Chapter 066. Prevailing Wages and Safety Training for Construction Work on Public Utilities

Subchapter 1. GENERAL PROVISIONS

Section 12:66-1.1 Purpose

(a) The purpose of this chapter is to establish prevailing wage levels for workers employed by any contractor engaged in construction work on a public utility.

(b) This chapter also establishes that any contractor referred to in (a) above shall employ, on the site, only individuals who have successfully completed any Occupational Safety and Health Act (OSHA)-certified safety training required for work to be performed on that site.

Section 12:66-1.2 Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

“Act” means P.L. 2007, c. 343 and the rules promulgated in accordance therewith, that is this chapter.

“Commissioner” means the Commissioner of the Department of Labor and Workforce Development or his or her duly authorized designee.

“Construction work on a public utility” means, in connection with the construction of any public utility in the State of New Jersey, construction, reconstruction, installation, demolition, restoration and alteration of facilities of the public utility. “Construction work on a public utility” shall not be construed to include operational work, including the work of flaggers, snow plowing, vegetation management in and around utility rights of way, mark outs, janitorial services, landscaping, the work of leak surveyors, meter work and miscellaneous repairs customarily and historically performed in-house by the employees of the public utility. “Construction work on a public utility” shall also not be construed to include any construction, reconstruction, installation, demolition, restoration or alteration of facilities on property owned by a private developer, including facilities located off-site pursuant to a subdivision or site plan approval received by a private developer, notwithstanding that ownership of the facilities being constructed, reconstructed, installed, demolished, restored or altered on the property owned by the private developer will ultimately be transferred to a public utility or a public body.

“Contractor” means a person, partnership, association, joint stock company, trust, corporation or other legal business entity or successor thereof, that enters into a contract with a public utility to engage in construction work on a public utility and includes any subcontractor or lower-tier subcontractor of a contractor, as defined in this section.

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

“Payroll record” means a form satisfactory to the Commissioner, wherein is shown worker information, such as name, address, social security number and job classification, together with actual hourly rate of pay, actual daily, overtime and weekly hours worked in each job classification, gross pay, itemized deductions and net pay paid to the worker; such record shall also include:

1. Any fringe benefits paid to approved plans, funds or programs on behalf of the worker; and

2. Fringe benefits paid in cash to the worker.

“Public utility” means autobuses; bridge companies; canal companies; electric light, heat and power companies; ferries and steamboats; gas companies; pipeline companies; railroads; sewer companies; steam and water power companies; street railways; telegraph and telephone companies; tunnel companies; and water companies.

“Subcontractor” means any subcontractor or lower-tier subcontractor of a contractor.

Subchapter 2. CONTRACTOR AND PUBLIC UTILITY RESPONSIBILITIES

Section 12:66-2.1 Contract provisions

(a) The contractor and the public utility shall ensure that each contract entered into between a contactor and a public utility for construction work on a public utility shall contain the following provisions:

1. A provision setting forth the prevailing wages that are applicable to the workers employed in the performance of the contract;

2. A provision stating that the workers employed in the performance of the contract shall be paid not less than the applicable prevailing wages, as set forth in the contract; and

3. A provision stating that the contractor will employ on the work-site(s) only individuals who have successfully completed all OSHA-certified safety training, if any, required by either the Federal Occupational Safety and Health Administration, the public utility or the contractor, as a prerequisite for the particular work to be performed on the given work-site(s).

Section 12:66-2.2 Multiple classes of work

(a) Where, during a given workweek, a worker performs work in multiple job classifications and two or more prevailing wages are applicable to the separate classes of work performed, the contractor must pay the worker the highest of such prevailing wages for all hours worked in the workweek, unless the contractor‘s records clearly delineate which hours of work for the given worker in the given workweek were spent engaged in each separate class of work.

(b) Where a worker is employed for a portion of a given workweek in work not subject to the Act, which work would otherwise be compensated at a rate lower than the prevailing wage to which a worker is entitled for covered work performed during the workweek, the contractor must pay the worker the higher prevailing wage for all work performed during the workweek, including work not subject to the Act, unless the contractor‘s records clearly delineate which hours of work for the given worker in the given workweek were spent engaged in covered work and which hours were spent engaged in work not subject to the Act.

Section 12:66-2.3 Collective bargaining rights

Where a collective bargaining agreement has established a higher rate of compensation than the applicable prevailing wage, the affected worker or workers shall receive the higher rate of compensation set forth in the collective bargaining agreement.

Section 12:66-2.4 Records

(a) Each contractor shall keep an accurate payroll record for each worker performing construction work on a public utility.

(b) Each contractor shall preserve the records maintained under (a) above for a period of two years from the date of payment of the wages.

Subchapter 3. INSPECTIONS

Section 12:66-3.1 Right to enter and inspect

(a) The Commissioner shall have the authority to:

1. Inspect and copy books, registers, payrolls or other records that relate to or affect wages, hours and other conditions of work for workers who perform construction work on a public utility;

2. Question privately, any employee or managerial executive of the contractor, including workers who perform construction work on a public utility, to determine whether they are aware of violations of the Act; and

3. Require contractors to submit written statements, including sworn statements, concerning wages, hours, names, addresses and other information pertaining to the contractor‘s workers and their work as the Commissioner may deem necessary or appropriate.

Subchapter 4. VIOLATIONS, PENALTIES AND FEES

Section 12:66-4.1 Violations of the Act

(a) Violations of the Act shall occur when a contractor:

1. Willfully hinders or delays the Commissioner in the performance of his or her duties in the enforcement of the Act;

2. Fails to make, keep and preserve any records as required under the provisions of the Act;

3. Falsifies any such record;

4. Refuses to make any such record accessible to the Commissioner upon demand;

5. Refuses to furnish a sworn statement of such record or any other information required for the proper enforcement of the Act to the Commissioner on demand;

6. Pays or agrees to pay wages at a rate less than the prevailing wage applicable under the Act;

7. Requests, demands or receives, either for himself, herself or any other person, either before or after a worker is employed in the performance of construction work on a public utility at a specified rate of wages that such worker forego, pay back, return, donate, contribute or give any part, or all, of his or her wages or thing of value to any person upon the statement, representation or understanding that failure to comply with such request or demand will prevent such worker from procuring or retaining employment; or

8. Otherwise violates any provision of the Act or of any order issued under the Act.

(b) A contractor who violates any provision of the Act shall be guilty of a disorderly persons offense and shall, upon conviction therefore:

1. Be fined not less than $ 100.00, nor more than $ 1,000;

2. Be imprisoned for not less than 10, nor more than 90 days; or

3. Be subject to both the fine and imprisonment.

(c) Each week, in any day of which a worker is paid less than the rate applicable to that worker under the Act and each worker so paid, shall constitute a separate offense.

Section 12:66-4.2 Administrative penalties

(a) As an alternative to or in addition to any other sanctions provided for in N.J.A.C. 12:66-4.1, when the Commissioner finds that a contractor has violated the Act, the Commissioner may assess and collect administrative penalties in the amounts that follow:

1. First violation—not more than $ 2,500.

2. Second violation and subsequent violations—not more than $ 5,000.

(b) No administrative penalty shall be levied pursuant to this subchapter unless the Commissioner provides the alleged violator with notification by certified mail of the violation and the amount of the penalty and an opportunity to request a formal hearing. A request for a formal hearing must be received within 15 working days following the receipt of the notice.

1. If a hearing is not requested, the notice shall become a final order upon the expiration of the 15-working-day period following receipt of the notice.

2. If a hearing is requested, the Commissioner shall issue a final order upon such hearing and a finding that a violation has occurred.

3. All penalties and fees, along with wages due, shall be paid within 30 days of the date of the final order. Failure to pay such wages, fees and/or penalties shall result in a judgment being obtained in a court of competent jurisdiction.

4. All payments shall be made payable to the “Commissioner of Labor and Workforce Development." All payments shall be made by certified check or money order, or payable in a form suitable to the Commissioner.

(c) In assessing an administrative penalty pursuant to this chapter, the Commissioner shall consider the following factors, where applicable, in determining what constitutes an appropriate penalty for the particular violation(s):

1. The seriousness of the violation;

2. The past history of previous violations by the contractor;

3. The good faith of the contractor;

4. The size of the contractor‘s business; and

5. Any other factors that the Commissioner deems to be appropriate in determining the penalty to be assessed.

Section 12:66-4.3 Administrative fees

(a) The Commissioner may supervise the payment of amounts due to workers under the Act, and the contractor may be required to make these payments to the Commissioner to be held in a special account in trust for the worker, and paid on order of the Commissioner directly to the worker or workers affected.

(b) The contractor shall pay the Commissioner an administrative fee on all payments due to workers pursuant to the Act.

Table 4.3(c)

Schedule of Administrative Fees

1. First violation—10 percent of the amount of any payment to the Commissioner pursuant to the Act.

2. Second violation—18 percent of the amount of any payment made to the Commissioner pursuant to the Act.

3. Third and subsequent violations—25 percent of the amount of any payment made to the Commissioner pursuant to the Act.

Section 12:66-4.4 Interest

(a) When the Commissioner makes an award of back pay, he or she may also award interest in the following situations:

1. When a contractor has unreasonably delayed compliance with an order of the Commissioner to pay wages owed to a worker;

2. Where an equitable remedy is required in order to recover the loss of the present value of money retained by the contractor over an extensive period of time; or

3. Where the Commissioner finds sufficient cause based on the particular case.

(b) Where applicable, interest deemed owed to a worker shall be calculated at the annual rate as set forth in New Jersey Court Rules, R.4:42-11.

Section 12:66-4.5 Hearings

(a) No assessment of wages, fees or penalties shall be levied pursuant to this subchapter unless the Commissioner provides the alleged violator with written notification of the violation and the amount of the wages, fees and/or penalties and an opportunity to request a formal hearing. A request for a formal hearing must be received within 15 business days following the receipt of the notice of assessment. All contested cases shall be heard pursuant to the Administrative Procedures Act, N.J.S.A. 52:14B-1 et seq., 52:14F-1 et seq., and the Uniform Administrative Procedure Rules, N.J.A.C. 1:1. The filing of a request for a hearing regarding wages, fees or penalties shall not preclude the Commissioner from pursuing other remedies under the Act.

(b) All requests for a hearing shall be reviewed by the Office of Wage and Hour Compliance to determine if the dispute can be resolved at an informal settlement conference. If the review indicates that an informal settlement conference is warranted, such conference shall be scheduled. If a settlement cannot be reached or if the review indicates that no settlement conference is warranted, the case shall be forwarded to the Office of Administrative Law for a formal hearing.

(d) Appeals of the final decision of the Commissioner shall be made to the Appellate Division of the New Jersey Superior Court.

(e) If the contractor, or a designated representative thereof, fails to appear at a requested hearing, the Commissioner may, for good cause shown, reschedule a hearing.

(f) If the Commissioner does not authorize such a rescheduled hearing, then the Commissioner shall issue a final agency determination.

(g) Payment of the wages, fees and/or penalties is due when a final agency determination is issued.

(h) Upon final determination, the wages, fees and penalties may be recovered with costs in a summary proceeding commenced by the Commissioner.

Section 12:66-4.6 Discharge or discrimination against worker making complaint

(a) A contractor who discharges or in any other manner discriminates against any worker because such worker has made any complaint to the contractor, to the public utility or to the Commissioner that the worker has not been paid wages in accordance with the provisions of the Act or because such worker has caused to be instituted, or is about to cause to be instituted, any proceeding under or related to the Act, or because such worker has testified or is about to testify in any such proceeding, shall be guilty of a disorderly persons offense and shall, upon conviction therefore, be fined not less than $ 100.00, nor more than $ 1,000.

(b) As an alternative to, or in addition to, any sanction imposed under (a) above, the Commissioner may under P.L. 2007, c. 343 assess and collect administrative penalties as provided for in N.J.A.C. 12:66-4.2.