S1112

An Act concerning the enforcement of prevailing wage requirements in public works and amending and supplementing P.L.1963, c.150.

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

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

5. Every contractor and subcontractor shall keep an accurate record showing the name, craft or trade, and actual hourly rate of wages paid to each worker employed by him in connection with a public work and such records shall be preserved for two years from date of payment. The record shall be open at all reasonable hours to the inspection of the public body awarding the contract, to any other party to the lease or agreement to lease pursuant to which the public work is done, to representatives of workers in the construction industry in the region in which the public work is done, and to the commissioner.

The commissioner shall make available to the public, and provide to any public body that requests the list of contractors that fail to pay the prevailing wages pursuant to section 14 of P.L.1963, c.150 (C.34:11-56.38), a list of organizations which represent workers in the construction industry in the State and request to be on the list, which includes, for each organization, the regions in which it represents construction workers.

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

2. Section 10 of P.L.1963, c.150 (C.34:11-56.34) is amended to read as follows:

10. (a) The fiscal or financial officer of any public body, the lessee to whom the public body is leasing a property or premises or the lessor from whom the public body is leasing or will be leasing a property or premises, having public work performed under which any worker shall have been paid less than the prevailing wage shall forthwith notify the commissioner in writing of the name of the person or firm failing to pay the prevailing wages.

(b) Any worker, or representative of the worker or of workers in the construction industry in the region where the worker is employed, may, within two years from the date of the occurrence of [the incident complained of] a failure to pay the prevailing wage rate to the worker or of any other violation of P.L.1963 (C.34:11-56.25 et seq.), file a protest in writing with the commissioner objecting to the [amount of wages paid for service performed by him on a public work as being less than the prevailing wages for such services] the failure or other violation.

(c) It shall not constitute a failure to pay the prevailing wage rates for the work of a particular craft or classification where the prevailing wage rate determined for a specific craft or classification has been paid and thereafter one or more craft unions contend that the work should have been assigned to their members instead of the members of the specific craft to whom it was assigned or by whom it was performed.

(cf: P.L.2007, c.68, s.5)

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

11. (a) Any employer, party to a contract for public works, or any other person who willfully hinders or delays the commissioner in the performance of his duties in the enforcement of this act, or fails to make, keep, and preserve any records as required under the provisions of this act, or falsifies any such record, or refuses to make, upon demand, [any such record] the records accessible to the commissioner [upon demand] or anyone else to whom the person is required by P.L.1963, c.150 (C.34:11-56.25 et seq.) to make the records available, or refuses to furnish a sworn statement of such record or any other information required for the proper enforcement of this act to the commissioner upon demand, or any employer who pays or agrees to pay wages at a rate less than the rate applicable under this act or otherwise violates any provision of this act or of any regulation or order issued under this act shall be guilty of a disorderly persons offense and shall, upon conviction therefor, be fined not less than $100.00 nor more than $1,000 or be imprisoned for not less than 10 nor more than 90 days, or by both such fine and imprisonment. Each week, in any day of which a worker is paid less than the rate applicable to him under this act and each worker so paid, shall constitute a separate offense.

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

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

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

4. Section 15 of P.L.1963, c.150 (C.34:11-56.39) is amended to read as follows:

15. Any employer who discharges or in any other manner discriminates against any worker because the worker has made any complaint to his employer, [to] the public body, an organization representing workers in the construction industry, or [to] the commissioner that he has not been paid wages in accordance with the provisions of this act, or because the worker has caused to be instituted or is about to cause to be instituted any proceeding under or related to this act, or because the worker has testified or is about to testify in any such proceeding, or because the worker has sought or shared information about wages paid or worker rights under P.L.1963, c.150 (C.34:11-56.25 et seq.), shall be guilty of a disorderly persons offense and shall, upon conviction therefor, be fined not less than $100 nor more than $1,000, and be required to reimburse the worker for two times the losses incurred by the worker due to the discharge or discrimination, including lost wages and benefits, together with reasonable legal fees and other costs of the action, and, if the worker was discharged, to reinstate the worker to the worker's former position, or an equivalent position.

As an alternative to or in addition to any other sanctions provided by law for violations of any provision of P.L.1963, c.150 (C.34:11-56.25 et seq.), when the Commissioner of Labor and Workforce Development finds that an employer has violated that act, the commissioner is authorized to assess and collect administrative penalties, up to a maximum of $250 for a first violation and up to a maximum of $500 for each subsequent violation, specified in a schedule of penalties to be promulgated as a rule or regulation by the commissioner in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), and, in the case of retaliatory discrimination or discharge as described in subsection a. of this section, the commissioner is authorized to require reimbursement and reinstatement as described in that subsection. When determining the amount of the penalty imposed because of a violation, the commissioner shall consider factors which include the history of previous violations by the employer, the seriousness of the violation, the good faith of the employer and the size of the employer's business. No administrative penalty shall be levied pursuant to this section unless the [Commissioner of Labor] commissioner provides the alleged violator with notification of the violation and of the amount of the penalty by certified mail and an opportunity to request a hearing before the commissioner or his designee within 15 days following the receipt of the notice. If a hearing is requested, the commissioner shall issue a final order upon such hearing and a finding that a violation has occurred. If no hearing is requested, the notice shall become a final order upon expiration of the 15-day period. Payment of the penalty is due when a final order is issued or when the notice becomes a final order. Any penalty imposed pursuant to this section may be recovered with costs in a summary proceeding commenced by the commissioner pursuant to "the penalty enforcement [law" (N.J.S.2A:58-1] law,” P.L.1999, c.274 (C.2A:58-10 et seq.). Any sum collected as a fine or penalty pursuant to this section shall be applied toward enforcement and administration costs of the Division of Workplace Standards in the Department of Labor and Workforce Development.

(cf: P.L.1991, c.205, s.20)

5. (New section) Any person, firm, association or corporation which suffers damages as a result of a willful violation by a contractor or subcontractor of the provisions of P.L.1963, c.150 (C.34:11-56.25 et seq.) may bring an action in a court of competent jurisdiction and shall recover the amount equal to two times the damages, together with reasonable legal fees and other costs of the action, including reasonable attorney’s fees.

6. This act shall take effect immediately.

STATEMENT

This bill strengthens the enforcement of the "New Jersey Prevailing Wage Act," P.L.1963, c.150 by providing workers and their representatives with greater access to information and remedies under that law, and enhancing those remedies.

Greater access is provided in the following ways:

1. Contractors and subcontractors are required to make wage records open for inspection at reasonable hours to representatives of workers in the construction industry in the region where the work is done, in the same way that they are currently required to make the records open for inspection to the public body awarding the contract for public work, other parties to the contract, and the Commissioner of Labor and Workforce Development. The commissioner is directed to make available to the public, and provide to any public body that requests information on debarred contractors, a list of organizations which represent workers in the construction industry in the State and request to be on the list, which includes, for each organization, the regions where it represents construction workers.

2. The bill permits the filing of a complaint with the commissioner by not only a worker aggrieved by a violation of the prevailing wage law, but also by any representative of the worker or of workers in the construction industry in the region where the worker is employed.

3. The bill makes any party to a public work contract, or any other person, who willfully obstructs enforcement of the prevailing wage law or who fails to make records available as required by the bill and the current law subject to penalties and other remedies to which employers are subject under current law for such violations.

4. The bill provides that an employer is subject to the prevailing wage law’s penalties for retaliation if the employer retaliates against a worker because the worker discloses violations to an organization representing workers in the construction industry, or because the worker has sought or shared information about wages paid or worker rights under the prevailing wage law. Current anti-retaliation protections concern only worker disclosures to the employer, a public body or the commissioner. The bill provides that in any case of employer retaliation, the employer can be required to reimburse the worker for two times the losses incurred by the worker, including lost wages and benefits, together with reasonable legal fees and other costs of the action, and, if the worker was discharged, to reinstate the worker to the worker's former position or an equivalent position.

Finally, the bill provides that any person, firm, association or corporation which suffers damages as a result of a willful violation by a contractor or subcontractor of the provisions of prevailing wage law may bring an action to recover the amount equal to two times the damages, together with reasonable costs of the action.