A4140

An Act concerning certain collective bargaining agreements and subcontracting and supplementing P.L.1941, c.100 (C.34:13A-1 et seq.).

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

1. As used in this act:

“Employee” means any employee, whether employed on a full or part-time basis, of an employer.

“Employer” means any: local or regional school district; county vocational school district; county special services school district; jointure commission; educational services commission; school district under partial or full State intervention, charter school; county college, State college, college or university under the authority of the Commission on Higher Education; or board or commission under the authority of the Commissioner of Education or the State Board of Education.

“Subcontracting” means any action, practice, or effort by an employer which results in any services or work performed by any of its employees being performed or provided by any other person, vendor, corporation, partnership, or entity.

“Subcontracting agreement” means any agreement or arrangement entered into by an employer to implement subcontracting, but shall not include any shared services agreement entered into pursuant to the “Uniform Shared Services and Consolidation Act,” P.L.2007, c.63 (C.40A:65-1 et seq.), or any contract to provide services to nonpublic schools through State or federal funds, or any contract in which it is required by law that workers be paid the prevailing wage determined by the Commissioner of Labor and Workforce Development pursuant to the provisions of the “New Jersey Prevailing Wage Act,” P.L.1963, c.150 (C.34:11-56.25 et seq.).

2. Except for actions of an employer expressly required or prohibited by the provisions of P.L.1941, c.100 (C.34:13A-1 et seq.), all aspects of and actions relating to or resulting from an employer’s decision to subcontract including, but not limited to, whether or not severance pay is provided, shall be mandatory subjects of negotiations.

3. No employer shall enter into a subcontracting agreement which involves or affects the bargaining unit work performed by the members of a bargaining unit covered by a collective bargaining agreement with the majority representative while that agreement, or a successor agreement, is in effect. No employer shall enter into a subcontracting agreement for a period following the term of such a collective bargaining agreement or successor agreement unless the employer:

a. Provides written notice to the majority representative of each collective bargaining unit which may be affected by the subcontracting agreement and to the New Jersey Public Employment Relations Commission, not less than 90 days before the employer requests bids, or solicits contractual proposals for the subcontracting agreement; and

b. Has offered the majority representative of each collective bargaining unit which may be affected by the subcontracting agreement the opportunity to meet and consult with the employer to discuss the decision to subcontract, and the opportunity to engage in negotiations over the impact of the subcontracting. The employer’s duty to negotiate with the majority representatives of the affected bargaining units shall not preclude the employer’s right to subcontract upon the expiration of any existing collective agreement or the expiration of a successor agreement, provided that the employer has provided the majority representative of the members of the bargaining unit with the information required by subsection d. of section 4 of this act and provided at least 90 days for the majority representative to engage in the process provided by this section.

4. In addition to the requirements of section 3 of this act, no employer covered by this act shall enter a subcontracting agreement unless the other person, vendor, corporation, partnership, or entity which will provide the services included in the subcontracting agreement submits a bid or proposal which includes but is not limited to the following information:

a. Evidence of liability insurance in scope and amount equivalent to the liability insurance that the employer maintains to cover its liability for personal injury claims made against it;

b. A list of the number of employees who will provide the subcontracted services, the job classifications of those employees, and the wages the third party will pay those employees;

c. A minimum three-year cost projection, using generally accepted accounting principles, and which the third party is prohibited from increasing if the bid or proposal is accepted by the employer, for each and every expenditure category and account for performing the subcontracted services;

d. Composite information about the criminal and disciplinary records, including alcohol or other substance abuse, Department of Children and Families complaints and investigations, traffic violations, and license revocation or any other licensure problem, of any employees who may perform the services, provided that the individual names and other identifying information of employees need not be provided with the submission of the bid, but must be made available upon request of the employer; and

e. An affidavit, notarized by the president or chief executive officer of the third party, that each of its employees has completed a criminal background check as required by section 1 of P.L.1986, c.116 (C.18A:6-7.1) three months prior to submission of the bid, provided that the results of such background checks need not be provided with the submission of the bid, but must be made available upon request of the employer.

5. Each employee replaced or displaced as the result of a subcontracting agreement shall retain all previously acquired seniority during that period and shall have recall rights whenever the subcontracting terminates.

6. An employer who violates any provision of this act shall be deemed to have committed an unfair practice, and any majority representative organization affected by the violation may file an unfair practice charge with the New Jersey Public Employment Relations Commission. If the organization prevails on the charge, the commission may provide a remedy including, but not limited to, reinstatement, back pay, back benefits, back emoluments, tenure and seniority credit, and any other relief that the commission deems appropriate to effectuate the purposes of this act.

7. Nothing in this act shall be construed as authorizing subcontracting which is not otherwise authorized by law. Nothing in this act shall be construed as restricting or limiting any right established or provided for employees by section 7 of P.L.1968, c.303 (C.34:13A-5.3). The purpose of this act is to provide rights in addition to those provided in that section.

8. This act shall take effect immediately.

STATEMENT

This bill supplements the “New Jersey Employer-Employee Relations Act” to prohibit an employer from entering into a subcontracting agreement which may affect the employment of any employees in a collective bargaining unit during the term of a collective bargaining agreement covering those employees. The bill defines “employer” as any local or regional school district, county vocational school district, county special services school district, jointure commission, educational services commission, school district under partial or full State intervention, charter school, any county college, State college, college or university under the authority of the Commission on Higher Education, or any board or commission under the authority of the Commissioner of Education or the State Board of Education. The employer is permitted to enter into a subcontracting agreement for a period following the term of a current collecting bargaining agreement only if the employer:

1. Provides written notice both to the majority representative of employees and the Public Employment Relations Commission at least 90 days prior to any effort by the employer to seek the subcontracting agreement; and

2. Offers the majority representative the opportunity to meet and discuss the decision to subcontract and negotiate over its impact.

The bill requires the disclosure of various information regarding the subcontractor including proof of required insurance, a cost projection of at least three years, and criminal and disciplinary records and other information about subcontractor employees.

The bill makes all actions of an employer regarding subcontracting, except for those expressly required or prohibited by the bill, mandatory subjects of negotiations.

Each employee replaced or displaced because of a subcontracting agreement is deemed by the bill to be on a leave of absence during the period of the subcontracting and therefore retains all previously acquired seniority and has recall rights when the subcontracting terminates.

The bill provides that an employer who violates its provisions has committed an unfair practice, and may be subject to unfair practice charge with the Public Employment Relations Commission, under which the employee may be entitled to remedies including reinstatement, back pay, back benefits, back emoluments, tenure and seniority credit, and attorney's fees.