Bill Text: NJ S1923 | 2022-2023 | Regular Session | Introduced
Bill Title: Concerns payment of independent contractors.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2022-03-03 - Introduced in the Senate, Referred to Senate Labor Committee [S1923 Detail]
Download: New_Jersey-2022-S1923-Introduced.html
Sponsored by:
Senator ANDREW ZWICKER
District 16 (Hunterdon, Mercer, Middlesex and Somerset)
SYNOPSIS
Concerns payment of independent contractors.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning the payment of independent contractors and supplementing chapter 11 of Title 34 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. As used in this act:
"Client" means a sole proprietorship, partnership, corporation, limited liability company, association or other business entity or a nonprofit organization contracting with an independent contractor in any occupation, industry, trade, business or service for remuneration equal to or greater than $600. The term "client" does not include a person or any governmental entity, or a general acute care facility licensed by the Commissioner of Health and Senior Services pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.), including rehabilitation, psychiatric, and long-term acute facilities.
"Commissioner" means the Commissioner of Labor and Workforce Development.
"Independent Contractor" means an individual who has performed services for remuneration, where the services are not regarded as employment for the purposes of the "unemployment compensation law," R.S.43:21-1 et seq., because the services meet the criteria set forth in R.S.43:21-19(i)(6)(A), (B), and (C), except that the following individuals and their clients shall not be subject to any provisions of sections 2 and 3 of this act (now pending before the Legislature as this bill, P.L. , c. (C. ) regarding the recovery of remuneration by independent contractors, including any provisions of those sections regarding the recovery of liquidated damages:
a. an individual who is a licensed medical professional;
b. an individual engaged in the practice of law pursuant to the contract at issue and who is a member in good standing of the bar of the highest court of any state, possession, territory, commonwealth, or the District of Columbia and who is not under any order of any court suspending, enjoining, restraining, disbarring or otherwise restricting the individual in the practice of law;
c. an individual who is licensed by the New Jersey Real Estate Commission pursuant to R.S.45:15-1 et seq.;
d. an individual who contracts to solicit orders in New Jersey as the sales representative of a principal; or
e. an individual subject to a collective bargaining agreement that specifies wages, terms and conditions of employment.
"Remuneration" means all compensation for personal services, including commissions and bonuses and the cash value of all compensation in any medium other than cash.
2. a. An independent contractor shall be paid the remuneration earned in accordance with agreed work terms. The contract between the independent contractor and client shall be reduced to writing, and signed by the client and the independent contractor. Signed copies of the contract shall be provided to the client and the independent contractor and be kept on file by the client for a period of not less than six years, and made available by the client to the commissioner upon request. The written contract shall include the name and mailing address of both the client and the independent contractor, an itemization of all services to be provided by the independent contractor, including clearly defined performance metrics to which the client intends to hold the independent contractor, a description of how remuneration that is earned and payable shall be calculated, and the date on which the client shall pay the contracted remuneration or the mechanism by which that date will be calculated.
b. The contracted remuneration shall be paid to the independent contractor either on or before the date the remuneration is due under the contract, or if the contract does not specify the date or the mechanism by which the date will be determined, the independent contractor shall be paid the remuneration earned not later than 30 days after the completion of the independent contractor's services under the contract. Once the independent contractor has commenced performance of the services under the contract, the client shall not require as a condition of timely payment that the independent contractor accept less remuneration than the amount of the contracted remuneration.
c. No client shall threaten, intimidate, discipline, harass, deny a work opportunity to or discriminate against an independent contractor, or take any other action that penalizes independent contractor for, or is reasonably likely to deter an independent contractor from, exercising or attempting to exercise any right provided under this act, or from obtaining a future work opportunity because the independent contractor has done so.
3. Any individual who believes himself or herself to be an independent contractor may file with the commissioner a complaint regarding a violation of the provisions of subsections a. or b. section 2 of this act. Such a complaint shall be filed as a claim for wages and, if the commissioner determines that the individual is an independent contractor, shall be investigated by the commissioner under article 3 of chapter 11 of Title 34 of the Revised Statutes (C.34:11-57 et seq.). If the commissioner determines that the individual is not an independent contractor, the services performed for remuneration shall be deemed employment and shall be subject to P.L.1965, c.173 (C.34:11-4.1 et seq.) and P.L.1966, c.113 (C.34:11-56a et seq.).
The determination by the commissioner as to the employment status of the worker as either an employee or an independent contractor shall not be governed by the written contract required under section 2 of this act. Rather, the determination by the commissioner as to the employment status of the worker as either an employee or an independent contractor shall be governed by the facts of the relationship between the employer or client and the worker. The written contract required under section 2 of this act may be a factor considered by the commissioner in making a determination regarding employment status, but shall not be dispositive.
The commissioner may award back remuneration to an independent contractor and, for second and subsequent violations of this act, the commissioner may assess against the client an additional amount as liquidated damages. Liquidated damages shall be calculated by the commissioner as no more than 100 percent of the total amount of the underlying contract.
The powers of the commissioner and procedural rights of claimants under article 3 of chapter 11 of Title 34 of the Revised Statutes (C.34:11-57 et seq.), shall apply to all claims filed under this act by independent contractors with the commissioner for remuneration as if the complaint for remuneration were a claim for wages.
Failure of a client to keep adequate records shall not constitute a bar to the filing of a complaint by an independent contractor. The failure of a client to provide the written work terms, upon request of the commissioner, shall give rise to a presumption that the terms that the independent contractor has presented are the agreed work terms.
4. Any client who does not pay the remuneration of its independent contractors in accordance with the provisions of this act, and the officers, agents, or representatives of any client who knowingly permit the client to violate the provisions of this act by failing to pay the remuneration of any of its independent contractors in accordance with the provisions of this act, shall be guilty of a disorderly persons offense for the first offense, and in the event that any second or subsequent offense occurs within six years of the date of conviction for a prior offense, shall be guilty of a crime of the fourth degree for each offense.
5. a. Except as otherwise provided by law, an independent contractor alleging a violation of a provision of this act may bring an action in any court of competent jurisdiction for damages as described in subsection b. of this section.
(1) Any action alleging a violation of subsection a. of section 2 of this act shall be brought within two years after the acts alleged to have violated this act occurred.
(2) Any action alleging a
violation of subsections b. or c. of section 2 of this act shall be brought
within six years after the acts
alleged to have violated this act occurred.
(3) A plaintiff who solely alleges a violation of subsection a. of section 2 of this act shall prove that the plaintiff requested a written contract prior to commencing the performance of any contracted services.
b. A plaintiff who prevails on a claim alleging a violation of this act shall be awarded damages as described in this subsection and an award of reasonable attorney's fees and court costs.
(1) A plaintiff who prevails on a claim alleging a violation of subsection a. of section 2 of this act shall be awarded damages of $250.
(2) A plaintiff who prevails on a claim alleging a violation of subsection a. of section 2 of this act and on one or more claims under other provisions of this act shall be awarded damages equal to the value of the underlying contract for the violation of subsection a. of section 2 in addition to the remedies specified in this subsection for the other violations.
(3) In addition to any other damages awarded pursuant to this subsection, a plaintiff who prevails on a claim alleging a violation of subsection b. of section 2 of this act is entitled to an award of double damages, injunctive relief and any other remedies deemed appropriate by the court.
(4) In addition to any other damages awarded pursuant to this subsection, a plaintiff who prevails on a claim alleging a violation of subsection c. of section 2 of this act is entitled to damages equal to the value of the underlying contract for each violation arising under subsection c. of section 2 of this act.
c. The remedies provided by this section and the remedies provided by any other provision of this act may be enforced simultaneously or consecutively so far as not inconsistent with each other.
6. a. The commissioner shall establish a navigation program that provides information and assistance, as set forth in subsection c. of this section, relating to the provisions of this act. The program shall include assistance by a natural person by phone and electronic mail and shall also include information accessible via an Internet website maintained by the Department of Labor and Workforce Development.
b. The navigation program
shall provide relevant information, as determined by the commissioner, related
to the submission of a complaint by an independent contractor to the
commissioner under section 3 of this act and links to the Internet website of
the Administrative Office of the Courts regarding the commencement of a civil
action under the provisions of this act.
7. This act shall take effect immediately.
STATEMENT
This bill requires that independent contractors be paid the remuneration earned in accordance with a signed, written contract between the independent contractor and client which is kept on file for not less than six years, and made available to the Commissioner of Labor and Workforce Development upon request. The bill requires the contract to itemize all services provided by the contractor, and include performance metrics and a description of how remuneration is calculated and when it is paid.
The bill requires the remuneration under the contract be paid at the time indicated in the contract, or, if the contract does not address the time of payment, not later than 30 days after the completion of the work. Once the contractor commences performance of the services, the client may not require as a condition of timely payment that the contractor accept less than the agreed upon remuneration.
A client is prohibited from taking adverse actions against a contractor for exercising or attempting to exercise any right provided by the bill.
The bill permits any individual who believes himself or herself to be an independent contractor to file with the commissioner a complaint regarding a violation of the provisions of the bill. The complaint would be filed as a claim for wages and, if the commissioner determines that the individual is an independent contractor, be investigated by the commissioner under article 3 of chapter 11 of Title 34 of the Revised Statutes (C.34:11-57 et seq.). If the commissioner determines that the individual is not an independent contractor, the services performed shall be deemed employment and be subject to P.L.1965, c.173 (C.34:11-4.1 et seq.) and P.L.1966, c.113 (C.34:11-56a et seq.).
The determination by the commissioner as to the employment status of the worker as either an employee or an independent contractor shall not be governed by the written contract required the bill, but instead by the facts of the relationship between the employer or client and the worker. The written contract may be a factor considered in making the determination, but shall not be dispositive.
The commissioner may award back remuneration to an independent contractor and, for second and subsequent violations of this act, the commissioner may assess against the client an additional amount as liquidated damages not more than 100 percent of the total amount of the underlying contract.
Failure of a client to keep adequate records is not a bar to filing of a complaint by an independent contractor. The failure of a client to provide record upon request of the commissioner shall give rise to a presumption that the terms that the independent contractor has presented are the agreed work terms.
A client who fails to pay the remuneration required by the bill, or an agent of the client who knowingly permits the client to fail to pay the remuneration is, for a first offense, guilty of a disorderly persons offense and, for a second or subsequent offense occurring within six years of a prior conviction, guilty of a crime of the fourth degree.
The bill permits an independent contractor to bring an action in any court of competent jurisdiction for specified damages along with and an award of reasonable attorney's fees and court costs.
The bill defines "client" as a business entity or a nonprofit organization contracting with a independent contractor for compensation equal to or greater than $600, but not a person, governmental entity, or general acute care facility licensed by the Commissioner of Health and Senior Services.
The bill defines "independent contractor" as an individual who performs services for remuneration, if the services are not regarded as employment for the purposes of the "unemployment compensation law" because the services meet the criteria set forth in R.S.43:21-19(i)(6)(A), (B), and (C), except that the following individuals and their clients shall not be subject to the provisions of the bill:
1. a licensed medical professional;
2. an individual engaged in the practice of law under the contract;
3. an individual licensed by the New Jersey Real Estate Commission;
4. an individual who contracts to solicit orders in New Jersey as the sales representative of a principal; or
5. an individual subject to a collective bargaining agreement.
