The New Jersey Department of Labor and Workforce Development (“NJDOL”) has placed new burdens on employers. A newly issued notice entitled, “Employer Obligation to Maintain and Report Records,” requires employers to (1) post this notice immediately in the workplace; (2) provide each employee hired prior to November 7, 2011, a written copy of the notice no later than December 7, 2011; and (3) provide employees hired after November 7, 2011, a written copy of the notice at the time of hire. A copy of the Notice is available here.
Contents of the Notice
The Notice provides employees general information on what records must be maintained by employers under the wage and hour laws, prevailing wage act, unemployment law, temporary disability benefits law, family leave insurance benefits law, workers compensation law, and gross income tax law. It also includes information on how an employee may contact the various departments within NJDOL to provide or obtain information, and how to file a complaint.
If an employer maintains an internet or intranet site for the exclusive use of its employees and all employees have access to it, the employer may satisfy the posting requirement by including the Notice on the site. Employers also may e-mail the Notice to employees.
Notice Law
The Notice is issued pursuant to state law, N.J.S.A. 34:1A-1.11 et seq., which went into effect on July 13, 2010, and requires covered employers to post conspicuously and distribute to all employees a notification of the employer’s obligation to maintain and report records regarding wages, benefits, taxes and other contributions and assessments pursuant to the state wage, benefit and tax laws (i.e., New Jersey State wage and hour laws, Prevailing Wage Act, workers’ compensation law, Temporary Disability Benefits law, unemployment compensation law and Gross Income Tax Act).
The law also provides that if an employer fails to maintain and report the required records and, in connection with that failure, the employer also fails to pay required wages, benefits, taxes or other contributions or assessments, the NJDOL may conduct an audit of the employer no later than 12 months after the determination. If the initial audit uncovers a continued failure to pay wages, benefits, taxes or other contributions or assessments, the NJDOL: (1) may issue a written determination and suspend any one or more licenses held by the employer for a period determined by the commissioner; and (2) must conduct a subsequent audit or inspection of the employer within 12 months after the written determination.
If the NJDOL’s second audit establishes the employer still has failed to pay wages, benefits, taxes or other contributions or assessments as required by law, the NJDOL must issue a written determination directing any appropriate agency to permanently revoke any one or more licenses held by the employer.
An employer may not discharge or discriminate against an employee because the employee made an inquiry or complaint to the employer or to the NJDOL regarding a violation of N.J.S.A. 34:1A-1.11 et seq. or any other state wage, benefit and tax laws or because the employee made a claim or is about to make a claim or testified in a proceeding under the law.
For a violation of N.J.S.A. 34:1A-1.11 et seq. or the notice requirement, an employer is guilty of a “disorderly persons” offense. Upon conviction, the employer will be fined at least $100, but no more than $1,000.
In addition, if an employee is discharged or otherwise discriminated against by the employer, the employer must offer reinstatement to the employee or correct any discriminatory action and must pay all reasonable legal costs, all wages and benefits lost as a result of the discharge or discriminatory action, plus punitive damages equal to two times the lost wages and benefits.
Practical Guidance
Providing employees a written copy of an official notice is not new to New Jersey employers. They already must provide a copy of a written notice under the Conscientious Employee Protection Act (on an annual basis) and the Family Leave Insurance Benefits Act (upon hire). Therefore, one more notice should not be a significant burden.
Worthy of extra attention, though, is how enthusiastically the NJDOL will conduct follow-up audits on employers and what remedies it will seek in each circumstance. If the NJDOL intends to seek suspension or revocation of one or more of an employer’s licenses to conduct business in the State, this can have a significant adverse impact on an employer’s operations. Therefore, employers should ensure they are in compliance with state law. Jackson Lewis attorneys are available to assist clients to ensure they are maintaining the necessary records and complying with the posting requirements.
