ASSEMBLY, No. 3156

STATE OF NEW JERSEY

216th LEGISLATURE

 

INTRODUCED MAY 15, 2014

 


 

Sponsored by:

Assemblyman  WAYNE P. DEANGELO

District 14 (Mercer and Middlesex)

Assemblyman  ANTHONY M. BUCCO

District 25 (Morris and Somerset)

 

 

 

 

SYNOPSIS

     Concerns employer contribution reports.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning employer contribution reports and amending R.S.43:21-14.

 

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

 

     1.    R.S.43:21-14 is amended to read as follows:

     43:21-14.  (a) (1) In addition to such reports as may be required under the provisions of subsection (g) of R.S.43:21-11, every employer shall file with the controller periodic contribution reports on such forms and at such times as the controller shall prescribe, to disclose the employer's liability for contributions under the provisions of this chapter (R.S.43:21-1 et seq.), and at the time of filing each contribution report shall pay the contributions required by this chapter (R.S.43:21-1 et seq.), for the period covered by such report.  The controller may require that such reports shall be under oath of the employer.  Any employer who shall fail to file any report, required by the controller, on or before the last day for the filing thereof shall pay a penalty of $10.00 for each day of delinquency until and including the fifth day following such last day and for any period of delinquency after such fifth day, a penalty of $10.00 a day or 25% of the amount of the contributions due and payable by the employer for the period covered by the report, whichever is the lesser; if there be no liability for contributions for the period covered by any contribution report or in the case of any report other than a contribution report, the employer or employing unit shall pay a penalty of $10.00 a day for each day of delinquency in filing or $50.00, whichever is the lesser; provided, however, that when it is shown to the satisfaction of the controller that the failure to file any such report was not the result of fraud or an intentional disregard of this chapter (R.S.43:21-1 et seq.), or the regulations promulgated hereunder, the controller, in his discretion, may remit or abate any unpaid penalties heretofore or hereafter imposed under this section.  On or before October 1 of each year, the controller shall submit to the Commissioner of Labor and Workforce Development a report covering the 12-month period ending on the preceding June 30, and showing the names and addresses of all employers for whom the controller remitted or abated any penalties, or ratified any remission or abatement of penalties, and the amount of such penalties with respect to each employer. Any employer who shall fail to pay the contributions due for any period, on or before the date they are required by the controller to be paid, shall pay interest on the amount thereof from such date until the date of payment thereof, at the rate of 1% a month through June 30, 1981 and at the rate of 1 1/4% a month after June 30, 1981.  Upon the written request of any employer or employing unit, filed with the controller on or before the due date of any report or contribution payment, the controller, for good cause shown, may grant, in writing, an extension of time for the filing of such report or the paying of such contribution, with interest at the applicable rate; provided no such extension shall exceed 30 days and that no such extension shall postpone payment of any contribution for any period beyond the day preceding the last day for filing tax returns under Title IX of the federal Social Security Act for the year in which said period occurs.

     (2)   (A) (i) For the first calendar [quarter] month commencing [July 1, 1984] on or after the effective date of P.L.    , c.   (C.     ) (pending before the Legislature as this bill) and each successive [quarter] month thereafter, each employer that is not a small business employer shall file a report with the controller within [30] 20 business days after the end of each [quarter] month in a form and manner prescribed by the controller, listing the name, social security number and wages paid to each employee and the number of base weeks (as defined in subsection (t) of R.S.43:21-19) worked by the employee during the calendar [quarter] month.

     (ii) For the first calendar quarter commencing on or after the effective date of P.L.    , c.   (C.       ) (pending before the Legislature as this bill) and each successive quarter thereafter, each employer that is a small business employer shall file a report with the controller within 20 business days after the end of each quarter in a form and manner prescribed by the controller, listing the name, social security number and wages paid to each employee and the number of base weeks (as defined in subsection (t) of R.S.43:21-19) worked by the employee during the calendar quarter.

     (iii) For purposes of this subparagraph, “small business employer” means an employer whose business entity is independently owned and operated and employs fewer than 50 employees during the calendar year immediately preceding the calendar year in which a report is required to be filed with the comptroller.

     (B)  Any employer who fails without reasonable cause to comply with the reporting requirements of this paragraph (2) shall be liable for a penalty in the following amount for each employee with respect to whom the employer is required to file a report but who is not included in the report or for whom the required information is not accurately reported for each employee required to be included, whether or not the employee is included:

     (i)   For the first failure for one [quarter] month in any [eight] 24 consecutive [quarters] months, or for the first failure for one quarter in any eight consecutive quarters, in the case of a small business employer, $5.00 for each employee;

     (ii)  For the second failure for any [quarter] month in any [eight] 24 consecutive [quarters] months, or for the second failure for any quarter in any eight consecutive quarters, in the case of a small business employer, $10.00 for each employee; and

     (iii) For the third failure for any [quarter] month in any [eight] 24 consecutive [quarters] months, or for the third failure for any quarter in any eight consecutive quarters, and for any failure in any [eight] 24 consecutive [quarters] months, or for any failure for any eight consecutive quarters, in the case of a small business employer, which failure is subsequent to the third failure, $25.00 for each employee.

     (C)  Information reported by employers as requested by this paragraph (2) shall be used by the Department of Labor and Workforce Development for the purpose of determining eligibility for benefits of individuals in accordance with the provisions of R.S.43:21-1 et seq.  Notwithstanding the provisions of subsection (g) of R.S.43:21-11, the Department of Labor and Workforce Development is hereby authorized to provide the Department of Human Services and the Higher Education Assistance Authority with information reported by employers as required by this paragraph (2).  For each fiscal year, the Director of the Division of Budget and Accounting of the Department of the Treasury shall charge the appropriate account of the Department of Human Services and the Higher Education Assistance Authority in amounts sufficient to reimburse the Department of Labor and Workforce Development for the cost of providing information under this subparagraph (C).

     (D)  For the purpose of administering the provisions of this paragraph (2), all appropriations, files, books, papers, records, equipment and other property, and employees currently assigned to the Division of Taxation for the implementation of the "Wage Reporting Act," P.L.1980, c.48 (C.54:1-55 et seq.), shall be transferred to the Department of Labor and Workforce Development as of September 1, 1984 in accordance with the provisions of the "State Agency Transfer Act," P.L.1971, c.375 (C.52:14D-1 et seq.).

     (b)   The contributions, penalties, and interest due from any employer under the provisions of this chapter (R.S.43:21-1 et seq.), from the time they shall be due, shall be a personal debt of the employer to the State of New Jersey, recoverable in any court of competent jurisdiction in a civil action in the name of the State of New Jersey; provided, however, that except in the event of fraud, no employer shall be liable for contributions or penalties unless contribution reports have been filed or assessments have been made in accordance with subsection (c) or (d) of this section before four years have elapsed from the last day of the calendar year with respect to which any contributions become payable under this chapter (R.S.43:21-1 et seq.), nor shall any employer be required to pay interest on any such contribution unless contribution reports were filed or assessments made within such four-year period; provided further that if such contribution reports were filed or assessments made within the four-year period, no civil action shall be instituted, nor shall any certificate be issued to the Clerk of the Superior Court under subsection (e) of this section, except in the event of fraud, after six years have elapsed from the last day of the calendar year with respect to which any contributions become payable under this chapter (R.S.43:21-1 et seq.), or July 1, 1958, whichever is later. Payments received from an employer on account of any debt incurred under the provisions of this chapter (R.S.43:21-1 et seq.) may be applied by the controller on account of the contribution liability of the employer and then to interest and penalties, and any balance remaining shall be recoverable by the controller from the employer.  Upon application therefor, the controller shall furnish interested persons and entities certificates of indebtedness covering employers, employing units and others for contributions, penalties and interest, for each of which certificates the controller shall charge and collect a fee of $2.00 per name; no such certificate to be issued, however, for a fee of less than $10.00.  All fees so collected shall be paid into the unemployment compensation administration fund.

     (c)   If any employer shall fail to make any report as required by the rules and regulations of the division pursuant to the provisions of this chapter (R.S.43:21-1 et seq.), the controller may make an estimate of the liability of such employer from any information it may obtain, and, according to such estimate so made, assess such employer for the contributions, penalties, and interest due the State from him, give notice of such assessment to the employer, and make demand upon him for payment.

     (d)   After a report is filed under the provisions of this chapter (R.S.43:21-1 et seq.) and the rules and regulations thereof, the controller shall cause the report to be examined and shall make such further audit and investigation as it may deem necessary, and if therefrom there shall be determined that there is a deficiency with respect to the payment of the contributions due from such employer, the controller shall assess the additional contributions, penalties, and interest due the State from such employer, give notice of such assessment to the employer, and make demand upon him for payment.

     (e)   As an additional remedy, the controller may issue to the Clerk of the Superior Court of New Jersey a certificate stating the amount of the employer's indebtedness under this chapter (R.S.43:21-1 et seq.) and describing the liability, and thereupon the clerk shall immediately enter upon his record of docketed judgments such certificate or an abstract thereof and duly index the same.  Any such certificate or abstract, heretofore or hereafter docketed, from the time of docketing shall have the same force and effect as a judgment obtained in the Superior Court of New Jersey, and the controller shall have all the remedies and may take all the proceedings for the collection thereof which may be had or taken upon the recovery of such a judgment in a civil action upon contract in said court. Such debt, from the time of docketing thereof, shall be a lien on and bind the lands, tenements and hereditaments of the debtor.

     The Clerk of the Superior Court shall be entitled to receive for docketing such certificate, $0.50, and for a certified transcript of such docket, $0.50. If the amount set forth in said certificate as a debt shall be modified or reversed upon review, as hereinafter provided, the Clerk of the Superior Court shall, when an order of modification or reversal is filed, enter in the margin of the docket opposite the entry of the judgment, the word "modified" or "reversed," as the case may be, and the date of such modification or reversal.

     The employer, or any other party having an interest in the property upon which the debt is a lien, may deposit the amount claimed in the certificate with the Clerk of the Superior Court of New Jersey, together with an additional 10% of the amount thereof, or $100.00, whichever amount is the greater, to cover interest and the costs of court, or in lieu of depositing the amount in cash, may give a bond to the State of New Jersey in double the amount claimed in the certificate, and file the same with the Clerk of the Superior Court. Said bond shall have such surety and shall be approved in the manner required by the Rules Governing the Courts of the State of New Jersey.

     After the deposit of said money or the filing of said bond, the employer, or any other party having an interest in the said property, may, after exhausting all administrative remedies, secure judicial review of the legality or validity of the indebtedness or the amount thereof, and the said deposit of cash shall be as security for, and the bond shall be conditioned to prosecute, the judicial review with effect.

     Upon the deposit of said money or the filing of the said bond with the Clerk of the Superior Court, all proceedings on such judgment shall be stayed until the final determination of the cause, and the moneys so deposited shall be subject to the lien of the indebtedness and costs and interest thereon, and the lands, tenements, and hereditaments of said debtor shall forthwith be discharged from the lien of the State of New Jersey and no execution shall issue against the same by virtue of said judgment.

     Notwithstanding the provisions of subsections (a) through (c) of this section, the Department of Labor and Workforce Development may, with the concurrence of the State Treasurer, when all reasonable efforts to collect amounts owed have been exhausted, or to avoid litigation, reduce any liability for contributions, penalties and interest, provided no portion of those amounts represents contributions made by an employee pursuant to subsection (d) of R.S.43:21-7.

     (f)   If, not later than two years after the calendar year in which any moneys were erroneously paid to or collected by the controller, whether such payments were voluntarily or involuntarily made or made under mistake of law or of fact, an employer, employing unit, or employee who has paid such moneys shall make application for an adjustment thereof, the said moneys shall, upon order of the controller, be either credited or refunded, without interest, from the appropriate fund.  For like cause and within the same period, credit or refund may be so made on the initiative of the controller.

     (g)   All interest and penalties collected pursuant to this section shall be paid into a special fund to be known as the unemployment compensation auxiliary fund; all moneys in this special fund shall be deposited, administered and disbursed in the same manner and under the same conditions and requirements as is provided by law for other special funds in the State Treasury, and shall be expended, under legislative appropriation, for the purpose of aiding in defraying the cost of the administration of this chapter (R.S.43:21-1 et seq.); for the repayment of any interest bearing advances made from the federal unemployment account pursuant to the provisions of section 1202(b) of the Social Security Act, 42 U.S.C. s.1322; and for essential and necessary expenditures in connection with programs designed to stimulate employment, as determined by the Commissioner of Labor and Workforce Development, except that any moneys in this special fund shall be first applied to aiding in the defraying of necessary costs of the administration of this chapter (R.S.43:21-1 et seq.) as determined by the Commissioner of Labor and Workforce Development.  The Treasurer of the State shall be ex officio the treasurer and custodian of this special fund and, subject to legislative appropriation, shall administer the fund in accordance with the directions of the controller.  Any balances in this fund shall not lapse at any time, but shall be continuously available, subject to legislative appropriation, to the controller for expenditure.  The State Treasurer shall give a separate and additional bond conditioned upon the faithful performance of his duties in connection with the unemployment compensation auxiliary fund, in an amount to be fixed by the division, the premiums for such bond to be paid from the moneys in the said special fund.

     (h)   All disputes under R.S.43:21-1 et seq. unless specifically indicated otherwise, shall be resolved in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

(cf: P.L.2005, c.239, s.3)

 

     2.    This act shall take effect on the first day of the month next following the date of enactment by at least 180 days.


STATEMENT

 

     This bill shortens the time period in which certain employers are required to file reports on wages earned by their employees, and changes the date those reports are required to be filed with the Department of Labor and Workforce Development.  The purpose of this bill is to provide a more timely system for the reporting of wages to the department to ensure that unemployed individuals are collecting an accurate level of benefits and to assist the department in identifying individuals who may be collecting benefits for which they are not eligible.

     The Office of the State Auditor completed an audit of the department’s Unemployment Insurance Services program for the period of July 1, 2009 through June 30, 2011 focused on benefit payments.  The audit uncovered various mechanisms of the benefit payment system that could be improved or updated to improve the collection of data and provide a more timely analysis and verification of wages earned and beneficiary’s status.

     The audit detailed the estimated time lag of wage reporting by employers of as much as four months.  Currently, employers must report the wages earned by the employee on a standardized Wage Record System for New Jersey (WR-30) form.  This is a quarterly form required to be submitted by the employer within 30 days of the end of the calendar quarter.  Therefore, wages earned in the first quarter (January through March 30) may not be reported to the department until April 30.  If an individual is collecting unemployment benefits, but becomes employed at some point in the quarter and does not voluntarily notify the department of the subsequent employment, the department would not be aware of that employment for up to 30 days after the end of the quarter; thus, allowing the individual to fraudulently collect unemployment benefits for a maximum of 17 weeks.

     This bill requires that, for the first calendar month commencing on or after the effective date of the bill and each month thereafter, each employer that is not a small business employer must file the required reports on wages earned by employees on a monthly, instead of a quarterly, basis.  The bill provides that the monthly reports required to be filed by each employer that is not a small business employer must be filed with the department within 20 business days after the end of the month to which the report applies. 

     Under the bill, the shortened period of time for filing reports on wages earned by employees will not apply to an employer that is a small business employer.  The bill provides that an employer that is a small business employer will continue to file the report on wages earned by employees on a quarterly basis, within 20 business days after the end of the calendar quarter to which the report applies. 

     The bill defines a “small business employer” as an employer whose business entity is independently owned and operated and employs fewer than 50 employees during the calendar year immediately preceding the calendar year in which a report is required to be filed. 

     The bill takes effect on the first day of the month next following the date of enactment by at least 180 days.