2009 New Jersey Code
TITLE 34 - LABOR AND WORKMEN'S COMPENSATION
Section 34:8
34:8-66 - Registration of prepaid computer job matching service or job listing service; annual fee; bond; contract; refund conditions; violations 

34:8-66.     Registration of prepaid computer job matching service or job listing service; annual fee; bond; contract; refund conditions; violations 
     a.   Every prepaid computer job matching service or job listing service operating or providing services or products within this State shall, within 60 days following the effective date of this act and annually thereafter, register, in writing, with the chief on a form prescribed by regulation. 

    b.   Each registration form shall state the service's name and fictitious or trade name used in its operation, each primary location, including street and street number of the building and place where its business is to be conducted, and the names and residence addresses of its principal owners or officers. 

    c.   In addition to registering pursuant to this section, a prepaid computer matching service or job listing service shall notify the bureau in writing whenever it utilizes any location, including mobile units, other than its primary location for the provision of services or products to job seekers.

    d.   Every agent, duly authorized and empowered by the owner of the registered service to solicit business or otherwise act as an agent of the registered service, shall, within 60 days following the effective date of this act and annually thereafter, register, in writing, with the chief on a form prescribed by regulation. 

    e.   The director shall establish by rule and collect an annual fee from service and agent registrants, which shall not be more than that paid by employment agencies or agents, to be used to the extent necessary to defray all expenses incurred by the bureau in the performance of its duties under this section. 

    f.   Each service applicant shall at the time of its initial registration with the director and annually thereafter, post a bond in the amount of $10,000 with a duly authorized surety company as surety, to be approved by the director.  The bond shall be retained by the chief until 90 days after either the expiration or revocation of the registration. The director shall promulgate rules and regulations setting forth the terms and conditions of this bond and supply the service applicant firm with an approved form. 

    g.   Prior to the acceptance of a fee from a job seeker, a registered service shall provide the job seeker with a written contract which shall include the following:

      (1)  The name of the registered service and the address and telephone number of each primary or other location of the registered service providing the listing to the job seeker.

      (2)  Acknowledgement of receipt of the registered service's fee schedule.

      (3)  A description of the service or product to be performed or product to be provided by the registered service, including significant conditions, restrictions, and limitations where applicable.

      (4)  A description of the job seeker's specifications for the employment opportunity, including, but not limited to, the following:

      (a)  Type of job.

      (b)  Interests of job seeker.

      (c)  Qualifications of job seeker.

      (d)  Salary, benefits, and other conditions of employment.

      (e)  Location of job.

      (5)  The contract expiration date, which shall not be later than 90 days from the date of execution of the contract.

      (6)  A clause setting forth the right to a full refund of the fee paid in advance.

      (7)  The signature of the registered service's agent.

      (8)  The following statement, printed on the face of the contract in type no smaller than 10-point bold-faced type:

      "This service is registered with the Bureau of Employment and Personnel Services of the State of New Jersey, (current address of bureau).  Inquiries concerning your contract may be sent to this address."

 

    (9)  At the bottom of the contract a notice to the effect that the contract is the property of the job seeker and shall not be taken from the job seeker.

 

    h.   Every contract or receipt shall be made and numbered consecutively in original and duplicate, both to be signed by the job seeker and the service's agent.  The original shall be given to the job seeker and the duplicate shall be kept on file at the service's primary location. 

    i.   The form of contract proposed to be used by a registrant to effect compliance with this section shall be filed with the bureau prior to use.  Any modification of a form previously filed with the bureau, including a change in the name or a primary location of the registered service, shall also be filed prior to use. 

    j.   A registered service shall refund in full the advance fee paid by a job seeker if the service does not, within five calendar days after execution of the contract, supply at least three employment opportunities then available to the job seeker and meeting the specifications of the contract.  A registered service will be deemed to have supplied information meeting the specifications of the job seeker if the information supplied meets the contract specifications with reference to: 

    (1)  Name of employer and type of job;

 

    (2)  Interests of job seeker;

 

    (3)  Qualifications of job seeker;

 

    (4)  Salary, benefits, and other conditions of employment;

 

    (5)  Location of job; and

 

    (6)  Any other specification expressly set forth in the contract.

 

    A demand for the return of the fee shall be made by or on behalf of the job seeker within 10 calendar days following the expiration of the five-day period referred to above by delivery or by registered or certified mail to the address of the office or location set forth in the contract. 

    k.   A registered service shall refund any amount in excess of a $25 service charge to the job seeker if the job seeker does not obtain a job, provided that the job seeker demands a return of that part of the fee within 10 calendar days after the expiration of the contract. 

    l.   If employment, once obtained, lasts less than 90 days, the fee paid shall be refunded as specified in subsection b. of section 10 of this act.

 

    m.   Each contract shall also contain refund provisions, approved by the bureau, which shall, unless different language is approved in writing by the bureau prior to use, read as follows:

                              "RIGHT TO REFUND

      If within five calendar days after payment of any advance fee, the registrant has not supplied the job seeker with at least three available employment opportunities meeting the specifications of the contract as to (1) name of the employer and type of job; (2) interest of job seeker; (3) qualifications of job seeker; (4) salary, benefits, and other conditions of employment; (5) location of job; and (6) any other specification expressly set forth in the contract, the full amount of the fee paid shall be refunded to the job seeker within 10 calendar days after the expiration of the five-day period." 

    If the job seeker does not obtain a job through the services of the registered service, any amount paid in fees in excess of a $25 service charge shall be refunded to the job seeker, upon demand by the job seeker made within 10 calendar days of the expiration of the contract. 

    n.   Every registered service shall respond, in writing, within nine calendar days of receipt of any written complaint by a job seeker, stating the registered service's position with respect to that complaint.  A copy of a job seeker's complaint and the response shall be kept in a separate file by the registered service for a period of one year after the date of the resolution of the complaint, or two years after the date of the complaint, whichever is later. 

    o.   If a demand for refund is denied by a registered service, and if the denial is found to have been in bad faith or if the registered service fails to respond to a demand for a refund, a court in an action instituted by the job seeker shall award damages to the job seeker in an amount not to exceed $200.00 in addition to actual damages sustained by the job seeker, together with reasonable attorneys' fees, filing fees, and reasonable costs of suit. If the registered service refuses or is unable to pay the amount awarded by the court, the award may be satisfied out of the registered service's bond. 

    p.   In addition to any act or practice in violation of P.L.1960, c.39 (C.56:8-1 et seq.), it shall be a violation of this act for any registrant or its agent to:

 

    (1)  Make, or cause to be made, publish or cause to be published, any false, misleading, or deceptive advertisement or representations concerning the services or products that the registrant provides to job seekers; or 

    (2)  Disseminate information to a job seeker knowing or recklessly disregarding information that:

 

    (a)  The job does not exist or the job seeker is not qualified for the job;

 

    (b)  The job has been described or advertised by or on behalf of the registered service in a false, misleading, or deceptive manner;

      (c)  The registrant has not confirmed the availability of the job at the time of dissemination of the information; or

      (d)  The registrant has not obtained written or oral permission to list the job from the employer or an authorized agent of the employer.

 

    q.   The director may refuse to issue, and may revoke, any registration for any failure to comply with, or any violation of, the provisions of this section or for any other good cause shown, within the meaning and purpose of this section.  A refusal shall not be made except upon reasonable notice to, and opportunity to be heard by, the applicant or registrant as the case may be.  The director instead of revoking any registration may suspend the registration for a period of time as determined to be proper, or assess a penalty in lieu of suspension, or both; and may issue a new registration notwithstanding the revocation of a prior registration provided that the applicant is found to have become entitled to the new registration. 

    r.   Any person who fails to comply with the provisions of this section or rules and regulations promulgated by the director shall be subject to the provisions of sections 14 through 22 of this act. 

    L.1989, c.331, s.25. 
 
34:8-67  Definitions relative to employee leasing companies.
1.For the purposes of this act:

"Client company" means a sole proprietorship, partnership, corporation or other business entity, which enters into an employee leasing agreement and is assigned employees by the employee leasing company.

"Commissioner" means the Commissioner of Labor.

"Covered employee" means an individual co-employed by an employee leasing company and a client company pursuant to an employee leasing agreement.

"Department" means the Department of Labor.

"Employee leasing agreement" or "professional employer agreement" means an arrangement, under written contract, whereby:

(1)An employee leasing company and a client company co-employ covered employees; and

(2)The arrangement is intended to be, or is, ongoing rather than temporary in nature, and not aimed at temporarily supplementing the client company's work force.

"Employee leasing company" or "professional employer organization" means a sole proprietorship, partnership, corporation or other business entity, which devotes a substantial portion of its business to providing the services of employees pursuant to one or more employee leasing agreements and provides services of a nature customarily understood to be employer responsibilities including, but not limited to, those responsibilities provided in section 2 of this act.

L.2001,c.260,s.1.

 
34:8-68  Provisions of leasing agreements.
 

2. a. Every employee leasing agreement shall provide that the employee leasing company:

(1)Reserves a right of direction and control over each covered employee assigned to the client company's location.  However, a client company may retain sufficient direction and control over the covered employee as is necessary to conduct the client company's business and without which the client company would be unable to conduct its business, discharge any fiduciary responsibility that it may have, or comply with any applicable licensure, regulatory or statutory requirement of the client company;

(2)Assumes responsibility for the payment of wages to each covered employee without regard to payments by the client company to the employee leasing company, except that the provisions of this paragraph shall not affect the client company's obligations with respect to the payment of wages to covered employees;

(3)Assumes responsibility for the payment of payroll taxes and collection of taxes from payroll on each covered employee;

(4)Retains authority to hire, terminate, discipline, and reassign each covered employee.  However, no covered employee shall be reassigned to another client company without that covered employee's consent and the client company may have the right to accept or cancel the assignment of any covered employee;

(5)Has given written notice of the relationship between the employee leasing company and the client company to each covered employee it assigns to perform services at the client company's work site;

(6)Shall, except for newly established business entities, hire its initial employee complement from among employees of the client company at the time of execution of the employee leasing agreement at comparable terms and conditions of employment as are in existence at the client company at the time of execution of the employee leasing agreement and as designated by the client company.  Throughout the term of the employee leasing agreement the covered employees shall be considered employees of the employee leasing company and the client company and upon the termination of the employee leasing agreement, the covered employees shall be considered employees of the client company;

(7)Continue to honor and abide by existing collective bargaining agreements applicable to covered employees.  Upon expiration of the employee leasing agreement, the client company shall continue to honor and abide by all collective bargaining agreements applicable to covered employees.  Every employee leasing company which enters into a contract with a client company, which has a collective bargaining representative for the covered employees, shall require that client company to enter into an agreement with the employee leasing company containing the following language:

"The client company shall continue to honor and abide by the terms of any applicable collective bargaining agreements, and upon expiration thereof, any obligations of the client company to bargain in good faith in connection with such collective bargaining agreements shall not be affected in any manner by the employee leasing agreement."

b.Every employee leasing agreement shall provide that the employee leasing company and the client company shall each retain a right of direction and control over management of safety, risk and hazard control at the work site or sites affecting each covered employee including:

(1)Responsibility for performing safety inspections of client company equipment and premises;

(2)Responsibility for the promulgation and administration of employment and safety policies; and

(3)Responsibility for the management of workers' compensation claims, the filings thereof, and procedures related thereto.

c.Nothing in this section or this act shall alter the rights or obligations of client companies, employee leasing companies or covered employees under the National Labor Relations Act, 29 U.S.C. s.151 et seq.

L.2001,c.260,s.2.

 
34:8-69  Relationship between leasing company, client company.
 

3.The employee leasing company and the client company shall not be owned or controlled by the same interests or be a part of a "controlled group of corporations" as that term is defined in section 1563 of the federal Internal Revenue Code of 1986, 26 U.S.C. s.1563

L.2001,c.260,s.3.

 
34:8-70  Registration of leasing company.
4. a. An employee leasing company shall register with the commissioner and provide a list of its client companies, both upon the initial registration of the employee leasing company, and thereafter, annually by January 31st, listing all client companies as of the immediately proceeding December 31st.  The list shall include the following information with regard to each client company:

(1)Client company's name;

(2)Client company's physical location address;

(3)Description of client company's economic activity;

(4)Client company's state tax identification number;

(5)Percent of client company's workforce being leased;

(6)Effective date and duration of employee leasing agreement;

(7)A copy of the standard form of agreement entered into between the employee leasing company and the client company;

(a)The standard form of agreement shall be accompanied by a certified list of all client companies contracting with the employee leasing company for its services.

(b)The employee leasing company shall be required to notify the Department of Labor on an annual basis of any changes in the standard form of agreement which relate to the requirements set forth in section 2 of this act, and when any particular client company has agreed to terms which deviate from the standard form of agreement;

(8)Proof of written disclosure to client companies upon the signing of an employee leasing agreement, as required in section 8 of this act;

(9)Proof of current workers' compensation coverage, which may be in the form of a letter from the insurance carrier, and which shall include the name of the carrier, date of commencement of coverage under the policy, term of the coverage, and verification of premiums paid; and

(10) Confirmation that all leased employees are covered by workers' compensation insurance.

b.Employee leasing companies shall also report to the department, on a quarterly basis, wage information regarding each covered employee as required by law, rule or regulation.

c.All records, reports and other information obtained from employee leasing companies under this act, except to the extent necessary for the proper administration by the department of this act and all applicable labor laws, shall be confidential and shall not be published or open to public inspection other than to public employees in the performance of their public duties.

L.2001,c.260,s.4.

 
34:8-71  Registration, annual reporting.
 

5. a. Every initial registration and subsequent annual reporting shall be accompanied by a reviewed financial statement prepared by an independent certified public accountant in accordance with generally accepted accounting principles within six months prior to the date of application or renewal, which statement shall show a minimum net worth of $100,000.

b. (1) As a substitute for the requirement set forth in subsection a. of this section, the commissioner, or his designee, may require that the employee leasing company deposit in a depository designated by the commissioner a bond or securities with a market value of $75,000.  The securities so deposited shall include authorizations to the commissioner, or his designee, to sell those securities in an amount sufficient to pay any taxes, wages, benefits or other entitlement due a covered employee, if the employee leasing company does not make those payments when due.

(2)The commissioner, or his designee, may also require that bond or deposit if the commissioner finds that the leasing company has had its license or registration suspended, denied, or limited in any other jurisdiction; or that there have been instances in which the employee leasing company has not paid covered employees' wages or benefits when due, or failed to make timely payment of any federal or state payroll taxes or unemployment compensation contributions when due, or for other good cause.

(3)Any bond or securities deposited under this subsection shall not be included for the purpose of the calculation of net worth required by subsection a. of this section.

c.An employee leasing company shall submit to the commissioner, or his designee, within 60 days after the end of each calendar quarter, a certification by an independent certified public accountant that all applicable federal and state payroll taxes have been paid on a timely basis for that quarter.  If the commissioner or his designee does not receive that certification within the 60-day period, the department shall notify the employee leasing company within five calendar days of the expiration of the 60-day period.  If that certification is not received within 10 calendar days following the notification by the department, the department shall notify the client companies listed on the employee leasing company's annual report required pursuant to section 4 of this act that the certification was not received.


L.2001,c.260,s.5.

 
34:8-72  Co-employment of covered employees.
 

6. a. An employee leasing company registered under this act and the respective client companies with which it has entered into employee leasing agreements shall be the co-employers of their covered employees for the payment of wages and other employment benefits due, including the obligation under the workers' compensation law, R.S.34:15-1 et seq., to maintain insurance coverage for personal injuries to, or for the death of, those employees by accident arising out of and in the course of employment.

b.For purposes of this act, the agreement between the employee leasing company and the client company shall be one of co-employment, whereby the employee leasing company, having accepted the responsibilities set forth in section 2 of this act, may submit reports to the department and make contributions to the Unemployment Compensation and State Disability Benefits Funds in the manner prescribed in section 7 of the this act, on behalf of those covered employees covered by the employee leasing agreement.  In addition, the provisions of R.S.34:15-8, regarding the exclusivity of the remedy under the workers' compensation law for personal injuries to, or for the death of, employees by accident arising out of and in the course of their employment, shall apply to the employee leasing company and the client company, and their employees.

c.The employee leasing company shall file reports prescribed under the "unemployment compensation law," R.S.43:21-1 et seq. on behalf of its covered employees using the State tax identification number of the employee leasing company.

L.2001,c.260,s.6.

 
34:8-73  Actions upon entry, dissolution of leasing agreement.
7. a. Upon entering into the employee leasing agreement:

(1)If the employee leasing company acquires the client company's total workforce, the employee leasing company shall report wages and pay contributions pursuant to the "unemployment compensation law," R.S.43:21-1 et seq., based on the benefit experience assigned to the employee leasing company under R.S.43:21-7.  The benefit experience of the client company shall not be transferred to the leasing company and shall not be used in the calculation of the employee leasing company's future contribution rates.

(2)If the employee leasing company acquires less than all of the client company's total workforce, the employee leasing company shall report wages and pay contributions pursuant to the "unemployment compensation law," R.S.43:21-1 et seq. for that portion of the workforce acquired based on the benefit experience assigned to the employee leasing company under R.S.43:21-7.  The benefit experience associated with that portion of the client company's workforce acquired by the employee leasing company shall not be transferred to the employee leasing company and shall not be used in the calculation of the employee leasing company's future contribution rates.  The client company shall continue to report wages and pay contributions for the workforce not acquired by the employee leasing company using the client company's contribution rate.

b.Upon dissolution of the employee leasing agreement:

(1)If, under the dissolved employee leasing agreement, the client company had leased its total workforce, and if, at the time of dissolution, the client company had leased those employees for at least two full calendar years, the client company shall be assigned the rate of a new employer under R.S.43:21-7 until it is eligible for a rate based on benefit experience pursuant to that section or enters into another employee leasing agreement.

(2)If, under the dissolved employee leasing agreement, the client company had leased its total workforce, and if, at the time of the dissolution, the client company had leased those employees for less than two full calendar years, the employee leasing company at the time of dissolution shall provide the Department of Labor with the data necessary to calculate the benefit experience of the client company for the duration of the employee leasing agreement.  That benefit experience shall then be added to the client company's benefit experience which was established prior to entering the employee leasing agreement.  Both the client company and the employee leasing company shall continue to use the rate of the employee leasing company for the period from the date of the dissolution of the employee leasing agreement until the following July 1.

(3)If, under the dissolved employee leasing agreement, the client company had leased less than its total workforce from the employee leasing company, and if, at the time of dissolution, the client company had leased those covered employees for at least two full calendar years, the benefit experience associated with that portion of the client company's workforce which had been leased from the employee leasing company shall not be transferred to the client company and shall not be used in the calculation of the client company's future contribution rates.

(4)If, under the dissolved employee leasing agreement, the client company had leased less than its total workforce from the employee leasing company, and if, at the time of dissolution, the client company had leased those covered employees for less than two full calendar years, the leasing company shall provide the department with the data necessary to calculate the benefit experience associated with that portion of the client's workforce which had been leased from the employee leasing company.  The department shall combine that benefit experience with the client company's existing benefit experience.  Both the client company and the employee leasing company shall continue to use their own rates for the period from the date of the dissolution until the following July 1.

(5)If, immediately upon dissolution of the employee leasing agreement, the client company enters into a subsequent employee leasing agreement regarding those covered employees with another employee leasing company, the payroll relative to the client company shall be reported and paid at the rate assigned the second employee leasing company.

L.2001,c.260,s.7.

 
34:8-74  Calculation of unemployment benefit experience.
 

8.The employee leasing company shall provide to each client company, upon signing of an employee leasing agreement, written disclosure as to the method to be utilized for calculation of unemployment benefit experience contribution rates and temporary disability contribution rates upon both the inception and dissolution of the employee leasing relationship.

L.2001,c.260,s.8.