SENATE, No. 2692

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED FEBRUARY 7, 2011

 


 

Sponsored by:

Senator  ANTHONY R. BUCCO

District 25 (Morris)

 

 

 

 

SYNOPSIS

     Repeals all prevailing wage laws.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning prevailing wage and revising various parts of statutory law.

 

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

 

     1.    Section 97 of P.L.1999, c.440 (C.2C:21-34) is amended to read as follows:

     97.  a.  A person commits a crime if the person knowingly submits to the government any claim for payment for performance of a government contract knowing such claim to be false, fictitious, or fraudulent.  If the claim submitted is for $25,000.00 or above, the offender is guilty of a crime of the second degree.  If the claim exceeds $2,500.00, but is less than $25,000.00, the offender is guilty of a crime of the third degree.  If the claim is for $2,500.00 or less, the offender is guilty of a crime of the fourth degree.

     b.    A person commits a crime if the person knowingly makes a material representation that is false in connection with the negotiation, award or performance of a government contract.  If the contract amount is for $25,000.00 or above, the offender is guilty of a crime of the second degree.  If the contract amount exceeds $2,500.00, but is less than $25,000.00, the offender is guilty of a crime of the third degree.  If the contract amount is for $2,500.00 or less, the offender is guilty of a crime of the fourth degree.

     c.     [An employer commits a crime if the employer knowingly pays one or more employees employed in public work subject to the provisions of P.L.1963, c.150 (C.34:11-56.25 et seq.) at a rate less than the rate required pursuant to that act.  If the contract amount is for $75,000.00 or above, the employer is guilty of a crime of the second degree; if the contract amount exceeds $2,500.00, but is less than $75,000.00, the employer is guilty of a crime of the third degree; and if the contract amount is for $2,500.00 or less, the employer is guilty of a crime of the fourth degree.  In addition, the employer shall be deemed to have caused loss to the employees in the amount by which the employees were underpaid and shall be subject to the provisions of N.J.S.2C:43-3 regarding fines and restitution to victims and be subject to other pertinent provisions of Title 2C of the New Jersey Statutes, including, but not limited to, N.J.S.2C:43-4, 2C:43-6 and 2C:44-1.] (Deleted by amendment P.L.    ,c.   ) (pending before the Legislature as this bill)

(cf: P.L.2003, c.276, s.2)

 

     2.    Section 43 of P.L.2009, c.90 (C.18A:64-85) is amended to read as follows:

     43.  a.  A State college or county college may enter into a contract with a private entity, subject to subsection f. of this section, to be referred to as a public-private partnership agreement, that permits the private entity to assume full financial and administrative responsibility for the on-campus construction, reconstruction, repair, alteration, improvement or extension of a building, structure, or facility of, or for the benefit of, the institution, provided that the project is financed in whole by the private entity and that the State or institution of higher education, as applicable, retains full ownership of the land upon which the project is completed.

     b.    (1) A private entity that assumes financial and administrative responsibility for a project pursuant to subsection a. of this section shall not be subject to the procurement and contracting requirements of all statutes applicable to the institution of higher education at which the project is completed, including, but not limited to, the "State College Contracts Law," P.L.1986, c.43 (C.18A:64-52 et seq.), and the "County College Contracts Law," P.L.1982, c.189 (C.18A:64A-25.1 et seq.).  For the purposes of facilitating the financing of a project pursuant to subsection a. of this section, a public entity may become the owner or lessee of the project or the lessee of the land, or both, may issue indebtedness in accordance with the public entity's enabling legislation and, notwithstanding any provision of law to the contrary, shall be empowered to enter into contracts with a private entity and its affiliates without being subject to the procurement and contracting requirements of any statute applicable to the public entity provided that the private entity has been selected by the institution of higher education pursuant to a solicitation of proposals or qualifications. For the purposes of this section, a public entity shall include the New Jersey Economic Development Authority, and any project undertaken pursuant to subsection a. of this section of which the authority becomes the owner or lessee, or which is situated on land of which the authority becomes the lessee, shall be deemed a "project" under the "New Jersey Economic Development Authority Act," P.L.1974, c.80 (C.34:1B-1 et seq.).

     (2)   As the carrying out of any project described pursuant to this section constitutes the performance of an essential public function, all projects predominantly used in furtherance of the educational purposes of the institution undertaken pursuant to this section, provided it is owned by or leased to a public entity, non-profit business entity, foreign or domestic, or a business entity wholly owned by such non-profit business entity, shall at all times be exempt from property taxation and special assessments of the State, or any municipality, or other political subdivision of the State and, notwithstanding the provisions of section 15 of P.L.1974, c.80 (C.34:1B-15) or section 2 of P.L.1977, c.272 (C.54:4-2.2b) or any other section of law to the contrary, shall not be required to make payments in lieu of taxes.  The land upon which the project is located shall also at all times be exempt from property taxation.  Further, the project and land upon which the project is located shall not be subject to the provisions of section 1 of P.L.1984, c.176 (C.54:4-1.10) regarding the tax liability of private parties conducting for profit activities on tax exempt land, or section 1 of P.L.1949, c.177 (C.54:4-2.3) regarding the taxation of leasehold interests in exempt property that are held by nonexempt parties.

     c.     [Each worker employed in the construction, rehabilitation, or building maintenance services of facilities by a private entity that has entered into a public-private partnership agreement with a State or county college pursuant to subsection a. of this section shall be paid not less than the prevailing wage rate for the worker's craft or trade as determined by the Commissioner of Labor and Workforce Development pursuant to P.L.1963, c.150 (C.34:11-56.25 et seq.) and P.L.2005, c.379 (C.34:11-56.58 et seq.).] (Deleted by amendment P.L.    ,c.   ) (pending before the Legislature as this bill)

     d.    (1) All construction projects under a public-private partnership agreement entered into pursuant to this section shall contain a project labor agreement.  The project labor agreement shall be subject to the provisions of P.L.2002, c.44 (C.52:38-1 et seq.), and shall be in a manner that to the greatest extent possible enhances employment opportunities for individuals residing in the county of the project's location.  [Further, the general contractor, construction manager, design-build team, or subcontractor for a construction project proposed in accordance with this paragraph shall be registered pursuant to the provisions of P.L.1999, c.238 (C.34:11-56.48 et seq.), and shall be classified by the Division of Property Management and Construction to perform work on a public-private partnership higher education project.]  All construction projects proposed in accordance with this paragraph shall be submitted to the New Jersey Economic Development Authority for its review and approval and, when practicable, are encouraged to adhere to the Leadership in Energy and Environmental Design Green Building Rating System as adopted by the United States Green Building Council.

     (2)   Where no public fund has been established for the financing of a public improvement, the chief financial officer of the public owner shall require the private entity for whom the public improvement is being made to post, or cause to be posted, a bond guaranteeing prompt payment of moneys due to the contractor, his or her subcontractors and to all persons furnishing labor or materials to the contractor or his or her subcontractors in the prosecution of the work on the public improvement.

     e.     [A general contractor, construction manager, design-build team, or subcontractor shall be registered pursuant to the provisions of P.L.1999, c.238 (C.34:11-56.48 et seq.), and shall be classified by the Division of Property Management and Construction to perform work on a public-private partnership higher education project.] (Deleted by amendment P.L.    ,c.   ) (pending before the Legislature as this bill)

     f.     (1) On or before February 1, 2012, all projects proposed in accordance with this section shall be submitted to the New Jersey Economic Development Authority for its review and approval.  The projects are encouraged, when practicable, to adhere to the green building manual prepared by the Commissioner of Community Affairs pursuant to section 1 of P.L.2007, c.132 (C.52:27D-130.6). Any application that is deemed to be incomplete on February 2, 2012 shall not be eligible for consideration.

     (2)   (a) In order for an application to be complete and considered by the authority it shall include, but not be limited to: (i) a public-private partnership agreement between the State or county college and the private developer; (ii) a full description of the project; (iii) the estimated costs and financial documentation for the project; (iv) a timetable for completion of the project extending no more than five years after consideration and approval; and (v) any other requirements that the authority deems appropriate or necessary.

     (b)   As part of the estimated costs and financial documentation for the project the application shall contain a long-range maintenance plan and shall specify the expenditures that qualify as an appropriate investment in maintenance.  This long-range maintenance plan shall be approved by the authority pursuant to regulations promulgated by the authority that reflect national building maintenance standards and other appropriate building maintenance benchmarks.  All contracts to implement a long-range maintenance plan pursuant to this paragraph shall contain a project labor agreement.  The project labor agreement shall be subject to the provisions of P.L.2002, c.44 (C.52:38-1 et seq.), and shall be in a manner that to the greatest extent possible enhances employment opportunities for individuals residing in the county of the project's location.

     (3)   The authority shall review all completed applications, and request additional information as is needed to make a complete assessment of the project.  No project shall be undertaken until final approval has been granted by the authority; provided, however, that the authority shall retain the right to revoke approval if it determines that the project has deviated from the plan submitted pursuant to paragraph (2) of this subsection.

     (4)   The authority may promulgate any rules and regulations necessary to implement this subsection, including provisions for fees to cover administrative costs.

     Where no public fund has been established for the financing of a public improvement, the chief financial officer of the public owner shall require the private entity for whom the public improvement is being made to post, or cause to be posted, a bond guaranteeing prompt payment of moneys due to the contractor, his or her subcontractors and to all persons furnishing labor or materials to the contractor or his or her subcontractors in the prosecution of the work on the public improvement.

     g.     The provisions of P.L.2009, c.136 (C.52:18-42 et al.) shall not apply to any project carried out pursuant to this section.

(cf: P.L.2010, c.10, s.1)

 

     3.    Section 1 of P.L.2003, c.62 (C.32:11E-1.9) is amended to read as follows:

     1.    For the purposes of complying with the provisions of section 1 of P.L.1989, c.191 (C.32:11E-1.1), the Delaware River and Bay Authority created pursuant to the "Delaware-New Jersey Compact," enacted pursuant to 53 Laws of Delaware, Chapter 145 (17 Del. C.s.1701 et seq.) and P.L.1961, c.66 (C.32:11E-1 et seq.) with the consent of the Congress of the United States in accordance with Pub.L.87-678 (1962), is authorized, pursuant to the procedures set forth in section 1 of P.L.1989, c.191 (C.32:11E-1.1), to undertake a project for the development of a Renewable Energy and Agribusiness Park in Gloucester County or Salem County, including the acquisition of a site for the project and the planning, development, financing, construction, operation, maintenance, and improvement thereof, and the authority to lease the same, which shall be considered a project of the authority as defined pursuant to Article II of the "Delaware-New Jersey Compact," P.L.1961, c.66, as amended by P.L.1989, c.192 (C.32:11E-1 et seq.) and P.L.2001, c.414 (C.32:11E-1 et seq.).

     [Not less than the prevailing wage rate shall be paid to workers employed in the performance of any construction contract undertaken in connection with a project authorized pursuant to this section.  The prevailing wage rate shall be the rate determined by the Commissioner of Labor pursuant to the provisions of the "New Jersey Prevailing Wage Act," P.L.1963, c.150 (C.34:11-56.25 et seq.).]

(cf: P.L.2003, c.62, s.1)

 

     4.    Section 1 of P.L.2004, c.135 (C.32:11E-1.11) is amended to read as follows:

     1.    For the purposes of complying with the provisions of section 1 of P.L.1989, c.191 (C.32:11E-1.1), the Delaware River and Bay Authority created pursuant to the "Delaware-New Jersey Compact," enacted pursuant to 53 Laws of Delaware, Chapter 145 (17 Del. C. s. 1701 et seq.) and P.L.1961, c.66 (C.32:11E-1 et seq.) with the consent of the Congress of the United States in accordance with Pub.L.87-678 (1962), is authorized, pursuant to the procedures set forth in section 1 of P.L.1989, c.191 (C.32:11E-1.1), to undertake a project in Gloucester County for the development of a building within the South Jersey Technology Park at Rowan University, including the leasing of a site for the project and the planning, development, financing, construction, operation, maintenance, improvement and purchase thereof, and the authority to lease and to sell the same, which shall be considered a project of the authority as defined pursuant to Article II of the "Delaware-New Jersey Compact," P.L.1961, c.66, as amended by P.L.1989, c.192 (C.32:11E-1 et seq.), P.L.2001, c.414 (C.32:11E-1 et seq.) and P.L.2003, c.192 (C.32:11E-1 et seq.)

     [Not less than the prevailing wage rate shall be paid to workers employed in the performance of any construction contract undertaken in connection with a project authorized pursuant to this section.  The prevailing wage rate shall be the rate 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.).]

(cf: P.L.2004, c.135, s.1)

 

     5.    Section 4 of P.L.2003, c.182 (C.34:1B-181) is amended to read as follows:

     4.    a.  There is created in the authority the New Jersey Film Production Assistance Program.  The purpose of the program shall be to attract film production companies with financial assistance from the authority in order to promote and encourage the development of film projects and investments by film production companies in this State.

     b.    The authority shall adopt eligibility criteria for providing financial assistance to film production companies.  These criteria shall limit financial assistance to film production companies that:

     (1)   want to engage in film projects where more than 70 percent of the shooting days take place in this State and where at least 50 percent of the amount of the below-the-line expenses of the operating budget of the film project is spent in this State;

     (2)   have obtained a minimum of one-half of the estimated total production costs from other sources; and

     (3)   [provide in their employment contracts that not less than the prevailing wage rate, as determined by the Commissioner of Labor, pursuant to the provisions of the "New Jersey Prevailing Wage Act," P.L.1963, c.150 (C.34:11-56.25 et seq.), shall be paid to workers employed in the performance of contracts in connection with a proposed project, including construction, reconstruction, rehabilitation or demolition of property and improvements thereon; and] (Deleted by amendment P.L.    ,c.   ) (pending before the Legislature as this bill)

     (4)   have posted such financial security as may be deemed to be necessary by the authority.

     c.     The authority shall provide financial assistance to eligible film production companies to facilitate their film projects in New Jersey.  In order to be eligible for the financial assistance, film production companies shall, in addition to meeting the authority's customary underwriting criteria, demonstrate to the authority's satisfaction that they meet the eligibility criteria adopted pursuant to subsection b. of this section.  If at any time the authority determines that a film production company does not meet such criteria, any financial assistance provided shall be withdrawn or any financial assistance to be provided shall be rendered null and void, as appropriate.

     d.    The authority shall utilize the program to stimulate greater investment in this State by film production companies through measures that include, but are not limited to:

     (1)   identifying low-interest loans or tax credits that may be available from the State or from federal government agencies or private organizations to promote the planning and development of film projects in this State; and

     (2)   in consultation with the Department of the Treasury, identifying existing surplus State property that could be utilized by film production companies for film projects.

(cf: P.L.2003, c.182, s.4)

 

     6.    Section 9 of P.L.2001, c.260 (C.34:8-75) is amended to read as follows:

     9.    a.  The provisions of this act shall not apply to temporary help service firms, as defined in section 1 of P.L.1989, c.331 (C.34:8-43), or farm labor crew leaders who are subject to P.L.1971, c.192 (C.34:8A-7 et seq.).

     b.    The provisions of this act shall not apply to an employing unit operating as a cooperative subject to the provisions of Subchapter T of the federal Internal Revenue Code of 1986, 26 U.S.C.s.1381 et seq.

     c.     Nothing in this act shall exempt either a client company or the covered employees leased to a client company from any applicable State, local, or federal licensing, registration or certification statutes and regulations.

     d.    Any covered employee who must be licensed, registered or certified, according to law, shall be treated as a covered employee of the client company for the purposes of the license, registration or certification.

     e.     [The provisions of the "New Jersey Prevailing Wage Act," P.L.1963, c.150 (C.34:11-56.25 et seq.) shall remain applicable in all respects to those client companies of the employee leasing company who participate in public construction contracts as set forth in that act.] (Deleted by amendment P.L.    ,c.   ) (pending before the Legislature as this bill)

(cf: P.L.2001, c.282, s.1)

 

     7.    Section 2 of P.L.2002, c.44 (C.52:38-2) is amended to read as follows:

     2.    For the purposes of this act:

     "Apprenticeship program" means a registered apprenticeship program providing to each trainee combined classroom and on-the-job training under the direct and close supervision of a highly skilled worker in an occupation recognized as an apprenticeable trade, and registered by the Bureau of Apprenticeship and Training of the U.S. Department of Labor and meeting the standards established by the bureau, or registered by a State apprenticeship agency recognized by the bureau.

     "Labor organization" means, with respect to a contracted work on a public works project, an organization which represents,for purposes of collective bargaining, employees  involved in the performance of public works contracts [and eligible to be paid prevailing wages under the "New Jersey Prevailing Wage Act", P.L.1963, c.150 (C.34:11-56.25 et seq.)] and has the present ability to refer, provide or represent sufficient numbers of qualified employees to perform the contracted work, in a manner consistent with the provisions of this act and any plan mutually agreed upon by the labor organization and the public entity pursuant to subsection g. of section 5 of this act.

     "Project labor agreement" means a form of pre-hire collective bargaining agreement covering terms and conditions of a specific project.

     "Public entity" means the State, any of its political subdivisions, any authority created by the Legislature and any instrumentality or agency of the State or of any of its political subdivisions.

     "Public works project" means any public works project for the construction, reconstruction, demolition or renovation of buildings at the public expense, other than pumping stations or water or sewage treatment plants, for which:

     (1)   [It is required by law that workers be paid the prevailing wage determined by the Commissioner of Labor pursuant to the provisions of the "New Jersey Prevailing Wage Act", P.L.1963, c.150 (C.34:11-56.25 et seq.); and] (Deleted by amendment P.L.    ,c.   ) (pending before the Legislature as this bill)

     (2)   The public entity estimates that the total cost of the project, exclusive of any land acquisition costs, will equal or exceed $5 million.

(cf: P.L.2002, c.44, s.2)

 

     8.    Section 26 of P.L.1985, c.334 (C.58:11B-26) is amended to read as follows:

     26.  a.  The trust shall adopt the rules and regulations requiring a local government unit which receives a loan or guarantee for a project to establish an affirmative action program for the hiring of minority workers in the performance of any construction contract for that project and to establish a program to provide opportunities for socially and economically disadvantaged contractors and vendors to supply materials and services for the contract, consistent with the provisions of the "Law Against Discrimination," P.L. 1945, c. 169 (C. 10:5-1 et seq.).  Not less than 10% of the amount of any contract for construction, materials or services for a project shall be awarded to small business concerns owned and controlled by socially and economically disadvantaged individuals as defined in section 8(a) and 8(d) of the "Small Business Act," Pub.L. 75-536 (15 U.S.C. s. 637(a) and (d)), and any regulations promulgated pursuant thereto.

     b.    [The trust shall adopt the rules and regulations requiring a local government unit which receives a loan or guarantee for a project to pay not less than the prevailing wage rate to workers employed in the performance of any construction contract for that project, in accordance with the rate determined by the Commissioner of Labor pursuant to P.L. 1963, c. 150 (C. 34:11-56.25 et seq.).] (Deleted by amendment P.L.    ,c.   ) (pending before the Legislature as this bill)

(cf: P.L.1985, c.334, s.26)

 

     9.    The following sections are repealed:

P.L.2004, c.127 (C.5:12-161.3 et al.);

Section 23 of P.L.2000, c.72 (C.18A:7G-23);

Section 2 of P.L.1968, c.175 (C.18A:20-4.3);

Section 3 of P.L.1968, c.175 (C.18A:20-4.4);

Section 4 of P.L.1968, c.175 (C.18A:20-4.5);

Section 1 of P.L.1979, c.303 (C.34:1B-5.1);

Section 2 of P.L.1979, c.303 (C.34:1B-5.2);

Section 3 of P.L.1979, c.303 (C.34:1B-5.3);

P.L.1963, c.150 (C.34:11-56.25 et seq.);

P.L.1996, c.71 (C.34:11-56.47);

P.L.1999, c.238 (C.34:11-56.48 et seq.);

P.L.2005, c.379 (C.34:11-56.58 et seq.);

Section 2 of P.L.2007, c.343 (C.34:13B-2.1);

Section 8 of P.L.2007, c.191 (C.40:9D-8);

P.L.2009, c.89 (C.48:2-29.47);

Section 29 of P.L.1981, c.120 (C.52:18A-78.29);

Section 5 of P.L.2007, c.137 (C.52:18A-239);

Section 59 of P.L.2002, c.43 (C.52:27BBB-57);

Section 3 of P.L.2002, c.78 (C.52:27C-73.1);

Section 9 of P.L.2006, c.16 (C.52:27I-9);

Section 14 of P.L.2010, c.51 (C.52:27I-31);

Section 42 of P.L.1983, c.530 (C.55:14K-42);

Section 14 of P.L.1985, c.227 (C.55:19-15); and

Section 19 of P.L.1996, c.62 (C.55:19-38).

 

     10.  This act shall take effect immediately.


STATEMENT

 

     This bill repeals all laws providing for the payment of prevailing wage in this State. The laws repealed by this bill include the “New Jersey Prevailing Wage Act,” P.L.1963, c.150 (C.34:11-56.25 et seq.); the act providing for the payment of prevailing wage for State building services contracts, P.L.2005, c.379 (C.34:11-56.58 et seq.); “The Public Works Contractor Registration Act,” P.L.1999, c.238 (C.34:11-56.48 et seq.); and several other statutory expansions of the “New Jersey Prevailing Wage Act.”

     The bill amends section 97 of P.L.1999, c.440 (C.2C:21-34), to remove penalties for employers who fail to pay prevailing wage. The bill also amends several other sections of law to remove statutory expansions of the “New Jersey Prevailing Wage Act,” and internal references to the act.