Sponsored by:
Assemblyman WAYNE P. DEANGELO
District 14 (Mercer and Middlesex)
Co-Sponsored by:
Assemblywoman Tucker
SYNOPSIS
Requires contracts for sale of certain health care entities to preserve employee wages and benefits and to honor collective bargaining agreements.
CURRENT VERSION OF TEXT
As reported by the Assembly Budget Committee on June 27, 2022, with amendments.
An Act concerning changes in control of health care entities and supplementing 1[P.L.1966, c.113 (C.34:11-56a et seq.)] P.L.1965, c.173 (C.34:11-4.1 et seq.)1 .
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. a. Not less than 30 days before a change in control, a former health care entity employer shall: provide the successor health care entity employer, and any collective bargaining representative the employees may have, a list containing the name, address, date of hire, phone number, wage rate, and employment classification of each eligible employee employed at the affected health care entity; inform all eligible employees of their rights provided by this section; and post, in a conspicuous location or locations accessible to all employees, a notice setting forth the rights provided by this section.
b. 1[Any contract or agreement that provides for a] No1 change in control of a health care entity shall 1[provide] be made without a contract or agreement between the former health care entity employer and the successor health care entity employer which provides1 that:
(1) the successor health care entity employer shall 1[,] offer employment1 during a transitional period of not less than 1[six] four1 months following the change in control 1[, offer] to1 each eligible employee 1[employment during the transitional period with no reduction of wages and] ,1 with no reduction of 1wages or paid time off, and no reduction of1 the total value of benefits, including health care, paid time off, retirement, and education benefits, 1[with the offer being made in writing and remaining open for at least 10 business days from the date of the offer] provided that:
(a) the offer shall be made in writing and remain open for at least 10 business days from the date of the offer;
(b) during the transition period, the successor health care entity shall offer all available employment positions to eligible employees who had previously held the positions until the available employment positions are filled or until no more eligible employees are available; and
(c) if, at the time of the change in control and throughout the transition period, the total number of employment positions is less than the total number of eligible employees, the choice of employees to be employed shall be based on seniority and experience1 ;
(2) an eligible employee retained pursuant to this section shall not be discharged without cause during the transitional period, except that a successor employer may lay off eligible employees if the employer 1[finds that fewer employees are needed] reduces the total number of employees, including at the time of the change in control1 , but only if the choice of employees to be retained is based on seniority and experience, and laid off employees are offered any positions 1they had previously held1 that are subsequently restored 1during the transitional period1 ;
(3) at the end of the transitional period, the successor employer shall perform a written performance evaluation for each retained eligible employee, and offer the employee continued employment if an employee's performance during that period was satisfactory; and
(4) a successor employer shall retain 1, and provide to the employee or representative of the employee upon request,1 a written record of each offer of employment and each evaluation made pursuant to this subsection, for not less than three years from the date of the offer or evaluation, with each record including the name, address, date of hire, phone number, wage rate, and employment classification of the employee 1[, and provided to the employee or representative of the employee upon request]1 .
c. All parties to a contract or agreement covered by this section, and all health care entities subject to a change in control pursuant to a contract or agreement covered by this section, shall comply with all provisions that are required by this section to be included in the contract or agreement pursuant to subsection b. of this section, regardless of whether those provisions are expressly included in the contract or agreement.
d. Notwithstanding the foregoing, no action taken pursuant to and in compliance with a collective bargaining agreement entered into by an exclusive representative of employees of a health care entity subject to a change in control pursuant to a contract or agreement covered by this section shall be considered a violation of this section. Nothing in this section shall be construed as limiting, delaying, or preventing, including during the transitional period: the recognition of a collective bargaining representative of the employees by a successor health care entity employer; or collective bargaining between the successor health care entity employer and the collective bargaining representative.
e. 1[An eligible employee who has been affected by a violation of this section may bring an action in any court of competent jurisdiction against any party to a contract or agreement covered by this section and any health care entity subject to a change in control pursuant to a contract or agreement covered by this section for violation of any obligation imposed by this section. The court shall have authority to order injunctive relief to prevent or remedy a violation of any obligation imposed by this section, including, if an eligible employee is discharged in violation of the provisions of this section, the ordering that the employee be reinstated. If the court finds that, by reason of a violation of any obligation imposed by this section, a plaintiff has suffered a loss of wages or benefits, the court shall award back pay for all losses of wages and benefits, the costs of benefits the health care entity or other defendant would have incurred for benefits lost by the plaintiff, expenses incurred by the plaintiff as a result of the lost benefits, and an amount equal to back pay as liquidated damages.
f. The court shall award a plaintiff prevailing in an action brought pursuant to subsection e. of this section reasonable attorneys’ fees.
g.] An employer who violates the provisions of this section shall be subject to the sanctions, and an employee affected by the violation shall have the remedies, provided by law for violations of P.L.1965, c.173 (C.34:11-4.1 et seq.). For the purposes of determining penalties and remedies imposed pursuant to section 10 of P.L.1965, c.173 (C.34:11-4.10) for violations of this section:
(1) a failure to pay an employee wages, paid time off, or the value of benefits, as required by subsection b. of this section, shall be regarded as a failure to pay the full amount of wages for the purposes of section 10 of P.L.1965, c.173 (C.34:11-4.10), and the remedies for the failure to pay paid time off or the value of benefits shall be made in the same manner as remedies for unpaid wages;
(2) a discharge of an employee, or failure to offer employment or retain in employment an employee, in violation of subsection b. of this section shall be regarded as retaliation against the employee for the purposes of section 10 of P.L.1965, c.173 (C.34:11-4.10); and
(3) in a civil action brought before a court by the employee, the court shall have authority to order injunctive or other permanent equitable relief, including, but not limited to, immediate reinstatement of any employee discharged or not retained in violation of this section.
f.1 As used in this section:
“Change in control” means: any sale, assignment, transfer, contribution or other disposition of all or substantially all of the assets used in a health care entity’s operations; or any sale, assignment, transfer, contribution or other disposition of a controlling interest in the health care entity, including by consolidation, merger, or reorganization, of the health care entity or any person who controls the health care entity; or any other event or sequence of events, including a purchase, sale, or termination of a management contract or lease, that causes the identity of the health care entity employer to change, but shall not include a change in control in which both the former health care entity employer and the successor health care employer are government entities. A change in control shall be defined to occur on the date of execution of the document effectuating the change.
“Eligible employee” means: any person employed at an affected health care entity during the 90-day period immediately preceding a change in control of a health care entity; or any person formerly employed at the health care entity who retains recall rights under an agreement with the former health care entity employer, except that an “eligible employee” shall not include a managerial employee 1, and shall not include any person who was discharged with cause by the former health care entity or successor health care entity during that 90-day period1 .
“Former health care entity employer” means any 1[health care entity]1 employer 1of eligible employees1 who owns, controls, or operates a health care entity 1where the eligible employees are employed1 prior to a change in control of the entity.
“Government entity” means the State of New Jersey, any of its political subdivisions, any authority created by the Legislature of the State of New Jersey and any instrumentality or agency of the State of New Jersey or of any of its political subdivisions.
"Health care entity" means a health care facility licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.), a staffing registry, or a home care services agency as defined in section 1 of P.L.1947, c.262 (C.45:11-23).
1[“Health care entity employer” means any person who owns, controls or operates a health care entity that has one or more eligible employees.] If a health care entity is part of a larger facility which includes facilities which are not licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.), the portion of the facility which is not licensed shall not be regarded as a “health care entity” for the purposes of this section.1
“Managerial employee” means an employee who is exempt from the overtime requirements of the New Jersey State Wage and Hour Law, P.L.1966, c.113 (C.34:11-56a et seq.), because the employee is an executive employee.
"Successor health care entity employer" 1[or “successor employer”]1 means 1[a health care entity] any1 employer 1of eligible employees1 who owns, controls or operates a health care entity 1where eligible employees are employed1 after a change in control of the entity.
1[h.] g.1 The provisions of this section shall be deemed to be severable and if any subsection, paragraph, sentence or other portion of this section is for any reason held or declared by any court of competent jurisdiction to be unconstitutional or preempted by federal law, or the applicability of that portion to any person or facility is held invalid, the remainder of this section shall not thereby be deemed to be unconstitutional, preempted, or invalid.
2. This act shall take effect on the 90th day after enactment and shall apply to contracts or agreements for 1[the sale or transfer] changes in control1 of health care entities entered into on or after the effective date of this act.