ASSEMBLY, No. 2487

 

STATE OF NEW JERSEY

 

INTRODUCED NOVEMBER 7, 1996

 

 

By Assemblyman GUSCIORA, Assemblywoman TURNER, Assemblymen Dalton and Greenwald

 

 

An Act permitting public employees to choose compensatory time in lieu of overtime pay and revising parts of the statutory law.

 

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

 

    1. (New section) Sections 3 through 7 and 11 of this amendatory and supplementary act shall be known and may be cited as the "Public Employees' Flexibility Act."

 

    2. Section 1 of P.L.1951, c.51 (C.52:14-17.13) is amended to read as follows:

    1. The work week for basic annual salary for employees in the State service, insofar as practicable and except as provided in section 2 of this act, shall not be more than 40 hours; and, notwithstanding any inconsistent provisions of law, any employee in the State service who is authorized or required to work in any week more than the hours of work established as the regular and normal work week for that class or agency shall be eligible to receive, at the employee's discretion [of the department head with the approval of the State Treasurer, the President of the Civil Service Commission and the Director of the Division of Budget and Accounting in the Department of Treasury], either (1) compensation for the hours worked in excess of the established work week for that class or agency at a rate representing 1 1/2 times the individual's hourly rate calculated by a proration of the annual salary rate of the individual employee, or (2) compensatory time off at the rate of 1 1/2 hours for each hour worked in excess of the established work week for that class or agency, pursuant to sections 3 through 7 of P.L. , c. (C. )(pending in the Legislature as this bill).

(cf: P.L.1968, c.52, s.1)

 

    3. (New section) a. An employee may elect to receive compensatory time off at a rate of not less than one and one-half hours for each hour of employment for which overtime compensation is required by section 1 of P.L.195l, c.51 (C.52:14-17.13) in lieu of monetary overtime compensation, pursuant to this section and sections 4 through 7 of this amendatory and supplementary act.

    b. Provided that the employee has not accrued compensatory time in excess of the limits applicable to the employee prescribed by subsection d. of section 4 of this act, an employer may provide compensatory time off under subsection a. only:

    (1) pursuant to applicable provisions of a collective bargaining agreement; or

    (2) in the case of employees who are not subject to a collective bargaining agreement, if the employee knowingly and voluntarily elects to enter into a written agreement with the employer before the performance of the work.

    c. For the purpose of this section and sections 4 through 7 of this amendatory and supplementary act, the terms "employer" and "employee" shall have the same meaning as in the "New Jersey Employer-Employee Relations Act," P.L.1941, c.100 (C.34:13A-1 et seq.).

 

    4. (New section) a. Except as provided in subsection d. of this section, an employee may not accrue more than 240 hours of compensatory time in any calendar year. Not later than January 31 of each calendar year, the employee's employer shall provide monetary compensation for any compensatory time off accrued during the preceding calendar year which was not used prior to December 31 of the preceding year at the overtime rate established by section 3 of this act. An employer may designate and communicate to the employer's employees a 12-month period other than the calendar year, in which case such compensation shall be provided not later than 31 days after the end of that 12-month period.

    b. (1) The employer may provide monetary compensation for an employee's unused compensatory time off in excess of 80 hours at any time after giving the employee at least 30 days written notice. Such compensation shall be provided at the overtime rate.

    (2) An employee may cancel an agreement for compensatory time off executed pursuant to paragraph (2) of subsection b. of section 3 of this act at any time upon written notice to the employer.

    c. An employee may at any time request in writing that monetary compensation at the overtime rate be provided for any or all compensatory time accrued which has not yet been used. The employer shall provide monetary compensation at the overtime rate to the employee for unused accrued compensatory time not later than 14 days after receipt of the written request.

    d. An employee who has accrued 240 hours of compensatory time off shall, for additional overtime hours of work, be paid overtime compensation; except that if the work for which compensatory time may be provided includes work in a public safety activity, an emergency response activity, or a seasonal activity, the employee engaged in that work may accrue not more than 480 hours of compensatory time each year. An employee who has accrued 480 hours of compensatory time off shall, for additional overtime hours of work, be paid overtime compensation.

    e. Upon the voluntary or involuntary termination of employment, an employee who has accrued compensatory time off authorized to be provided pursuant to this act shall be paid for the unused compensatory time at the overtime rate. Any payment owed to an employee under this section for unused compensatory time shall be considered unpaid overtime compensation.

 

    5. (New section) An employer which provides compensatory time to employees pursuant to section 3 of this act shall not directly or indirectly intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any employee, or take any retaliatory action against an employee because the employee:

    a. Enters into an agreement to accrue compensatory time in lieu of overtime compensation, or objects, or refuses to enter into such an agreement;

    b. Uses, objects, or refuses to use, compensatory time in lieu of overtime compensation;

    c. Requests monetary compensation at the overtime rate in lieu of using accrued compensatory time; or

    d. Exercises, or attempts to exercise any other right granted under this act.

    In addition to the penalties and right of action provided in section 7 of this act, the Commissioner of Labor shall investigate an employee's claim for accrued compensatory time or monetary overtime compensation as provided in R.S.34:11-58.

 

    6. (New section) An employee who has accrued compensatory time off authorized to be provided pursuant to this act and who has requested the use of that time in writing shall be permitted by the employee's employer to use that time not later than 30 days after making the request.

 

    7. (New section) An employer which violates sections 3 through 6 of this act shall be liable to the employee affected for liquidated damages in the amount of three times the overtime rate of compensation, reduced by the monetary amount of compensatory time off used by that employee.


    8. Section 1 of P.L.1967, c. 216 (34:11-56a25.1) is amended to read as follows:

    1. No claim for unpaid minimum wages, unpaid overtime compensation, unused compensatory time as provided in section 4 of P.L. , c. (C. )(now pending in the Legislature as this bill), or other damages under this act shall be valid with respect to any such claim which has arisen more than 2 years prior to the commencement of an action for the recovery thereof. In determining when an action is commenced, the action shall be considered to be commenced on the date when a complaint is filed with the Commissioner of the Department of Labor [and Industry] or the Director of the [Wage and Hour Bureau]Division of Workplace Standards, and notice of such complaint is served upon the employer; or, where an audit by the Department of Labor [and Industry] discloses a probable cause of action for unpaid minimum wages, unpaid overtime compensation, unused compensatory time, or other damages, and notice of such probable cause of action is served upon the employer by the Director of the [Wage and Hour Bureau]Division of Workplace Standards; or where a cause of action is commenced in a court of appropriate jurisdiction.

(cf: P.L.1967, c.216, s.1)

 

    9. R.S.34:11-58 is amended to read as follows:

    34:11-58. The commissioner is authorized and empowered to investigate any claim for wages, authorized and accrued compensatory time, or monetary overtime pay 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 $10,000.00.

    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.

    The commissioner is authorized to supervise the payment of amounts 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.

(cf: P.L.1991, c.205, s.4)

 

    10. R.S.34:11-59 is amended to read as follows:

    34:11-59. An employee may file a written claim for wages, authorized and accrued compensatory time, or monetary overtime pay against an employer in the wage collection division of the department which shall be entered in a book to be called the wage collection docket.

    Upon the filing of claim, the department shall issue a summons returnable between the hours of nine o'clock in the forenoon and three o'clock in the afternoon, both inclusive, which shall also specify a certain time and place for the appearance of the defendant, not less than five nor more than fifteen days from the date of such process, which summons shall be served at least five days before the time of appearance mentioned therein, by reading the same to the defendant and delivering to him a copy thereof if he shall be found and if not found by leaving a copy thereof in his house or with some other person of his family over the age of fourteen years. Such persons being served with summons and complaint shall be informed of the contents thereof and the person serving the summons shall indorse thereon a return of the time and manner he executed the same, and sign his name thereon. At the time and place specified in the summons, the commissioner shall inquire in a summary way into the merits of the employee's claim and defenses of the defendant, if any.

(cf: R.S.34:11-59)

 

    11. (New section) The Commissioner of Labor shall promulgate rules and regulations pursuant to the "Administrative Procedures Act," P.L.1968, c.410 (C.52:14B-1 et seq.) to effectuate the purposes of this amendatory and supplementary act.

 

    12. This act shall take effect immediately, and the Commissioner of Labor shall take such actions as may be necessary to effectuate the provisions of this act, except that sections 1 through 10 shall remain inoperative until 180 days after the date of enactment.

 

 

STATEMENT

 

    This bill, the "Public Employees' Flexibility Act," allows public employees to elect whether to receive compensatory time off in lieu of overtime pay. It is intended to give working families time off to meet with their children's teachers, attend school functions, care for sick children or elderly relatives, in short: to give working parents the flexibility they need to cope with the exigencies of family life.

    Public employees may receive up to 240 hours per year of compensatory time off in lieu of monetary overtime compensation. Only the employee may elect to choose this form of overtime compensation, which election would be memorialized in the form of a written agreement. An employee may cancel such an agreement at any time. Also, an employee may elect at any time to receive monetary compensation in lieu of compensatory time. Compensatory overtime for employees already represented by a union will be governed by the collective bargaining agreement. An employee will receive any unused compensatory time at the regular overtime rate of compensation upon the voluntary or involuntary termination of employment.

    The bill contains anti-coercion provisions to prevent employers from interfering with their employees' decision to receive or use compensatory time off or monetary overtime payments. If the employer violates any provision of the bill, it will be liable to the employee for three times the monetary value of the compensatory time off due to the employee. The Commissioner of Labor is authorized to investigate claims and pursue payment for the employee for accrued compensatory time and monetary overtime compensation valued at less than $10,000.

 

 

                             

"Public Employees' Flexibility Act."