S2963

An Act concerning private contractors, supplementing chapter 11 of Title 34 of the Revised Statutes, and making an appropriation.

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

1. This act shall be known and may be cited as the “New Jersey Private Contractor Registration Act.”

2. As used in this act:

“Commissioner” means the Commissioner of Labor and Workforce Development or the commissioner’s duly authorized representative.

“Department” means the Department of Labor and Workforce Development.

“Director” means the Director of the Division of Wage and Hour Compliance in the Department of Labor and Workforce Development.

“Private construction work” means all building or work on a building, structure, or improvement of any type, as well as related building or work on a building, done within the State under an express or implied contract on behalf of another entity or individual, and does not include “public work” as that term is defined in section 2 of P.L.1963, c.150 (C.34:11-56.26), or “home improvement,” as that term is defined in section 2 of P.L.2004, c.16 (C.56:8-137).

“Private contractor” means a person, partnership, association, joint stock company, trust, corporation, or other legal business entity or successor thereof that engages in private construction work within the State, under an express or implied contract on behalf of another entity or individual, and is not performing “public work” as that term is defined in section 2 of P.L.1963, c.150 (C.34:11-56.26), or is not engaged in “home improvement” as that term is defined in section 2 of P.L.2004, c.16 (C.56:8-137), and includes any subcontractor or lower tier subcontractor of a contractor as defined herein.

“Worker” includes a laborer, mechanic, skilled or semi-skilled laborer and apprentices or helpers employed by any private contractor or subcontractor and engaged in the performance of private construction work in the State, regardless of whether their work becomes a component part thereof, but does not include material suppliers or their employees who do not perform services at the job site.

3. a. No private contractor or subcontractor shall engage in private construction work, unless the private contractor or subcontractor is registered pursuant to this act.

b. No private contractor shall engage the services of a subcontractor to perform private construction work, unless the subcontractor is a private contractor registered pursuant to this act.

4. a. A private contractor shall register in writing with the department on a form provided by the commissioner. The form shall require the following information:

(1) the name, principal business address, and telephone number of the private contractor;

(2) whether the private contractor is a corporation, partnership, sole proprietorship, or other form of business entity;

(3) if the private contractor's principal business address is not within the State, the name and address of the private contractor's custodian of records and agent for service of process in the State;

(4) the name and address of each person with a financial interest in the private contractor and the percentage interest, except that if the private contractor is a publicly-traded corporation, the private contractor shall supply the names and addresses of the corporation's officers;

(5) the private contractor's tax identification number and unemployment insurance registration number;

(6) a certification form provided by the commissioner, with documentation satisfactory to the commissioner, that the private contractor has all valid and effective licenses, registrations or certificates required by State law, including registrations or certifications required to do business in the State of New Jersey;

(7) disclosure of any administrative merits determination, arbitral award or decision, or civil judgment, for violations of any of the following federal and State labor laws or executive orders, which may be amended by the commissioner at the commissioner’s discretion:

(a) the “Fair Labor Standards Act of 1938,” (29 U.S.C. s.201 et seq.);

(b) the “New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11-56a et seq.);

(d) the federal Occupational Safety and Health Act of 1970 (29 U.S.C. s.651 et seq.);

(e) the "New Jersey Public Employees' Occupational Safety and Health Act," P.L.1983, c.516 (C.34:6A-25 et seq.);

(f) the Migrant and Seasonal Agricultural Worker Protection Act, Pub.L.97-470 (29 U.S.C. s.1801 et seq.);

(g) the New Jersey Employer-Employee Relations Act, P.L.1941, c.100 (C.34:13A-1 et seq.);

(h) the Davis-Bacon Act as amended (40 U.S.C. ss.276a to 276a-5);

(i) the “New Jersey Prevailing Wage Act,” P.L.1963, c.150 (C.34:11-56.25 et seq.);

(j) the “The Public Works Contractor Registration Act,” P.L.1999, c.238 (C.34:11-56.48 et seq.);

(k) the McNamara-O'Hara Service Contract Act of 1965 (41 U.S.C. s.6701 et seq.);

(l) Exec. Order No. 11246, as amended, 30 FR 12319, 30 FR 12935, 3 CFR, (1964–1965) (42 U.S.C. 2000e note; relating to equal employment opportunity);

(m) section 503 of the federal Rehabilitation Act of 1973, (29 U.S.C. s.793);

(n) the federal Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (38 U.S.C. s.4212);

(o) the federal “Family and Medical Leave Act of 1993,” Pub.L.103-3 (29 U.S.C. s.2601 et seq.);

(p) the "Family Leave Act," P.L.1989, c.261 (C.34:11B-1 et seq.), the "Temporary Disability Benefits Law," P.L.1948, c.110 (C.43:21-25 et al.), and P.L.2008, c.17 (C.43:21-39.1 et seq.);

(q) Title VII of the Civil Rights Act of 1964, Pub.L. 88-352 (42 U.S.C. s.2000e et seq.);

(r) the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-1 et seq.);

(s) the federal "Americans with Disabilities Act of 1990" (42 U.S.C. s.12101 et seq.);

(t) the federal Age Discrimination in Employment Act of 1967 (29 U.S.C. s.621 et seq.);

(u) Exec. Order No. 13658, 86 Fed. Reg. 51683 (September 15, 2021); and

(v) P.L.2018, c.10 (C.34:11D-1 et seq.); and

(8) any other relevant and appropriate information as determined by the commissioner.

b. At the time of registration, and subsequently upon request, the private contractor shall submit to the commissioner documentation demonstrating that the private contractor has worker's compensation insurance coverage as required by law.

c. All registration and payment under this act shall be completed through the department’s online applications and website. The department shall accept manual registration and payment only under exceptional circumstances.

5. a. (1) The private contractor shall pay an initial non-refundable registration fee of $750 to the commissioner. Upon successful completion of an initial two year registration, a private contractor shall thereafter continue to register for a two-year period and pay a non-refundable registration fee of $500. Reduced fee schedules based upon an entity’s annual revenue or non-profit status may be prescribed by regulation.

(2) A private contractor who is performing private construction work on the effective date of this act shall submit the registration application form and fee to the commissioner within six months of the effective date of this act.

(3) Registration fees collected pursuant to this act shall be applied toward the enforcement and administration costs of Division of Wage and Hour Compliance in the Department of Labor and Workforce Development.

b. Upon receipt of the fee, form, and documentation required by this act, the commissioner shall issue a certificate of registration to the private contractor. A registration certificate shall be valid for two calendar years from the date of registration. Registrations shall be renewed not less than 30 days before the expiration date of the immediately preceding registration.

c. The commissioner shall create, maintain, and distribute an informational list of all currently registered private contractors. The commissioner shall prominently display the informational list on a website maintained by the department.

d. Each private contractor shall submit to the hiring entity the certificates of registration for all subcontractors. Applications for registration shall not be accepted as a substitute for a certificate of registration for the purposes of this subsection.

6. a. A private contractor shall be guilty of a disorderly persons offense if the contractor:

(1) willfully hinders or delays the commissioner in the performance of the commissioner’s duties in the enforcement of this act;

(2) fails to make, keep, and preserve any records as required under the provisions of this act;

(3) falsifies any of those records, or refuses to make any of those records accessible to the commissioner upon demand;

(4) refuses to furnish a sworn statement of those records or any other information required for the enforcement of this act to the commissioner upon demand;

(5) has violated State wage, benefit, and tax laws as defined in section 1 of P.L.2009, c.194 (C.34:1A-1.11);

(6) has violated State or federal labor laws or executive orders, as defined section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill); or

(7) otherwise violates any provision of this act.

b. As an alternative, the commissioner may, after providing the private contractor with notice of any alleged violation of this act, and with an opportunity to request a hearing before the commissioner or the commissioner’s designee:

(1) deny renewal, revoke or suspend the registration of a private contractor for a period of not more than five years; or

(2) require a private contractor, as a condition of initial or continued registration, to provide a surety bond payable to the State. The surety bond shall be for the benefit of workers damaged by any failure of a private contractor to pay wages or benefits pursuant to State wage, benefit, and tax laws, or otherwise to comply with the provisions of this act. The surety bond shall be in the amount and form that the commissioner deems necessary for the protection of the private contractor's workers, but shall not exceed $10,000 per worker. The surety bond shall be issued by a surety that meets the requirements of N.J.S.2A:44-143.

c. Administrative fees and penalties may also be imposed, up to or equivalent to the levels prescribed in section 11 of P.L.1963, c.150 (C.34:11-56.35).

d. The director may order the immediate suspension of a private contractor’s registration, prior to a formal hearing on the revocation of the private contractor’s registration pursuant to subsection b. of this section, if the director determines that ordering an immediate suspension is in the public interest and provided that the private contractor is afforded an opportunity to contest the immediate suspension in the following manner:

(1) the director shall notify the private contractor in writing of the immediate revocation and the private contractor’s rights under this subsection d.;

(2) the private contractor may notify the director of its request for an opportunity to be heard and contest the immediate suspension in writing within 72 hours of its receipt of immediate suspension notification;

(3) within seven business days of receipt of the notification from the private contractor pursuant to paragraph (2) of this subsection, the director shall grant the private contractor a hearing to contest the immediate suspension. The director shall permit the private contractor to present evidence at the hearing;

(4) the director shall issue a written decision within five business days of the hearing either upholding or reversing the private contractor’s immediate suspension. The decision shall include the grounds for upholding or reversing the private contractor’s immediate suspension; and

(5) if the private contractor disagrees with the written decision, the private contractor may appeal the decision to the commissioner, in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

e. The director may impose an immediate suspension on a private contractor as set forth in subsection d. of this section, based upon a rebuttable presumption of an interest held in another private contractor who has failed to comply with the terms of this act, the “New Jersey Prevailing Wage Act,” P.L.1963, c.150 (C.34:11-56.25 et seq.), or the “Contractors' Registration Act,” P.L.2004, c.16 (C.56:8-136 et seq.). This rebuttable presumption shall be based upon certain shared capacities or characteristics with a private contractor whose registration has been previously revoked, and shall incorporate the criteria as set forth in section 14 of P.L.1963, c.150 (C.34:11-56.38). The director shall provide the private contractor with a notice of intent to suspend and the private contractor may request a hearing before the Director of the Division of Wage and Hour Compliance within 72 hours of the receipt of the notice of intent to suspend in order to present evidence expeditiously in support of the position that the suspension should not be imposed. The suspension shall not take effect prior to the expiration of the 72-hour opportunity to request a hearing. If such a request is not made, the suspension shall take effect at the end of the 72-hour period. If such a request is made, the suspension shall take effect only after the director conducts the hearing.

f. If the director orders the immediate suspension of a private contractor’s registration pursuant to subsection b. of this section, the violation shall have no effect on the registration of any private contractor or subcontractor, regardless of tier, in the contractual chain with the suspended private contractor.

Upon suspension, the department shall contact the general contractor on any identifiable job sites where the suspended contractor was engaged in work. That notification shall provide the general contractor 72 hours from the time of notification to remove the suspended contractor from the site. If a general contractor continues to utilize a suspended contractor after receiving written notification from the department, then the general contractor shall be considered to be in violation of the act and subject to fines and penalties contained herein.

7. The commissioner may adopt regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) to carry out the purposes of this act.

8. There is appropriated from the General Fund to the Department of Labor and Workforce Development, $2,000,000, to effectuate the provisions of this act.

9. This act shall take effect on the first day of the sixth month next following enactment, except that the commissioner may take any anticipatory administrative action in advance thereof as may be necessary for the implementation of this act.

STATEMENT

This bill establishes the “New Jersey Private Contractor Registration Act.” The bill prohibits contractors and subcontractors from engaging in private construction work, unless they are registered pursuant to the bill.

Under the bill, “private construction work” means all building or work on a building, structure, or improvement of any type, as well as related building or work on a building, done within the State under an express or implied contract on behalf of another entity or individual. Private construction work does not include “public work” as that term is defined in the prevailing wage law, or “home improvement,” as that term is defined in the “Contractors' Registration Act.”

As part of the registration, the contractor is required to include the following information:

(1) the name, principal business address and telephone number of the private contractor;

(2) whether the private contractor is a corporation, partnership, sole proprietorship, or other form of business entity;

(4) the name and address of each person with a financial interest in the private contractor and the percentage interest, except that if the private contractor is a publicly-traded corporation, the private contractor is required to supply the names and addresses of the corporation's officers;

(5) the private contractor's tax identification number and unemployment insurance registration number;

(7) disclosure of any administrative merits determination, arbitral award or decision, or civil judgment, for violations of any of the certain federal and State labor laws or executive orders; and

(8) any other relevant and appropriate information as determined by the commissioner.

The bill requires a private contractor to pay an initial non-refundable registration fee of $750 to the commissioner. Upon successful completion of an initial two year registration, a private contractor is thereafter required to register for a two-year period and pay a non-refundable registration fee of $500. The bill provides that reduced fee schedules based upon an entity’s annual revenue or non-profit status may be prescribed by regulation.

The bill provides for penalties and fines for noncompliance with its provisions, including but not limited to the suspension of a contractor’s registration. The bill appropriates from the General Fund to the Department of Labor and Workforce Development $2,000,000 to effectuate the provisions of the bill.