A3415

An Act concerning violations of the child labor law and amending and supplementing P.L.1940, c.153.

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

1. Section 19 of P.L.1940, c.153 (C.34:2-21.19) is amended to read as follows:

19. a. Whoever employs or permits or suffers any minor to be employed or to work in violation of [this act] the child labor law, P.L.1940, c.153 (C.34:2-21.1 et seq.), or of any regulation adopted, or order or ruling issued, under the provisions of [this act] that law, or obstructs the Department of Labor and Workforce Development, its officers or agents, or any other person authorized to inspect places of employment under [this act] that law, and whoever, having under his control or custody any minor, permits or suffers him to be employed or to work in violation of [this act] that law, shall be guilty of an offense[. If] and subject to the following penalties:

(1) except as provided in paragraphs (2) and (3) of this subsection a., and except as provided by section 2 of P.L. , c. (C. )(pending before the Legislature as this bill), if a defendant acts knowingly, an offense under this section shall be a crime of the fourth degree subject to the penalties for a crime of the fourth degree provided by N.J.S. 2C:43-3, N.J.S.2C:43-6 and N.J.S.2C:44-1, except that the minimum fine shall be $500 for an initial violation and $1,000 for each subsequent violation. Otherwise it shall be a disorderly persons offense and the defendant shall, upon conviction for a violation, be punished by a fine of not less than $100 nor more than $2,000 for an initial violation and not less than $200 nor more than $4,000 for each subsequent violation. Each day during which any violation of [this act] that law continues shall constitute a separate and distinct offense, and the employment of any minor in violation of [the act] that law shall with respect to each minor so employed, constitute a separate and distinct offense;

(2) the offense shall be a crime of the third degree and subject to the penalties for a crime of the third degree provided by N.J.S. 2C:43-3, N.J.S.2C:43-6 and N.J.S.2C:44-1 (except that the minimum fine shall be $1,000 for an initial violation and $2,000 for each subsequent violation), if the defendant:

(a) employs a minor who is not registered and authorized to work as required by section 6 of P.L.2022, c.63 (C.34:2-21.1a);

(b) employs a minor during days or weeks in which school is in session at times or for an amount of time which is in violation of the provisions of the child labor law, P.L.1940, c.153 (C.34:2-21.1 et seq.), or any regulation adopted, or order or ruling issued, pursuant to that law: or

(c) employs the minor to work with equipment, or in occupations or workplaces, which are prohibited by the child labor law, P.L.1940, c.153 (C.34:2-21.1 et seq.), or any regulation adopted, or order or ruling issued, pursuant to that law; and

(3) the offense shall be a crime of the second degree and employer shall be subject to the penalties for a crime of the second degree provided by N.J.S.2C:43-3, N.J.S.2C:43-6 and N.J.S.2C:44-1 (except that the minimum fine shall be $4,000), if, in the course of any employment which is in violation of the provisions of the child labor law, P.L.1940, c.153 (C.34:2-21.1 et seq.), or any regulation adopted, or order or ruling issued, pursuant to that law, a minor suffers an accident, occupational disease, or death compensable under the workers’ compensation law, R.S.34:15-1 et seq., in an amount which, pursuant to R.S.34:15-10, is double the amount payable under the schedules provided in R.S.34:15-12 and R.S.34:15-13.

An employer who is convicted of a crime of the third or second degree pursuant to this subsection a. shall have the registration made pursuant to section 6 of P.L.2022, c.63 (C.34:2-21.1a) suspended for not less than one year if the employer is convicted of a crime of the third degree, and not less than two years if the employer is convicted of a crime of the second degree, and the employer shall be barred from employing minors during the time of the suspension.

The department shall prepare a written statement of the requirements of the child labor law, P.L.1940, c.153 (C.34:2-21.1 et seq.), which includes a comprehensive description of all penalties and sanctions for violations of that law as provided by this section and section 2 of P.L. , c. (C. )(pending before the Legislature as this bill) indicating which violations are subject to which penalties and sanctions. The statement shall be provided to an employer who applies to register and be authorized to employ minors pursuant to section 6 of P.L.2022, c.63 (C.34:2-21.1a) when the application is made if it is made after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill). If an application is made after the effective date, the department shall not provide the registration and authorization until the employer provides a written acknowledgement of receiving the statement and a written affirmation that the employer understands and agrees to comply with those requirements. If an employer is already registered as of the effective date, the department shall revoke the registration and authorization unless the employer provides to the department the acknowledgment and affirmation not more than 20 business days after receiving the statement from the department, and the revocation shall remain in effect until the employer provides the required acknowledgment and affirmation. The department shall, not later than 90 days after the effective date, provide the statement to all employers who were already registered as of the effective date. The department shall, for each employer, keep on file with the registration a copy of the acknowledgement and affirmation. If the employer violates a provision of the child labor law described in the statement, the violation shall be regarded, for the purposes of this section, as a violation made knowingly.

Any employer who employs one or more minors without obtaining the registration required by section 6 of P.L.2022, c.63 (C.34:2-21.1a), or who employs one or more minors during the period that the employer’s registration is suspended or revoked pursuant to this subsection a., shall be barred from employing minors for a period of three years in addition to any other period of debarment.

b. As an alternative to or in addition to any other sanctions provided by law for violations of the child labor law, P.L.1940, c.153 (C.34:2-21.1 et seq.) or of any regulation adopted, or order or ruling issued, pursuant to that law, or for any retaliatory action taken against an employee in violation of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), when the Commissioner of Labor and Workforce Development finds that an individual has [violated that act] committed the violation, the commissioner is authorized to assess and collect administrative penalties of not more than $500 for a first violation, not more than $1,000 for a second violation, and not more than $2,500 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.). 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 and Workforce Development 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 deposited in the Child Labor Law Enforcement Trust Fund established pursuant to subsection c. of this section.

c. There is established in the Department of Labor and Workforce Development the Child Labor Law Enforcement Trust Fund. All moneys in the fund shall be applied by the department toward the enforcement of the provisions of P.L.l940, c.153 (C.34:2-21.1 et seq.) and to disseminate information and publicity regarding those provisions to employers, employer organizations, employees, unions, and teachers, counselors, social workers and other professionals engaged in work involving the welfare of children.

d. There is established a Child Labor Law Enforcement Advisory Board to advise the Commissioner of Labor and Workforce Development, and issue an annual report, regarding the use of moneys from the Child Labor Law Enforcement Trust Fund and other issues the board deems appropriate concerning child labor, including the impact of excessive or hazardous work on the educational success, health and general well-being of children. The board shall consist of the commissioner or his designee, who shall serve as the chair, and seven members appointed by the commissioner as follows: two members representing organizations of employers in industries with significant numbers of employees who are minors, two members representing labor unions in industries with significant numbers of employees who are minors, one member representing an organization of school administrators, one member representing an organization of school employees, and one member who is an individual with expertise on the impact of excessive or hazardous work on the educational success, health, and general well-being of children. Members appointed by the commissioner shall be appointed for two-year terms and may be appointed for any number of terms. Members shall serve without compensation, but shall be reimbursed for necessary expenses incurred in the performance of their duties. Action may be taken by the board by an affirmative vote of a majority of its members. The first annual report shall be issued not later than 12 months after the effective date of P.L. , c. (C. )(now pending as this bill). Each annual report may include recommendations to enhance the enforcement and publicizing of the provisions of the child labor law, P.L.l940, c.153 (C.34:2-21.1 et seq.). The advisory board shall have access to reports, data and other information regarding child labor in the possession of the department and assistance from department personnel as required to perform its duties.

(cf: P.L.2005, c.167)

2. (New section) Any employer who takes a retaliatory action against an employee by discharging or in any other manner discriminating against the employee because the employee has made a complaint to that employer, the commissioner, or an authorized representative of the employee, that the employer has violated the provisions of the child labor law, P.L.1940, c.153 (C.34:2-21.1 et seq.), or because the employee has caused to be instituted or is about to cause to be instituted any proceeding under, or related to, that law, or because that employee has testified or is about to testify in any proceeding under, or related to, that law, or because the employee has informed any employee of the employer about rights under that law or other State law regarding wages and hours worked or other conditions of employment, shall be guilty of a disorderly persons offense and, upon conviction for a first violation, shall be punished by a fine of not less than $500 nor more than $1,000 or by imprisonment for not less than 10 nor more than 90 days or by both the fine and imprisonment and, upon conviction for a second or subsequent violation, be punished by a fine of not less than $1,000 nor more than $2,000 or by imprisonment for not less than 10 nor more than 100 days or by both the fine and imprisonment. Each week, in any day of which any violation of the provisions of this section continues, shall constitute a separate and distinct offense. In the case of a discharge or other discriminatory action against the employee which is in violation of this section, the employer shall also be required to offer reinstatement in employment to the discharged employee and to correct the discriminatory action, and also to pay to the employee, in full, all wages lost as a result of that discharge or discriminatory action, plus liquidated damages equal to not more than 200 percent of the wages due, under penalty of contempt proceedings. Taking an adverse action against an employee within 90 days of the employee filing a complaint with the commissioner or a claim or action being brought by or on behalf of the employee in a court of competent jurisdiction for a violation of the child labor law shall be considered presumptive evidence that the employer's action was knowingly taken in retaliation against the employee. An employee complaint or other communication need not make explicit reference to that law or other State law to trigger the protections of this section.

3. This act shall take effect on the 90th day after the date of enactment, except that the Commissioner of Labor and Workforce Development shall take, in advance, any anticipatory administrative action necessary for the implementation of this act.

STATEMENT

The purpose of this bill is to protect the welfare of working minors by helping to implement the goal of the child labor law of preventing excessive or hazardous work from interfering with their educational success, health, or general well-being. The bill strengthens the enforcement of the State’s child labor law by providing:

1. An increase in the minimum fines for a knowing violation of the law to $500 for an initial violation and $1,000 for each subsequent violation, the same as the minimum fines currently imposed for knowing violations of the wage payment, minimum wage, and prevailing wage laws.

2. That it is a third degree crime, with minimum fines of $1,000 for an initial violation and $2,000 for subsequent violations, for an employer to employ a minor not registered and authorized to work, to employ a minor during days or weeks in which school is in session at times or for an amount of time not allowed by the child labor law, or to employ a minor in hazardous work with equipment or in occupations or workplaces prohibited by that law.

3. That an employer is guilty of a second degree crime, with a minimum fine of $4,000, if a child, while employed by the employer in violation of the child labor law, suffers any injury, occupational disease, or death which is currently compensable at twice the regular rate under the workers’ compensation law.

4. That an employer who is convicted of a crime of the third or second degree under the bill will have its registration and authorization to employ minors suspended for not less than one year if convicted of a third degree crime, and not less than two years if convicted of a second degree crime.

5. That an employer who applies for registration and authorization to employ minors after the effective date of the bill is required to acknowledge receipt of a written statement from the Department of Labor and Workforce Development of the requirements of the child labor law and provide a written affirmation that the employer understands and agrees to comply with those requirements before being registered and authorized to employ minors. An employer who was already registered as of the effective date of the bill is required to provide the acknowledgement and affirmation not more than 10 business days after receiving the statement from the department, or have the registration revoked until the employer provides the acknowledgement and affirmation.

6. That an employer who employs minors without obtaining the required registration, or who employs minors during the period in which the employer’s registration is suspended or revoked, will be barred from employing minors for a period of three years in addition to any other period of debarment.

7. That an employer who takes retaliatory actions against an employee for making complaints or initiating actions regarding violations of the child labor law is guilty of disorderly persons offense punishable by specified fines and penalties, and required to pay lost wages and liquidated damages of up to 200% of the lost wages, and offer reinstatement if the employee was discharged in retaliation. These remedies are identical to the anti-retaliation provisions of the wage payment and minimum wage laws.