or branch thereof operated by this State or maintained as a part of a State-controlled system of public employment offices.
(k) (Deleted by amendment, P.L.1984, c.24.)
(l) "State" includes, in addition to the states of the United States of America, the District of Columbia, the Virgin Islands and Puerto Rico.
(m) "Unemployment."
(1) An individual shall be deemed "unemployed" for any week during which:
(A) The individual is not engaged in full-time work and with respect to which his remuneration is less than his weekly benefit rate, including any week during which he is on vacation without pay; provided such vacation is not the result of the individual's voluntary action, except that for benefit years commencing on or after July 1, 1984, an officer of a corporation, or a person who has more than a 5% equitable or debt interest in the corporation, whose claim for benefits is based on wages with that corporation shall not be deemed to be unemployed in any week during the individual's term of office or ownership in the corporation; or
(B) The individual is eligible for and receiving a self-employment assistance allowance pursuant to the requirements of P.L.1995, c.394 (C.43:21-67 et al.).
(2) The term "remuneration" with respect to any individual for benefit years commencing on or after July 1, 1961, and as used in this subsection, shall include only that part of the same which in any week exceeds 20% of his weekly benefit rate (fractional parts of a dollar omitted) or $5.00, whichever is the larger, and shall not include any moneys paid to an individual by a county board of elections for work as a board worker on an election day.
(3) An individual's week of unemployment shall be deemed to commence only after the individual has filed a claim at an unemployment insurance claims office, except as the division may by regulation otherwise prescribe.
(n) "Unemployment compensation administration fund" means the unemployment compensation administration fund established by this chapter (R.S.43:21-1 et seq.), from which administrative expenses under this chapter (R.S.43:21-1 et seq.) shall be paid.
(o) "Wages" means remuneration paid by employers for employment. If a worker receives gratuities regularly in the course of his employment from other than his employer, his "wages" shall also include the gratuities so received, if reported in writing to his employer in accordance with regulations of the division, and if not so reported, his "wages" shall be determined in accordance with the minimum wage rates prescribed under any labor law or regulation of this State or of the United States, or the amount of remuneration actually received by the employee from his employer, whichever is the higher.
(p) "Remuneration" means all compensation for personal services, including commission and bonuses and the cash value of all compensation in any medium other than cash.
(q) "Week" means for benefit years commencing on or after October 1, 1984, the calendar week ending at midnight Saturday, or as the division may by regulation prescribe.
(r) "Calendar quarter" means the period of three consecutive calendar months ending March 31, June 30, September 30, or December 31.
(s) "Investment company" means any company as defined in subsection a. of section 1 of P.L.1938, c.322 (C.17:16A-1).
(t) (1) (Deleted by amendment, P.L.2001, c.17).
(2) "Base week," commencing on or after January 1, 1996 and before January 1, 2001, means:
(A) Any calendar week during which the individual earned in employment from an employer remuneration not less than an amount which is 20% of the Statewide average weekly remuneration defined in subsection (c) of R.S.43:21-3 which amount shall be adjusted to the next higher multiple of $1.00 if not already a multiple thereof, except that if in any calendar week an individual subject to this subparagraph (A) is in employment with more than one employer, the individual may in that calendar week establish a base week with respect to each of the employers from whom the individual earns remuneration equal to not less than the amount defined in this subparagraph (A) during that week; or
(B) If the individual does not establish in his base year 20 or more base weeks as defined in subparagraph (A) of this paragraph (2), any calendar week of an individual's base year during which the individual earned in employment from an employer remuneration not less than an amount 20 times the minimum wage in effect pursuant to section 5 of P.L.1966, c.113 (C.34:11-56a4) on October 1 of the calendar year preceding the calendar year in which the benefit year commences, which amount shall be adjusted to the next higher multiple of $1.00 if not already a multiple thereof, except that if in any calendar week an individual subject to this subparagraph (B) is in employment with more than one employer, the individual may in that calendar week establish a base week with respect to each of the employers from whom the individual earns remuneration not less than the amount defined in this subparagraph (B) during that week.
(3) "Base week," commencing on or after January 1, 2001, means any calendar week during which the individual earned in employment from an employer remuneration not less than an amount 20 times the minimum wage in effect pursuant to section 5 of P.L.1966, c.113 (C.34:11-56a4) on October 1 of the calendar year preceding the calendar year in which the benefit year commences, which amount shall be adjusted to the next higher multiple of $1.00 if not already a multiple thereof, except that if in any calendar week an individual subject to this paragraph (3) is in employment with more than one employer, the individual may in that calendar week establish a base week with respect to each of the employers from whom the individual earns remuneration equal to not less than the amount defined in this paragraph (3) during that week.
(u) "Average weekly wage" means the amount derived by dividing an individual's total wages received during his base year base weeks (as defined in subsection (t) of this section) from that most recent base year employer with whom he has established at least 20 base weeks, by the number of base weeks in which such wages were earned. In the event that such claimant had no employer in his base year with whom he had established at least 20 base weeks, then such individual's average weekly wage shall be computed as if all of his base week wages were received from one employer and as if all his base weeks of employment had been performed in the employ of one employer.
For the purpose of computing the average weekly wage, the monetary alternative in subparagraph (B) of paragraph (2) of subsection (e) of R.S.43:21-4 shall only apply in those instances where the individual did not have at least 20 base weeks in the base year. For benefit years commencing on or after July 1, 1986, "average weekly wage" means the amount derived by dividing an individual's total base year wages by the number of base weeks worked by the individual during the base year; provided that for the purpose of computing the average weekly wage, the maximum number of base weeks used in the divisor shall be 52.
(v) "Initial determination" means, subject to the provisions of R.S.43:21-6(b)(2) and (3), a determination of benefit rights as measured by an eligible individual's base year employment with a single employer covering all periods of employment with that employer during the base year.
(w) "Last date of employment" means the last calendar day in the base year of an individual on which he performed services in employment for a given employer.
(x) "Most recent base year employer" means that employer with whom the individual most recently, in point of time, performed service in employment in the base year.
(y) (1) "Educational institution" means any public or other nonprofit institution (including an institution of higher education):
(A) In which participants, trainees, or students are offered an organized course of study or training designed to transfer to them knowledge, skills, information, doctrines, attitudes or abilities from, by or under the guidance of an instructor or teacher;
(B) Which is approved, licensed or issued a permit to operate as a school by the State Department of Education or other government agency that is authorized within the State to approve, license or issue a permit for the operation of a school; and
(C) Which offers courses of study or training which may be academic, technical, trade, or preparation for gainful employment in a recognized occupation.
(2) "Institution of higher education" means an educational institution which:
(A) Admits as regular students only individuals having a certificate of graduation from a high school, or the recognized equivalent of such a certificate;
(B) Is legally authorized in this State to provide a program of education beyond high school;
(C) Provides an educational program for which it awards a bachelor's or higher degree, or provides a program which is acceptable for full credit toward such a degree, a program of post-graduate or post-doctoral studies, or a program of training to prepare students for gainful employment in a recognized occupation; and
(D) Is a public or other nonprofit institution.
Notwithstanding any of the foregoing provisions of this subsection, all colleges and universities in this State are institutions of higher education for purposes of this section.
(z) "Hospital" means an institution which has been licensed, certified or approved under the law of this State as a hospital.
(cf: P.L.2017, c.230).
12. This act shall take effect immediately.
STATEMENT
This bill, the "Farm Labor Equality Act," modifies a number of labor laws to provide farmworkers with rights and protections equal to the rights and protections provided to other workers, specifically in the areas of child labor, overtime pay, employee representation and collective bargaining, and unemployment benefits.
Child labor:
This bill repeals provisions of the State child labor law, P.L.1940, c.153 (C.34:2-21.1 et seq.), that currently exempt minors employed in agriculture from requirements of that law which apply to most other minors. The bill:
1. raises the minimum age that minors may work in agriculture from 12 years old to 14 years old;
2. reduces the number of hours per day that a minor may work in agriculture from 10 to 8 hours, and clarifies that various limits to work time that apply to most minors also apply to minors employed in agriculture, including not working more than six days, or 40 hours, per week, and not working before 7 a.m. or after 7 p.m,; and
3. Makes employment of minors from 16 to 18 years old in agriculture subject to the same certification and permitting requirements, and oversight by parents and schools, as employment of other minors of those ages.
The bill does not change the provisions of P.L.1940, c.153 which exempt from its provisions agricultural work done by a minor in connection with the minor's own home under the minor's parent or guardian while school is not in session.
Overtime pay:
The bill repeals provisions of
the State wage and hour law, P.L.1966, c.113 (C.34:11-56a et seq.), that
currently exclude farmworkers from overtime pay, thus requiring employers to
pay farmworkers 1½ times their regular wage for each hour excess of 40 hours
per week, as is currently required for most other workers.
Employee representation and collective bargaining:
Currently, farmworkers are excluded from the protections against unfair labor practices provided to most private sector workers by the federal National Labor Relations Act (29 U.S.C. s.151 et seq.)("NLRA"), and provided to public employees by the State public employment relations law, P.L.1968, c.303 (C.34:13A-5.1 et seq.)("PERL") and the Workplace Democracy Enhancement Act, P.L.2018, c.15 (C.34:13A-5.11 et seq.) ("WDEA").
This bill brings farmworkers under protections similar to those laws, by expanding the responsibilities of the Division of Private Employment Dispute Settlement in the Department of Labor and Workforce Development regarding agricultural employment not regulated by the NLRA. It provides the division with the power to prevent specified unfair labor practices, thus providing rights to the farmworkers similar to the rights provided to other private sector workers under the NLRA, and the rights provided to public employees under the PERL and the WDEA.
The bill prohibits agricultural employers and their representatives and agents from the following unfair practices:
1. Interfering with, restraining, or coercing employees in the exercise of the rights granted by the bill.
2. Dominating or interfering with any employee organization.
3. Discriminating against employees for making disclosures or otherwise exercising their rights.
4. Refusing to negotiate in good faith or sign a negotiated agreement.
5. Violating any division regulation.
The bill similarly prohibits employee organizations and their representatives and agents from the following unfair practices:
1. Interfering with, restraining or coercing employees in the exercise of their rights.
2. Interfering with, restraining or coercing an agricultural employer in the selection of a representative for negotiations or grievance procedures.
3. Refusing to negotiate in good faith or sign a negotiated agreement.
4. Violating any division regulation.
The division may order an offending party to cease any unfair practice and take reasonable remedial action, including, in the case of a discharge, reinstatement, paying lost wages, costs of action, and damages equal to the wages due. It is also an unfair practice under the bill for an agricultural employer to encourage or discourage employees from joining, forming or assisting an employee organization, or encourage them to end their employee organization membership or revoke authorization of the deduction of dues or fees. The division is required to order the employer to make whole the employee organization for any resulting losses to the organization.
Current law, section 5 of P.L.1968, c.303 (C.34:13A-5.1), permits the New Jersey State Board of Mediation to designate a labor organization to represent employees of a private sector employer not regulated under the NLRA, if the employees select the organization in an election conforming with NLRA procedures, or, if only one labor organization seeks to represent the employees, a majority of the employees sign cards showing that they prefer that organization.
The bill provides that in such cases the employee organization may petition the board to require the employer to provide a list of current employees with contact information. If the organization petitions the board for that information, the employer must also give the organization access to the employees, including allowing meetings in the workplace and employer-controlled living quarters.
The bill provides that once an employee organization is designated as the employee representative, the employer must give the organization access to the employer's premises to investigate and discuss grievances and other issues, conduct meetings, and meet newly hired employees.
The bill gives farmworker organizations the right to engage in publicity regarding products produced by an employer with which the organization has a dispute, including publicity asking the public to not patronize businesses distributing or selling the products.
Unemployment benefits:
The bill repeals provisions of the State "unemployment compensation law," R.S.43:21-1 et seq., that currently exclude farmworkers from unemployment benefits if their employer employs less than 10 farmworkers during each of 20 weeks in the preceding year or pays less than $20,000 in wages to farmworkers during any calendar quarter in the current or preceding year. This exclusion applies only to farmworkers, and may prevent laid-off farmworkers from receiving benefits even if their combined employment with multiple employers would otherwise make them eligible.
