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6-11-09 GSCS - it sometimes defies logic

S2850 Extends service prevailing wage requirements to food service contracts and to local units and State authorities.

 

S1882 Permits municipalities to transfer the responsibility for hiring adult school crossing guards to the local school district and any charter schools located in the municipality. *

SENATE, No. 2850

STATE OF NEW JERSEY

213th LEGISLATURE

 

INTRODUCED MAY 21, 2009

 

Sponsored by:  Senator FRED H. MADDEN, JR. , District 4 (Camden and Gloucester)

CURRENT VERSION OF TEXT  As introduced.

 

An Act concerning certain prevailing wage requirements and amending the title and body of P.L. 2005, c. 379.

 

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

 

     1.    The title of P.L.2005, c.379 is amended to read as follows:

An Act establishing prevailing wage standards for certain [State building] service contracts of public bodies and supplementing chapter 11 of Title 34 of the Revised Statutes.

(cf: P.L.2005, c.379, title)

 

     2.    Section 1 of P.L.2005, c.379 (C.34:11-56.58) is amended to read as follows:

     1.    It is declared to be the public policy of this State to establish prevailing wage levels for the employees of contractors and subcontractors furnishing building services or food services for or at any property or premises owned or leased by [the State] a public body in order to safeguard the efficiency and general well-being of those employees and to protect them and their employers from the effects of serious and unfair competition based on low wage levels which are detrimental to efficiency and well-being.

(cf: P.L.2005, c.379, s.1)

 

     3.    Section 2 of P.L.2005, c.379 (C.34:11-56.59) is amended to read as follows:

     2.    As used in this act:

     "Commissioner" means the Commissioner of Labor and Workforce Development or the commissioner's duly authorized representatives.

     "Building services" means any cleaning or building maintenance work, including but not limited to sweeping, vacuuming, floor cleaning, cleaning of rest rooms, collecting refuse or trash, window cleaning, engineering, securing, patrolling, or other work in connection with the care, securing, or maintenance of an existing building, except that "building services" shall not include any maintenance work or other public work for which a contractor is required to pay the "prevailing wage" as defined in section 2 of P.L.1963, c.150 (C.34:11-56.26).

     "Food services" means any work related to the preparation or serving of food.

     "Leased by [the State] a public body" means that not less than 55% of the property or premises is leased by [the State] a public body, provided that the portion of the property or premises that is leased by the [State] public body measures more than 20,000 square feet.

     "Prevailing wage for building services" means the wage and benefit rates designated by the commissioner based on the determinations made by the General Services Administration pursuant to the federal "Service Contract Act of 1965" (41 U.S.C. s.351 et seq.), for the appropriate localities and classifications of building service employees.

     "Prevailing wage for food services" means the wage and benefit rates designated by the commissioner based on the determinations made by the General Services Administration pursuant to the federal "Service Contract Act of 1965 (41 U.S.C. s.351 et seq.) for the appropriate localities and classifications of food preparation and service occupations.

     ["The State"] "Public body" means the State of New Jersey, any of its political subdivisions, and all [of its] departments, bureaus, boards, commissions, agencies and instrumentalities thereof, including any State institutions of higher education, [but does not include political subdivisions] and any authority created by the Legislature of the State of New Jersey.

     "State institutions of higher education," means Rutgers, The State University of New Jersey, the University of Medicine and Dentistry of New Jersey and the New Jersey Institute of Technology, and any of the State colleges or universities established pursuant to chapter 64 of Title 18A of the New Jersey Statutes, but does not include any county college established pursuant to chapter 64A of Title 18A of the New Jersey Statutes.

(cf:  P.L.2005, c.379, s.2)

 

     4.    Section 3 of P.L.2005, c.379 (C.34:11-56.60) is amended to read as follows:

     3.    Every contract to furnish building services or food services for or at any property or premises owned or leased by [the State] a public body, whether or not the work is paid from public funds, shall contain a provision stating the prevailing wage for building services or food service rates that are applicable to the workers employed in the performance of the contract and shall contain a stipulation that those workers shall be paid not less than the indicated prevailing wage for building services or food service rates.  The contract shall provide for annual adjustments of the prevailing wage for building services or food services during the term of the contract, and shall provide that if it is found that any worker employed by the contractor or any subcontractor covered by the contract, has been paid less than the required prevailing wage, the [State Treasurer] public body, the lessee to whom the public body is leasing a property or premises or the lessor from whom the public body is leasing a property or premises may terminate the contractor or subcontractor's right to proceed with the work, and the contractor and his sureties shall be liable to the [State] public body, any lessee to whom the public body is leasing a property, or any lessor from whom the public body is leasing a property, or any lessor from whom the public body is leasing a property or premises for any excess costs occasioned by the termination.

(cf:  P.L.2005, c.379, s.3)

 

     5.    Section 4 of P.L.2005, c.379 (C.34:11-56.61) is amended to read as follows:

     4.    Each contractor and subcontractor shall keep an accurate record showing the name, classification, and actual hourly rate of wages and any benefits paid to each worker employed by him to perform building services [pursuant to a State contract or subcontract] or food services for or at any property or premises owned or leased by a public body, and shall preserve those records for two years after the date of payment.  The record shall be open at all reasonable hours to inspection by the [Director of the Division of Purchase and Property] public body, by the lessor or lessee of the public body, and the commissioner.

(cf:  P.L.2005, c.379, s.4)

 

     6.    Section 5 of P.L.2005, c.379 (C.34:11-56.62) is amended to read as follows:

     5.    Any worker paid less than the prevailing wage for building services or food services to which the worker is entitled by the provisions of this act may recover in a civil action the full amount of the prevailing wage for building services or food services less any amount actually paid to the worker by the employer together with any costs and reasonable attorney's fees allowed by the court, and an agreement between the worker and the employer to work for less than the prevailing wage for building services or food services shall not be a defense to the action.  The worker shall be entitled to maintain an action for and on behalf of the worker or other workers similarly situated and the worker or workers may designate an agent or representative to maintain such actions for and on behalf of all workers similarly situated.  At the request of any worker paid less than the prevailing wage for building services or food services required under the provisions of this act, the commissioner may take an assignment of the wage claim in trust for the assigning worker or workers and may bring any legal action necessary to collect the claim, and the employer shall be required to pay any costs and such reasonable attorney's fee as are allowed by the court.

(cf:  P.L.2005, c.379, s.5)

 

     7.    Section 6 of P.L.2005, c.379 (C.34:11-56.63) is amended to read as follows:

     6.    The commissioner shall have the authority to:

     a.     investigate and ascertain the wages of any employees of a contractor or subcontractor furnishing building services or food services for or at any property or premises owned or leased by [the State] a public body;

     b.    enter and inspect the place of business or employment of any contractor or subcontractor furnishing building services or food services for or at any property or premises owned or leased by [the State] a public body, for the purpose of examining and inspecting any or all books, registers, payrolls, and other records of any such contractor or subcontractor that in any way relate to or have a bearing upon the question of wages, hours, and other conditions of employment of any employees of such contractor or subcontractor; copy any or all of such books, registers, payrolls, and other records as the commissioner may deem necessary or appropriate; and question the employees of such contractor or subcontractor for the purpose of ascertaining whether the provisions of this act have been and are being complied with;

     c.     require from such contractor or subcontractor full and correct statements in writing, including sworn statements, with respect to wages, hours, names, addresses, and other information pertaining to the contractor or subcontractor's workers and their employment as the commissioner may deem necessary or appropriate; and

     d.    require any contractor or subcontractor to file, within 10 days of receipt of a request, any records enumerated in subsections b. and c. of this section, sworn as to their validity and accuracy[,].  If the public body is a party to the contract and the contractor or subcontractor fails to provide the requested records within 10 days, the [State Treasurer] commissioner may, within 15 days, direct the fiscal or financial officer charged with the custody and disbursements of the funds of the public body which contracted for the public work to immediately withhold from payment to the employer up to 25% of the amount, not to exceed $100,000, to be paid to the employer under the terms of the contract pursuant to which the building services or food services work is being performed.  The amount withheld shall be immediately released upon receipt by the [State Treasurer] public body of a notice from the commissioner indicating that the request for records has been satisfied.

(cf:  P.L.2005, c.379, s.6)

 

     8.    Section 9 of P.L.2005, c.379 (C.34:11-56.66) is amended to read as follows:

     9.    Any contractor or subcontractor who discharges or in any other manner discriminates against any worker because the worker has made any complaint to the worker's employer, to the [State Treasurer] public body or to the commissioner that the worker has not been paid wages in accordance with the provisions of this act, or because the worker has caused to be instituted or is about to cause to be instituted any proceeding under or related to this act, or because the worker has testified or is about to testify in any such proceeding shall be guilty of a disorderly persons offense and shall, upon conviction therefor, be fined not less than $100 nor more than $1,000.

     As an alternative to or in addition to any other sanctions provided by law for violations of any provision of this act, if the commissioner finds that a contractor or subcontractor has violated the act, the commissioner is authorized to assess and collect administrative penalties, up to a maximum of $250 for a first violation and up to a maximum of $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 contractor or subcontractor, the seriousness of the violation, the good faith of the contractor or subcontractor and the size of the contractor's or subcontractor's business.  No administrative penalty shall be levied pursuant to this section unless the commissioner 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 the commissioner's  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 shall be 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 applied toward enforcement and administration costs of the Division of Workplace Standards in the Department of Labor and Workforce Development.

(cf:  P.L.2005, c.379, s.9)

 

     9.    This act shall take effect on the 60th day following enactment and apply to contracts entered into, renewed, extended, or amended on or after that date.

STATEMENT     This bill extends the scope of P.L.2005, c.379 (C.34:11-56.58 et seq.), which currently requires that contractors providing building services for properties owned or leased by the State pay their employees the prevailing wage rates set under the federal “Services Contract Act of 1965.”  Under the bill, the prevailing wage rates set under that federal act would also apply to contracts to provide food services for or at properties owned or leased by any political subdivision or authority of the State.