ASSEMBLY, No. 1526

STATE OF NEW JERSEY

218th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2018 SESSION

 


 

Sponsored by:

Assemblyman  ANDREW ZWICKER

District 16 (Hunterdon, Mercer, Middlesex and Somerset)

Assemblyman  GORDON M. JOHNSON

District 37 (Bergen)

 

Co-Sponsored by:

Assemblywoman Downey

 

 

 

 

SYNOPSIS

     Concerns payment of freelance workers.

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel.

  


An Act concerning the payment of freelance workers 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 a freelance worker in any occupation, industry, trade, business or service for compensation 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.

     “Compensation” means the earnings of a freelance worker. The term “compensation” includes reimbursement for expenses.

     “Freelance worker” means a sole proprietor who is not an employee and who is hired or retained as a freelance worker by a client to provide services in exchange for compensation in an amount equal to or greater than $600. “Freelance worker” shall not mean:

     a.     any person who is a licensed medical professional;

     b.    any person 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 person in the practice of law;

     c.     any person who is licensed by the New Jersey Real Estate Commission pursuant to R.S.45:15-1 et seq.;

     d.    any person who contracts to solicit orders in New Jersey as the sales representative of a principal; or

     e.     any person subject to a collective bargaining agreement that specifies wages, terms and conditions of employment.

     “Principal” means a person or company engaged in the business of manufacturing, who:

     a.     manufactures, produces, imports, or distributes a product for wholesale;

     b.    contracts with a sales representative to solicit orders for the product; and

     c.     compensates the sales representative in whole or in part by commission.

     2.    a.  A freelance worker shall be paid the compensation earned in accordance with agreed work terms.  The contract between the freelance worker and client shall be reduced to writing, signed by the freelance worker, kept on file by the client for a period of not less than six years, and made available to the commissioner upon request.  The written contract shall include the name and mailing address of both the client and the freelance worker, an itemization of all services to be provided by the freelance worker, a description of how compensation that is earned and payable shall be calculated, and the date on which the client shall pay the contracted compensation or the mechanism by which that date will be calculated. 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 freelance worker has presented are the agreed work terms.

     b.    The contracted compensation shall be paid to the freelance worker either on or before the date the compensation 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 freelance worker shall be paid the compensation earned not later than 30 days after the completion of the freelance worker’s services under the contract.  Once the freelance worker has commenced performance of the services under the contract, the client shall not require as a condition of timely payment that the freelance worker accept less compensation than the amount of the contracted compensation.

     c.     No client shall threaten, intimidate, discipline, harass, deny a work opportunity to or discriminate against a freelance worker, or take any other action that penalizes a freelance worker for, or is reasonably likely to deter a freelance worker from, exercising or attempting to exercise any right provided under this act, or from obtaining a future work opportunity because the freelance worker has done so.

 

     3.    Any freelance worker may file with the commissioner a complaint regarding a violation of any of the provisions of section 2 of this act for an investigation of the complaint and statement setting the appropriate remedy, if any.  Failure of a client to keep adequate records shall not constitute a bar to the filing of a complaint by a freelance worker.

 

     4.    The commissioner may bring any legal action necessary, including administrative action, on behalf of any freelance worker that alleges a violation of any of the provisions of section 2 of this act.  In addition to any remedies provided pursuant to any other laws of this State, the commissioner may assess against the client an additional amount as liquidated damages, unless the client proves a good faith basis for believing that its violation was in compliance with this act.  Liquidated damages shall be calculated by the commissioner as no more than 100 percent of the total amount of the underlying contract.

 

     5.    If the commissioner determines that a client has violated a provision of this act by failing to pay the compensation of a freelance worker, the commissioner shall issue to the client an order directing compliance therewith, which shall describe particularly the nature of the alleged violation.

 

     6.    a.  The commissioner shall provide to each freelance worker who files a complaint regarding a violation of any of the provisions of section 2 of this act with a description of the anticipated processing of the complaint, including the investigation, case conference, potential civil and criminal penalties, and collection procedures.

     b.    Each freelance worker and the representative of the freelance worker, if any, shall be notified in a timely manner by the commissioner of the following:

     (1)   any case conference before it is held, with the opportunity to attend; and

     (2)   any award and collection of back compensation, civil penalties, any intent to seek criminal penalties, and, in the event that criminal penalties are sought, a notification of the outcome of prosecution.

     c.     At the time the commissioner receives a complaint alleging a violation of a provision of this act, the commissioner shall refer the freelance worker to the navigation program provided pursuant to section 9 of this act, in addition to providing the information required pursuant to subsection a. of this section.

 

     7.    Any client who does not pay the compensation of its freelance workers 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 compensation of any of its freelance workers 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.

 

     8.    a.  Except as otherwise provided by law, a freelance worker 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)   Within 10 days after having commenced a civil action pursuant to this section, a plaintiff shall serve a copy of the complaint upon the commissioner or the commissioner’s designee.  The failure to serve a complaint to the commissioner shall not adversely affect any plaintiff’s cause of action.

     (4)   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.

 

      9.   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 commissioner shall make available model contracts on the website for use by the general public at no cost.  The model contracts shall be made available in English, Spanish, and any other language that the commissioner determines is the first language of a significant number of workers in the State. This determination shall be, at the discretion of the commissioner, based on the numerical percentages of all workers in the State for whom English or Spanish is not a first language or in a manner consistent with any regulations promulgated by the commissioner for this purpose.

      c.    The navigation program shall provide the following:

     (1)   general court information and information about procedures under this act;

     (2)   information about available templates and relevant court forms;

     (3)   general information about classifying persons as employees or freelance workers;

     (4)   information about obtaining translation and interpretation services and other courtroom services;

     (5)   a list of organizations that can be used for the identification of attorneys; and

     (6)   other relevant information, as determined by the commissioner, related to the submission of a complaint by a freelance worker or the commencement of a civil action under the provisions of this act by a freelance worker.

 

     10.  This act shall take effect immediately.

 

 

STATEMENT

 

      This bill provides that a freelance worker must be paid the compensation earned according to work terms agreed to by the freelance worker and its client, and requires the Department of Labor and Workforce Development to act as a regulatory agency in certain circumstances regarding these work agreements.  The bill defines “client” as a sole proprietorship, partnership, corporation, limited liability company, association or other business entity or a nonprofit organization contracting with a freelance worker for compensation 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.

      The bill provides that the following categories of workers are not considered freelance workers, and are exempt from the provisions of the bill:

      1.   licensed medical professionals;

      2.   persons engaged in the practice of law;

      3.   New Jersey Real Estate Commission licensees;

      4.   certain sales representatives that contract with manufacturers; and

      5.   any person subject to a collective bargaining agreement that specifies wages and conditions of employment.

      Under the bill, a freelance worker must be paid the compensation earned in accordance with the agreed work terms, which must be reduced to writing.  If a freelance worker and client did not agree on a date for payment of compensation earned or a mechanism by which that date is determined, then the freelance worker must be paid the compensation earned not later than 30 days after the completion of the freelance worker’s services under the written contract.  The bill also provides that the contract must be signed by the freelance worker, kept on file by the client for a period of not less than six years, and made available to the Commissioner of Labor and Workforce Development upon request.

      It is a violation of the bill if a client is found to threaten, intimidate, discipline, harass, deny a work opportunity to or discriminate against a freelance worker, or take any other action that penalizes a freelance worker for, or is reasonably likely to deter a freelance worker from, exercising or attempting to exercise any right provided under the bill, or from obtaining a future work opportunity because the freelance worker has done so.

      The bill provides that any freelance worker may file with the commissioner a complaint regarding a violation of the provisions of the bill by a client, for an investigation of the complaint and a statement setting the appropriate remedy, if any.  The bill provides that the commissioner may bring any legal action necessary, including administrative action, on behalf of any freelance worker that alleges a violation of the provisions of the bill.  The commissioner may also assess against the client an amount as liquidated damages, unless the client proves a good faith basis for believing that its violation was in compliance with the provisions of the bill.  Liquidated damages must be calculated by the commissioner as no more than 100 percent of the total amount of the underlying contract.

      The bill also provides that if the commissioner determines that a client has failed to pay the compensation of its freelance workers, the commissioner shall issue to the client an order directing payment, which will describe the nature of the alleged failure to pay.

      Each freelance worker who files a complaint regarding a violation of a provision of this bill will be provided with a description of the anticipated processing of the complaint, including the investigation, case conference, potential civil and criminal penalties, and collection procedures by the commissioner, in addition to a referral to a navigation program established by the commissioner.  Each freelance worker and any representative of the freelance worker will be notified in a timely manner by the commissioner of the following: any case conference before it is held, with the opportunity to attend; any award, collection of back compensation, civil penalties, any intent to seek criminal penalties; and a notification of the outcome of any prosecution.

      The bill provides that any client who does not pay the compensation of all of its freelance workers in accordance with the provisions of this bill, and the officers, agents, or representatives of any client who knowingly permit the client to violate the provisions of this bill, will be guilty of a disorderly persons offense for a 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, will be guilty of a crime of the fourth degree.  A disorderly persons offense is punishable by a term of imprisonment up to six months or a fine not to exceed $1,000, or both.  A crime of the fourth degree is punishable by a term of imprisonment up to 18 months or a fine not to exceed $10,000, or both.

      The bill also provides that a freelance worker alleging a violation of a provision of the bill may bring an action in any court of competent jurisdiction for certain damages.  The remedies provided by the bill with respect to a private action brought by a freelance worker, and any other remedies provided in the bill, may be enforced simultaneously or consecutively so far as not inconsistent with each other.

      Finally, the navigation program established by the commissioner under the bill must include assistance from 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.  The navigation program must provide the following: general court information and information about procedures under the bill; information about available templates and relevant court forms; general information about classifying persons as employees or freelance workers; information about obtaining translation and interpretation services and other courtroom services; a list of organizations that can be used for the identification of attorneys; and other relevant information, as determined by the commissioner, related to the submission of a complaint by a freelance worker or the commencement of a civil action under the provisions of the bill by a freelance worker.