Bill Text: NJ A3253 | 2024-2025 | Regular Session | Introduced
Bill Title: Concerns work break periods and warehouse conditions of employment.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-01-09 - Introduced, Referred to Assembly Labor Committee [A3253 Detail]
Download: New_Jersey-2024-A3253-Introduced.html
STATE OF NEW JERSEY
221st LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2024 SESSION
Sponsored by:
Assemblywoman HEATHER SIMMONS
District 3 (Cumberland, Gloucester and Salem)
SYNOPSIS
Concerns work break periods and warehouse conditions of employment.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act concerning work break periods and warehouse conditions of employment, amending and supplementing P.L.1966, c.113, and amending R.S.34:11-58.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 2 of P.L.1966, c.113 (C.34:11-56a1) is amended to read as follows:
2. As used in this act:
(a) "Commissioner" means the Commissioner of Labor and Workforce Development.
(b) "Director" means the director in charge of the bureau referred to in section 3 of this act.
(c) "Wage board" means a board created as provided in section 10 of this act.
(d) "Wages" means any moneys due an employee from an employer for services rendered or made available by the employee to the employer as a result of their employment relationship including commissions, bonus and piecework compensation and including the fair value of any food or lodgings supplied by an employer to an employee, and, until December 31, 2018, "wages" includes any gratuities received by an employee for services rendered for an employer or a customer of an employer, and includes pay for meal and rest periods. The commissioner may, by regulation, establish the average value of gratuities received by an employee in any occupation and the fair value of food and lodging provided to employees in any occupation, which average values shall be acceptable for the purposes of determining compliance with this act in the absence of evidence of the actual value of such items.
(e) "Regular hourly wage" means the amount that an employee is regularly paid for each hour of work as determined by dividing the total hours of work during the week into the employee's total earnings for the week, exclusive of overtime premium pay.
(f) "Employ" includes to suffer or to permit to work.
(g) "Employer" includes any individual, partnership, association, corporation, and the State and any county, municipality, or school district in the State, or any agency, authority, department, bureau, or instrumentality thereof, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee.
(h) "Employee" includes any individual employed by an employer.
(i) "Occupation" means any occupation, service, trade, business, industry or branch or group of industries or employment or class of employment in which employees are gainfully employed.
(j) "Minimum fair wage order" means a wage order promulgated pursuant to this act.
(k) "Fair wage" means a wage fairly and reasonably commensurate with the value of the service or class of service rendered and sufficient to meet the minimum cost of living necessary for health. A wage and rate of work imposed by a warehouse employer by a quota which violates the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) is not a "fair wage".
(l) "Oppressive and unreasonable wage" means a wage which is both less than the fair and reasonable value of the service rendered and less than sufficient to meet the minimum cost of living necessary for health. A wage and rate of work imposed by a warehouse employer by a quota which violates the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), is an "oppressive and unreasonable wage".
(m) "Limousine" means a motor vehicle used in the business of carrying passengers for hire to provide prearranged passenger transportation at a premium fare on a dedicated, nonscheduled, charter basis that is not conducted on a regular route and with a seating capacity in no event of more than 14 passengers, not including the driver, provided, that such a motor vehicle shall not have a seating capacity in excess of four passengers, not including the driver, beyond the maximum passenger seating capacity of the vehicle, not including the driver, at the time of manufacture. "Limousine" shall not include taxicabs, hotel or airport shuttles and buses, buses employed solely in transporting school children or teachers to and from school, vehicles owned and operated directly or indirectly by businesses engaged in the practice of mortuary science when those vehicles are used exclusively for providing transportation related to the provision of funeral services or vehicles owned and operated without charge or remuneration by a business entity for its own purposes.
(n) "Seasonal employment" means employment during a year by an employer that is a seasonal employer, or employment by a non-profit or government entity of an individual who is not employed by that employer outside of the period of that year commencing on May 1 and ending September 30, or employment by a governmental entity in a recreational program or service during the period commencing on May 1 and ending September 30, except that "seasonal employment" does not include employment of employees engaged to labor on a farm on either a piece-rate or regular hourly rate basis.
(o) "Seasonal employer" means an employer who exclusively provides its services in a continuous period of not more than ten weeks during the months of June, July, August, and September, or an employer for which, during the immediately previous calendar year, not less than two thirds of the employer's gross receipts were received in a continuous period of not more than sixteen weeks or for which not less than 75 percent of the wages paid by the employer during the immediately preceding year were paid for work performed during a single calendar quarter.
(p) "Small employer" means any employer who employed less than six employees for every working day during each of a majority of the calendar workweeks in the current calendar year and less than six employees for every working day during not less than 48 calendar workweeks in the preceding calendar year, except that, if the employer was newly established during the preceding calendar year, the employer shall be regarded as a "small employer" if the employer employed less than six employees for every working day during all of the weeks of that year, and during a majority of the calendar workweeks in the current calendar year, and, if the employer is newly established during the current calendar year, the employer shall be regarded as a "small employer" if the employer employed less than six employees for every working day during a majority of the calendar workweeks in the current calendar year.
(q) "Long-term care facility direct care staff member" means any health care professional licensed or certified pursuant to Title 26 or Title 45 of the Revised Statutes who is employed by a long-term care facility and who provides personal care, assistance, or treatment services directly to residents of the facility in the course of the professional's regular duties.
(r) "Employee work speed data" means information warehouse employers collect, store, analyze, or interpret relating to the performance of individual employees of quotas, including, but not limited to, quantities of tasks performed, quantities of items or materials handled or produced, rates or speeds of tasks performed, measurements or metrics of employee performance in relation to quotas, and time categorized as performing tasks or not performing tasks.
(s) "Warehouse employer" means an employer who directly or indirectly, or through an agent or any other person, including through the services of a third-party employer, temporary service, or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of 100 or more employees at a single warehouse distribution center or 1,000 or more employees at one or more warehouse distribution centers in the State.
(t) "Quota" means a work standard under which an employee of a warehouse employer is assigned or required to perform at a specified productivity speed, or perform a quantified number of tasks, or to handle or produce a quantified amount of material, within a defined time period and under which the employee may suffer an adverse employment action if the employee fails to complete the performance standard. Any "quota" imposed by the employer is a component of "wages and hours of work" for the purposes of P.L.1966, c.113 (C.34:11-56a et al), and a wage and rate of work imposed by a quota which violates the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), is not a fair wage and is an oppressive and unreasonable wage.
(u) "Warehouse distribution center" means an establishment as defined by any of the following North American Industry Classification System (NAICS) Codes: 4931, Warehousing and Storage; 423, Merchant Wholesalers, Durable Goods; 424, Merchant Wholesalers, Nondurable Goods; and 4541, Electronic Shopping and Mail-Order Houses.
(cf: P.L.2020, c.89, s.1)
2. (New section) a. (1) No individual shall be employed or permitted to work for more than five hours continuously without an interval of not less than 30 minutes for a meal period, which shall be counted as time worked. The meal period shall not occur before the end of the second hour of the shift or after two hours before the end of the shift. No period of less than 30 minutes shall be deemed to interrupt a continuous period of work for the purpose of this paragraph.
(2) In addition, no individual shall be employed or permitted to work for more than four hours continuously without an interval of not less than 15 minutes for a rest period, which shall be counted as time worked. The rest period shall not occur before the end of the first hour of the shift or after one hour before the end of the shift. No period of less than 15 minutes shall be deemed to interrupt a continuous period of work for the purpose of this paragraph.
b. Nothing in this section shall be construed as prohibiting an employer from providing, or negotiating with a labor organization representing the employer's employees, longer or more frequent meal or rest periods. Nothing in this section shall be construed as reducing in any way the responsibility of any employer to comply with the provisions of section 4 of P.L.1940, c.153 (C.34:2-21.4) regarding lunch periods for minors.
3. (New section) a. The commissioner shall adopt regulations setting requirements for work quotas in covered warehouse facilities to assure that the quotas:
(1) include the quantified number of tasks to be performed or materials to be produced or handled, within the defined time period, and any potential adverse employment action that could result from failure to meet the quota;
(2) do not result in rates of work or workloads under which the wages paid are not fairly and reasonably commensurate with the value of the service provided;
(3) permit rates of work and workloads which workers can maintain on a sustained basis, and do not result in high levels of turnover of the workforce, or otherwise adversely affect the general well-being and efficiency of the workers; and
(4) do not prevent compliance with meal and rest periods required pursuant to section 2 of this act, prevent needed use of bathroom facilities, including reasonable travel to and from bathroom facilities, prevent breaks or other accommodations required by subsection s. of section 11 of P.L.1945, c.159 (C.10:5-12) in connection with pregnancy or breastfeeding, or hinder any other accommodations required pursuant to any State or federal anti-discrimination or safety and health laws.
b. In setting requirements for quotas pursuant to subsection a. of this section, the commissioner shall take into consideration: information regarding quotas imposed by warehouse employers in this State and elsewhere, data regarding the rates of work and workloads in warehouses in this State and elsewhere, information regarding adverse impacts of excessive work speeds on warehouse workers, data on turnover rates and wage levels in warehouses in this State and elsewhere, and the adequacy of those wage levels to meet a cost of living necessary for health and well-being;
c. In preparing proposed regulations pursuant to section a. of this section, the commissioner shall consult with representatives of organizations representing warehouse employers, representatives of labor organizations representing warehouse employees, and individuals not employed by those organizations who have expertise regarding the effects of work speed and quotas on the well-being, efficiency, and turnover rates of warehouse workers, including expertise regarding adverse impacts of excessive work speeds on warehouse workers.
The regulations shall be adopted not later than 120 days after the effective date of this act.
4. (New section) Each warehouse employer shall provide to each employee, not later than the 30th day after of the adoption of regulations pursuant to section 3 of this act, or upon hire if the employee is hired after that day, a written description of each quota to which the employee is subject which shall be in compliance with requirements set by those regulations. The employer shall provide a written description of any change in the quota not less than two weeks prior to the change taking effect.
5. (New section) An employee shall not be required to meet a quota that prevents compliance with required meal or rest periods, use of bathroom facilities, including reasonable travel time to and from bathroom facilities, or occupational health and safety laws or standards, or otherwise violates any requirement set by regulation pursuant to section 3 of this act. An employer who takes any adverse employment action against an employee for failure to meet a quota that does not meet the requirements set by regulation pursuant to section 3 of this act or for failure to meet a quota that has not been disclosed to the employee pursuant to section 4 of this act, shall be regarded as having taken a retaliatory action against the employee and shall be subject to the penalties and other remedies provided by section 25 of P.L.1966, c.113 (C.34:11-56a24) for retaliatory actions.
6. (New section) Any actions taken by an employee to comply with occupational health and safety laws or standards shall be considered time on task and productive time for purposes of any quota or monitoring system.
7. (New section) a. If a current or former employee believes that meeting a quota caused a violation of the employee's rights under the requirements set by regulation pursuant to section 3 of this act, the employee has the right to request, and the employer shall provide, a written description of each quota to which the employee is subject and a copy of the most recent 90 days of the employee's own personal work speed data.
b. If a former employee requests a written description of the quotas to which the employee was subject and a copy of the employee's own personal work speed data pursuant to subsection a. of this section, the employer shall provide not less than 90 days of the former employee's quotas and personal work speed data for the not less than 90 days prior to the date of the employee's separation from the employer.
c. A former employee shall be limited to one request pursuant to this section.
d. An employer that receives a written or oral request for information pursuant to this section shall comply with the request as soon as practicable, but not later than 14 calendar days from the date of the request.
8. (New section) a. This act provides minimum requirements pertaining to quotas imposed on employees of warehouse employers and shall not be construed to preempt, limit, or otherwise affect the applicability of any other federal, State or local law, ordinance, regulation, requirement, policy, or standard that provides rights to employees which are more favorable to employees than those required by this act or which provide rights to employees not covered by this act.
b. No provision of this act, or any regulations promulgated to implement or enforce this act, shall be construed as:
(1) Requiring an employer to reduce, or justifying an employer in reducing, rights provided by the employer pursuant to an employer policy or collective bargaining agreement which are more favorable to employees than those required by this act or which provide rights to employees not covered by this act;
(2) Preventing or prohibiting the employer from agreeing, through a collective bargaining agreement or employer policy, to provide rights which are more favorable to employees than those required by this act or to provide rights to employees not covered by this act;
(3) Superseding any law providing collective bargaining rights for employees, or in any way reducing, diminishing, or adversely affecting those collective bargaining rights, or in any way reducing, diminishing, or affecting the obligations of employers under those laws.
c. With respect to employees covered by a collective bargaining agreement in effect at the time of the effective date of this act, no provision of this act shall apply until the expiration of the collective bargaining agreement.
9. Section 21 of P.L.1966, c.113 (C.34:11-56a20) is amended to read as follows:
21. Every employer of employees subject to this act shall keep a true and accurate record of the hours worked by each and the wages paid by [him] the employer to each, and, if the employer is a warehouse employer, any quota set by the employer and employee work speed data related to the quota, and shall furnish to the commissioner or the director or their authorized representative upon demand a sworn statement of the same. Such records shall be open to inspection by the commissioner or the director or their authorized representative at any reasonable time. No employer shall be found guilty of violating this provision for failure to keep a true and accurate record of the hours worked by outside salesmen, buyers of poultry, eggs, cream, milk or other perishable commodities in their natural or raw state, homeworkers legally employed in accordance with the laws of this State or any person employed in a bona fide executive, administrative or professional capacity, except that no exemption from record keeping pursuant to this section in regard to any person employed in a bona fide executive, administrative or professional capacity shall be construed to permit an employer to pay wages at a rate which violates the provisions of section 5 of P.L.1966, c.113 (C.34:11-56a4).
(cf: P.L.1993, c.91, s.1)
10. Section 22 of P.L.1966, c.113 (C.34:11-56a21) is amended to read as follows:
22. Every employer subject to any provision of this act or of any regulations or orders issued under this act shall keep a summary of this act, approved by the commissioner, and copies of any applicable wage orders and regulations issued under this act, or a summary of such wage orders and regulations, and, if the employer is a warehouse employer, a summary of the requirements set by regulation pursuant to section 3 of P.L. , c. (C. )(pending before the Legislature as this bill), posted in a conspicuous and accessible place in or about the premises wherein any person subject thereto is employed. Employers shall be furnished copies of such summaries, orders, and regulations by the State on request without charge.
(cf: P.L.1966, c.113, s.22)
11. Section 26 of P.L.1966, c.113 (C.34:11-56a25) is amended to read as follows:
26. If any employee is paid by an employer less than the minimum fair wage to which the employee is entitled under the provisions of P.L.1966, c.113 (C.34:11-56a et seq.) or by virtue of a minimum fair wage order, or suffers a loss of wages or other damages because of a retaliatory action by the employer in violation of the provisions of section [24] 25 of P.L.1966, c.113 (C.34:11-56a24), the employee may recover in a civil action the full amount of that minimum wage less any amount actually paid to him or her by the employer, or any wages lost due to the retaliatory action, and an additional amount equal to not more than 200 percent of the amount of the unpaid minimum wages or wages lost due to retaliatory action as liquidated damages, plus costs and reasonable attorney's fees as determined by the court, except that if there is an agreement of the employee to accept payment of the unpaid wages or compensation supervised by the commissioner pursuant to section 24 of P.L.1966, c.113 (C.34:11-56a23) or R.S.34:11-58, the liquidated damages shall be equal to not more than 200 percent of wages that were due prior to the supervised payment. The payment of liquidated damages shall not be required for a first violation by an employer if the employer shows to the satisfaction of the court that the act or omission constituting the violation was an inadvertent error made in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation, and the employer acknowledges that the employer violated the law and pays the amount owed within 30 days of notice of the violation. In the case of a violation of requirements set by regulations pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), the amount of unpaid wages shall be based on a determination of the difference between what the employer would have paid if the requirements had be complied with and what was actually paid. In a case of retaliation against an employee in violation of the provisions of section [24] 25 of P.L.1966, c.113 (C.34:11-56a24), the employer shall also be required to offer reinstatement in employment to the discharged employee, and take other actions as needed to correct the retaliatory action. For purposes of this section, an employer 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 P.L.1966, c.113 (C.34:11-56a et seq.) shall raise a presumption that the employer's action was taken in retaliation against the employee, which presumption may be rebutted only by clear and convincing evidence that the action was taken for other, permissible, reasons. Any agreement between the employee and the employer to work for less than the minimum fair wage shall be no defense to the action. An employee shall be entitled to maintain the action for and on behalf of himself or other employees similarly situated, and the employee and employees may designate an agent or representative to maintain the action for and on behalf of all employees similarly situated. The employee may bring the action to recover unpaid minimum wages, or wages lost due to retaliatory action, or other appropriate relief, including reinstatement and payment of damages pursuant to this section, in the Superior Court.
At the request of any employee paid less than the minimum wage to which the employee was entitled under the provisions of P.L.1966, c.113 (C.34:11-56a et seq.) or under an order, the commissioner may take an assignment of the wage claim in trust for the assigning employee and may bring any legal action necessary to collect the claim, and the employer shall be required to pay to the employee the unpaid wages and liquidated damages equal to not more [then] than 200 percent the amount of the unpaid wages and pay to the commissioner the costs and reasonable attorney's fees as determined by the court. The payment of liquidated damages shall not be required for a first violation by an employer if the employer shows to the satisfaction of the court that the act or omission constituting the violation was an inadvertent error made in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation, and the employer acknowledges that the employer violated the law and pays the amount owed within 30 days of notice of the violation. In the case of a violation of requirements set by regulation pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), the amount of unpaid wages to be paid, and any resulting liquidated damages, shall be based on a determination of the difference between what the employer would have paid if the requirements had be complied with and what was actually paid.
(cf: P.L.2019, c.212, s.4)
12. R.S.34:11-58 is amended to read as follows:
34:11-58. a. An employee may file a claim for wages against an employer under this section or any of the other State wage and hours laws for wages owed related to work performed, including but not limited to wages owed related to unpaid minimum wages, unpaid overtime compensation, wages lost because of unlawful discharge or other discriminatory acts taken in retaliation against the employee, up to six years prior to the date the claim for wages is filed. In the case of a violation of requirements set by regulations pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), the amount of unpaid wages due to be paid shall be based on a determination of the difference between what the employer would have paid if the requirements had be complied with and what was actually paid.
b. An employer found to owe an employee wages shall pay the employee the wages owed plus liquidated damages equal to not more than 200% of the wages owed, exclusive of any costs or fees.
c. The commissioner is authorized and empowered to investigate any claim for wages due an employee and in such investigation may summon the defendant, subpoena witnesses, administer oaths, take testimony and shall upon such proceeding make a decision or award when the sum in controversy, exclusive of costs, does not exceed $50,000.
Such decision or award shall be a judgment when a certified copy thereof is filed with the Superior Court.
Such judgment shall be entered in the same manner and have the same effect and be subject to the same proceedings as are judgments rendered in suits duly heard and determined by courts of competent jurisdiction.
d. Upon an investigation of a wage claim initiated pursuant to this section or any of the other State wage and hours laws, if an employer fails to provide sufficient employee records, as required to be kept under any State wage and hour laws, there shall be a rebuttable presumption that the employee worked for the employer for the period of time and for the amount of wages as alleged in the wage claim. The rebuttable presumption shall not apply to an employer that can demonstrate it does not have sufficient employee records as a result of record destruction due to a natural disaster.
e. The commissioner is authorized to supervise the payment of amounts, including liquidated damages, due to employees under an award made pursuant to this section, and the employer may be required to make these payments to the commissioner to be held in a special account in trust for the employees, and paid on order of the commissioner directly to the employee or employees affected. The employer shall also pay the commissioner an administrative fee equal to not less than 10% or more than 25% of any payment made to the commissioner pursuant to this section. The amount of the administrative fee shall be specified in a schedule of fees to be promulgated by rule or regulation of the commissioner in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.). The fee shall be applied to enforcement and administration costs of the Division of Workplace Standards in the Department of Labor and Workforce Development.
f. Upon issuing a decision, under this section or any of the other State wage and hours laws, finding wages due to an employee in an amount equal to or greater than $5,000, the commissioner shall:
(1) inform the employer that the commissioner may conduct an audit of the employer or any successor firm of the employer pursuant to section 2 of P.L.2009, c.194 (C.34:1A-1.12); and
(2) notify the Division of Taxation in the Department of the Treasury of the decision and may recommend that the division conduct an audit of the employer to ensure the proper withholding and payment of payroll and other taxes by the employer.
g. No payment of an amount of wages owed or related damages, including wages or damages related to retaliation, shall be required under the provisions of this section, or under the provisions of any of the other State wage and hour laws, which results in a violator paying wages owed or damages more than one time for the same violation.
(cf: P.L2019, c.212, s.7)
13. This act shall take effect immediately.
STATEMENT
This bill supplements and amends the "New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11-56a et seq.), to require all employers to provide meal and rest periods for employees working for shifts of specified lengths, and to have the Commissioner of Labor and Workforce Development set by regulation requirements regarding work quotas in warehouse distribution centers.
The bill requires all employers to provide paid meal periods of at least 30 minutes for employees who work for more than five hours continuously, and paid rest periods of at least a 15 minutes for any continuous work period of more than four hours. Current New Jersey law requires 30-minute meal breaks for minors who work five or more continuous hours, but has no requirement for adults, and no requirement for rest breaks for adults or minors. 21 states currently require meal breaks for adults and six of those states also have rest break requirements.
The bill directs the commissioner to adopt regulations setting requirements for work quotas in covered warehouse facilities to assure that the quotas:
1. include the quantified number of tasks to be performed or materials to be produced or handled, within the defined time period, and any potential adverse employment action that could result from failure to meet the quota;
2. do not result in rates of work or workloads under which the wages paid are not fairly and reasonably commensurate with the value of the service provided;
3. permit rates of work and workloads which workers can maintain on a sustained basis, and do not result in high levels of turnover of the workforce, or otherwise adversely affect the general well-being and efficiency of the workers; and
4. do not prevent compliance with required meal and rest periods, prevent needed use of bathroom facilities, prevent breaks or other accommodations required by the Law Against Discrimination in connection with pregnancy or breastfeeding, or hinder any other accommodations required pursuant to any State or federal anti-discrimination or safety and health laws.
In setting requirements for quotas, the commissioner is directed to consider information regarding quotas imposed by warehouse employers, data regarding the rates of work and workloads in warehouses, information regarding adverse impacts of excessive work speeds on warehouse workers, data on turnover rates and wage levels in warehouses in this State and elsewhere, and the adequacy of those wage levels to meet a cost of living necessary for health and well-being. The commissioner is also directed to consult with warehouse employer organization representatives, representatives of labor organizations representing warehouse employees, and individuals not employed by those organizations who have expertise regarding the effects of work speed and quotas on the well-being, efficiency, and turnover rates of warehouse workers.
Warehouse employers are required to provide employees with a written description of quotas to which the employee is subject. The employers are prohibited from requiring any employee to meet a quota that violates any requirement set by the regulation pursuant to the bill, and are prohibited from taking any adverse employment action against an employee for failure to meet a quota that does not meet the requirements set those regulations or for failure to meet a quota which the employer has failed to disclose.
Actions taken by an employee to comply with occupational health and safety laws or standards are considered productive time for purposes of any quota or monitoring system.
Current and former employees who believe that meeting a quota caused a violation of the provisions of the bill are given the right to obtain from an employer a written description of each quota and employee's own personal work speed data.
Any employer who violates the bill's provisions is subject to sanctions in the "New Jersey State Wage and Hour Law."
