NEW JERSEY REGISTER
VOLUME 40, ISSUE 1
ISSUE DATE: JANUARY 7, 2008
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
REGULATED BUSINESS SECTION
Proposed New Rules: N.J.A.C. 13:45B-12.1, 12.2, 12.3 and 12.4
Proposed Recodifications with Amendments: N.J.A.C. 13:45B-14 and 15 as 13 and 14
Proposed Recodification: N.J.A.C. 13:45B-12 and 13 as 15 and 16
Proposed Amendments: N.J.A.C.13:45B-4.6 and 8.1
Registration Requirements for Temporary Help Service Firms; Transportation of Employed Individuals by Temporary Help Service Firms
Authorized By: Lawrence DeMarzo, Acting Director, Division of Consumer Affairs, in Consultation with the New Jersey Motor Vehicle Commission.
Authority: N.J.S.A. 56:8-1.1, 52:17B-122 and 52:17B-124, N.J.S.A. 34:8-43 and 34:8-44
Calendar Reference: See Summary below for explanation of exemption to calendar requirement.
Proposal Number: PRN 2008-14.
Submit written comments by March 7, 2008 to:
Lawrence DeMarzo, Acting Director
Office of the Director
New Jersey Division of Consumer Affairs
124 Halsey Street
P.O. Box 45027
Newark, NJ 07101
The agency proposal follows:
Pursuant to amendments to N.J.S.A. 56:8-1.1, the Director of the Division of Consumer Affairs (the Director) is proposing new rules at N.J.A.C. 13:45B-12. The Director proposes to recodify existing Subchapter 12 as Subchapter 15. The proposed new rules are intended to establish registration requirements for temporary help service firms and recordkeeping requirements for those temporary help service firms that provide transportation to employees to get to or return from the work site. In addition, existing Subchapter 13 has been recodified as Subchapter 16, existing Subchapter 14 has been recodified as Subchapter 13 and existing Subchapter 15 has been recodified as Subchapter 14. These subchapters have been recodified in order to group together rules that relate to similar topics. In addition, the Division proposes technical amendments to N.J.A.C. 13:45B-4.6 and 8.1 to reflect the subchapter recodifications mentioned above. N.J.A.C. 13:45B-8.1 is further amended to reference N.J.S.A. 56:8-1.1, the statutory authority for Subchapter 12. A summary of the proposed new rules follows.
Proposed N.J.A.C. 13:45B-12.1 sets forth the purpose and scope of the subchapter. Proposed N.J.A.C. 13:45B-12.2 sets forth the registration process. Subsection (a) sets forth the requirement that a temporary help service firm register annually, while subsection (b) notifies applicants that they may obtain an application and abstract of the law covering the statutory requirements from the Regulated Business section. All temporary help service firms are required to register annually by submitting the items listed in proposed subsection (c). That subsection requires the submission of a bond; but, if the temporary help service firm submits a certified financial report showing a net worth of greater than $ 100,000, the bond may be waived, as indicated in subsection (d). The statutory scheme under which these registration requirements have been promulgated, N.J.S.A. 56:8-1.1, requires the posting of a $ 1,000 bond. Other "firms" found in Chapter 45B, for instance, health care service firms, have a $ 10,000 bond requirement under the statutory scheme that governs those firms, N.J.S.A. 34:8-43 et seq. Proposed subsection (e) and (f) make issuance of a registration to a temporary help service firm subject to the New Jersey Child Support Program Improvement Act, N.J.S.A. 2A:17-56.41 et seq. and 34:8-44, respectively. Proposed subsection (g) requires registrants to notify the Regulated Business Section of the Office of Consumer Protection of any changes in the application information within 30 days. Proposed subsection (h) requires notification when the temporary help service firm decides to use a secondary location for its services.
Proposed N.J.A.C. 13:45B-12.3 sets forth the duties of those temporary help service firms that are providing transportation to employees to get to or return from the work site. Proposed subsections (a) and (b) set forth the recordkeeping requirements when the temporary help service firm transports employees in its own vehicles or transports employees in vehicles owned or provided by another. Proposed subsection (c) identifies circumstances under which proposed subsections (a) and (b) do not apply and proposed subsection (d) sets forth the statutory mandate that a temporary help service firm cannot require an employee to use transportation provided by it if the employee has other means of transportation, including public transportation. The language of N.J.S.A. 56:8-1.1 stating that the provisions of subsection d thereof shall not apply where public transportation is available to the employee "and the firm permits [the employee] to use the public transportation," is ambiguous when read together with the language that provides, "[t]he firm may not require the individuals to use transportation provided by the firm or another provider of transportation services if they have other transportation available." The Division has proposed these regulations to include public transportation within the scope of "other transportation" in N.J.A.C. 13:45B-12.3(d) since it believes that the appropriate interpretation of N.J.S.A. 56:8-1.1 requires that the statutory directive using the term "other transportation" intends the inclusion of public transportation. The Division has made this determination based on both the legislative history and public policy. There is no indication in the legislative history that the Legislature intended to allow temporary help service firms to prohibit the use of public transportation by temporary workers or that public transportation should be treated differently than "other transportation," as the term is used in the statute. Further, the purpose behind these statutory amendments, as well public policy favors allowing temporary workers to take advantage of public transportation, since public transportation may be the only safe transportation available to these workers.
Finally, with respect to the remainder of N.J.A.C. 13:45B-12.3, proposed subsection (e) requires that temporary help service firms maintain certain records concerning the transportation of employees. Subsection (f) requires a written statement from the employee that the transportation the employee is taking is the only means available to get to or from the work site. Subsections (g) and (h) set forth, respectively, a time period for keeping the records listed under proposed N.J.A.C. 13:45B-12.3 and the Division's ability to audit those records.
Proposed N.J.A.C. 13:45B-12.4 sets forth the violations section of the subchapter. Subsection (a) makes failure to comply with the provisions of the subchapter a violation of the Consumer Fraud Act, while subsection (b) makes the failure to comply a violation of N.J.S.A. 48:4-3 et seq. Subsection (c) sets forth the penalty for failure to comply with N.J.A.C. 13:45B-12.3 on more than one occasion. Subsection (d) states that the provisions of N.J.A.C. 13:45B-16.1 will apply where false information has been provided in an initial registration or renewal application. Subsection (e) states that any violation of any statute or regulation of another State agency will be reported to that State agency. Subsection (f) states that no penalty will be assessed for a violation on N.J.A.C. 13:45B-12.3 before January 24, 2008.
The Division has determined that the comment period for this proposal is 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this proposal is excepted from the rulemaking calendar requirement.
N.J.S.A. 56:8-1.1, the statute upon which these new rules are based, has been amended in light of the Legislature's determination that, in some cases, the safety and security of commuter vehicle services, which are used by a number of temporary help service firms to get employees to and from work, is being compromised. Police reports have shown that a large percentage of commuter vehicles pulled over during spot checks were either in violation of New Jersey's motor vehicle registration requirements or simply were not safe to drive. The Legislature deemed it necessary to enact legislation to address this issue in order to protect the employees who use these transportation services. In that legislation, the Division has been charged with drafting rules that require all temporary help service firms providing transportation to their employees to keep the appropriate records for the types of vehicles they operate or use for transportation purposes. In response to the legislative mandate, the Division has proposed these new rules that will affect all employees of temporary help services firms who use transportation provided to them by the firm to get to or return from the work site. The proposed new rules will have a positive impact on employees since the Division believes the recordkeeping requirements and the possible imposition of penalties for firms that fail to comply with the rules will increase overall safety in the transportation of employees to or from the work site.
In addition, the firms that supply transportation to their employees to get to or from the worksite will be impacted by the recordkeeping requirements. Although these firms initially may be required to retain an increased number of documents, especially for vehicles not under their control, the Division anticipates that the new recordkeeping requirements will help ensure the safety of the vehicles provided for the transportation of employees of temporary help service firms.
The proposed new rule at N.J.A.C. 13:45B-12.2 will have an economic impact on temporary help service firms when registering with the Division. Proposed N.J.A.C. 13:45B-12.3 will economically impact temporary help service firms that provide transportation to their employees. Registrants will be required to pay an annual registration fee as set forth in N.J.A.C. 13:45B-7.1 and post a $ 1,000 bond, if the firms have a net worth of less than $ 100,000. For those businesses that supply transportation, there may be costs associated with maintaining the appropriate records proposed under the new rules. Generally, the public should not be impacted; however, those businesses to which temporary help services firms supply workers may be affected if the costs of recordkeeping are passed on to them.
Although some costs exist, the Division anticipates that the safety of employees traveling in vehicles provided by the temporary help service firms may increase as a result of proper safety measures being taken and, therefore, the economic impact of the proposed rules is outweighed by the benefits to the employees.
Federal Standards Statement
A Federal standards analysis is not required because the proposed new rules and proposed rule amendments are subject to State statutory requirements and are not subject to any Federal requirements.
The Director does not believe that the proposed new rules and proposed rule amendments will impact jobs in the State.
Agriculture Industry Impact
The Director anticipates that the proposed new rules and amendments will not impact the agriculture industry in the State.
Regulatory Flexibility Analysis
The Director believes that a majority of the approximately 300 temporary help service firms regulated under the proposed new rules are small businesses as defined in the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. These firms will be subject to reporting, recordkeeping or other compliance requirements. Proposed new rule N.J.A.C. 13:45B-12.2 requires all temporary help service firms to register annually by fulfilling the requirements listed in subsection (c) of that section. If the temporary help service firm seeks a waiver of the bond required under paragraph (c)3, then it must submit a certified financial report as set forth in subsection (d) of that section. Under subsection (e), registrants must make the Regulated Business Section of the Office of Consumer Protection aware of any changes in the application information and subsection (f) sets forth the notification requirements when a temporary help service firm decides to use a secondary location.
Proposed new rule N.J.A.C. 13:45B-12.3 includes a number of recordkeeping and compliance requirements. Temporary help service firms that provide transportation to its employees under subsections (a) or (b) are required to maintain and make available for inspection the records applicable to the types of vehicles used for the transportation of employees to or from the work site. Proposed subsection (e) requires the temporary help service firm to maintain a daily manifest on the information set forth in the rules and proposed subsection (f) requires that the firm seek certain information from its employees and retain copies of that information in its files.
The Division does not anticipate that there will be any professional services needed to comply with these requirements. Further, the Division believes that the initial and annual costs to temporary help service firms, other than the annual registration fee, will be minimal. The costs of compliance to those small businesses primarily will be in copying and printing costs and possibly in establishing the initial record-making system. All registered temporary help service firms are similarly impacted by the registration requirements of proposed N.J.A.C. 13:45B-12.2. Under proposed N.J.A.C. 13:45B-12.3, only those temporary help service firms that use the types of transportation described in subsections (a) and (b) will be impacted; however, all will be impacted in the same manner. The proposed new rules and amendments do not contain lesser standards because those established in the rules are the minimum standards necessary to ensure safety.
Smart Growth Impact
The Director does not believe that the proposed new rules and proposed rule amendments will have any impact upon the achievement of smart growth or upon the implementation of the State Development and Redevelopment Plan.
Full text of the proposed new rules, recodifications and proposed amendments follows (additions indicated in boldface thus; deletions indicted in brackets [thus]):
13:45B-4.6 Temporary placement operation (functioning in conjunction with an employment agency and integrated)
(a) (No change.)
(b) If a licensed employment agency provides temporary placement services as described in (a) above, the temporary placement operation function shall be subject to the requirements of N.J.S.A. 34:8-43 et seq. and N.J.A.C. 13:45B-1 through 4 and 7, 8,  15 and  16, as well as this section.
(c) (No change.)
SUBCHAPTER 8. OUT-OF-STATE BUSINESSES
All provisions of N.J.A.C. 13:45B-1 through [N.J.A.C. 13:45B-13] 16 shall apply to any person engaging in any of the activities regulated by N.J.S.A. 34:8-43 et seq. or 56:8-1.1 in New Jersey, including persons whose residence or principal place of business is located outside of this State.
(Agency Note: N.J.A.C. 13:45B-12 and 13 are proposed for recodification as N.J.A.C. 13:45B-15 and 16.)
SUBCHAPTER 12. TEMPORARY HELP SERVICE FIRMS
13:45B-12.1 Purpose and scope
(a) The rules of this subchapter are being promulgated pursuant to N.J.S.A. 56:8-1.1, in order to set forth the registration requirements for temporary help service firms and to set forth the recordkeeping requirements for temporary help service firms that transport, or provide transportation for, employees to or from the work site. The rules are intended to improve the safety of vehicles used by temporary help service firms to transport employees to or from the work site.
(b) This subchapter shall apply to any temporary help service firm regulated under N.J.S.A. 56:8-1.1 or 34:8-43 et seq., and as defined in N.J.A.C. 13:45B-1.2.
13:45B-12.2 Registration process
(a) All temporary help service firms, as defined in N.J.A.C. 13:45B-1.2, shall register annually with the Section in order to operate as a temporary help service firm in New Jersey.
(b) An application for registration and an abstract of the law covering the statutory requirements for the operation of registered services in New Jersey shall be supplied by the Section upon request.
(c) To register as a temporary help service firm, an applicant shall submit annually:
1. A completed application form provided by the Division under (b) above containing the information required by N.J.S.A. 56:8-1.1 and such other information as the Division may require;
2. The registration fee, as set forth in N.J.A.C. 13:45B-7.1; and
3. A $ 1,000 bond, unless the bond has been waived by the Director for those entities having a net worth of $ 100,000 or more.
(d) In order to obtain the bond waiver as set forth in (c)3 above, the temporary help service firm shall provide a copy of a certified financial report prepared by a certified public accountant or public accountant establishing that the temporary help service firm has a net worth of $ 100,000 or greater.
(e) The issuance of a registration shall be subject to the requirements of the New Jersey Child Support Program Improvement Act, N.J.S.A. 2A:17-56.41 et seq.
(f) The issuance of a registration shall be subject to compliance with the provisions of N.J.S.A. 34:8-44.
(g) Registrants shall be under a continuing obligation to inform the Section of any change in or addition to the application information, within 30 days of that change or addition.
(h) If the temporary help service firm uses any location other than its primary location for recruiting applicants, including any mobile locations not disclosed in its application, it shall notify the Section in writing before using that secondary location.
13:45B-12.3 Temporary help service firms' duties when providing transportation to employed individuals
(a) Every temporary help service firm that provides, to individuals it employs, transportation services in any vehicle owned, leased or otherwise under the control of the firm, in order for those individuals to get to or return from the work site, shall comply with the provisions of N.J.S.A. 48:4-3 et seq., if applicable, and any other statutes or regulations applicable to the vehicle or its use or operation, including those statutes or regulations pertaining to the vehicle operator's license, any insurance and maintenance requirements and the capacity restrictions placed on the vehicle. Every temporary help service firm shall keep on file all documentation necessary to demonstrate compliance with any applicable statute or regulation and a copy of the New Jersey motor vehicle registration, the lease agreement, if applicable, and any other documents evidencing control that contain the make, model and vehicle identification number of the vehicle.
(b) Every temporary help service firm that refers or directs the individuals it employs to use the transportation services of any other provider or providers, or provides no practical alternative to the use of those services, shall obtain and keep on file all necessary documentation to show that each provider of transportation used by the temporary help service firm is in compliance with the requirements of N.J.S.A. 48:4-3 et seq., if applicable, and any other statutes or regulations applicable to the vehicle or its use or operation, including those statutes or regulations pertaining to the vehicle operator's license, any insurance and maintenance requirements and the capacity restrictions placed on the vehicle. In addition, the temporary help service firm shall retain and keep on file any written contract or other agreement between the temporary help service firm and any provider of transportation pertaining to the transportation of employees.
(c) The requirements in (a) and (b) above shall not apply where there is public transportation available at the times needed to and from the work site or where the firm requires its employees to use their own vehicle or other transportation of their choice for transportation to and from the work site.
(d) A temporary help service firm shall not require an individual it employs to use transportation it provides or transportation provided by another, if the employed individual has other transportation available, including public transportation, to get to or from the work site.
(e) Any temporary help service firm, to which (a) or (b) above applies, shall maintain for each vehicle a daily manifest of the employed individuals being transported to or returning from the work site and the vehicle operators' names and license numbers.
(f) Every temporary help service firm, to which (a) or (b) applies, shall provide to the employed individual a written statement in duplicate, in his or her native language, if the temporary help service firm advertises for employment in that language, to be signed by the employed individual, that indicates that he or she is taking the transportation provided by the temporary help services firm because it is the only means by which the employed individual can get to or return from the work site. A signed copy of the statement shall be retained by the employer.
(g) Every temporary help service firm that provides transportation as set forth in (a) or (b) above shall maintain and make available for inspection by the Division for a period of not less than five years all documentation required by (a), (b), (e) and (f) above.
(h) The Division may randomly audit the records maintained under (g) above.
(a) A failure to comply with this subchapter shall be considered an unlawful practice and a violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq.
(b) In addition to (a) above, a failure to comply with N.J.A.C. 13:45B-12.3 shall be considered a violation of N.J.S.A. 48:4-3 et seq. Any temporary help services firm to which N.J.A.C. 13:45B-12.3 applies that is found to be in violation of N.J.S.A. 56:8-1 et seq. or 48:4-3 et seq. will be subject to the penalties under those acts and shall be jointly and severally liable with the provider of transportation services for any injury that occurs to individuals while being transported in a vehicle owned, leased or otherwise under the control of the provider.
(c) A temporary help service firm that has failed to comply with the provisions of N.J.A.C. 13:45B-12.3 on more than one occasion may have its registration suspended or revoked by the Director.
(d) A temporary help service firm that has provided false information to the Section on its initial registration application or its registration renewal application, with regard to the types of transportation provided by the temporary help service firm, if any, shall be subject to the provisions of N.J.A.C. 13:45B-16.1.
(e) A violation of a statute or regulation of any other State agency under (a), (b) or (c) above shall be reported by the Section to the State agency having jurisdiction.
(f) No penalty shall be assessed for any violation of the recordkeeping requirements of N.J.A.C. 13:45B-12.3 before January 24, 2008.
SUBCHAPTER [14.] 13. HEALTH CARE SERVICE FIRMs
13:45B-[14.1]13.1 Authority, purpose and scope
(a)-(b) (No change.)
(c) This subchapter applies to all persons operating a health care service firm, as defined by N.J.A.C. 13:45B-[14.2]13.2, including persons whose residence or principal place of business is located outside of this State.
13:45B-[14.2]13.2 (No change in text.)
13:45B-[14.3]13.3 Initial registration requirements
(a) Except as set forth in N.J.A.C. 13:45B-[14.4]13.4, each health care service firm shall register with the Division by submitting the following, on forms provided by the Director:
1.-4. (No change.)
(b)-(d) (No change.)
13:45B-[14.4]13.4 Firms registered prior to April 3, 1995 and meeting the definition of health care service firm
(a) A firm registered prior to April 3, 1995 and meeting the definition of a health care service firm shall not be required to comply with the initial registration requirements of N.J.A.C. 13:45B-[14.3(a)1]13.3(a)1 and 2. Such entity shall, however, comply with the provisions of N.J.A.C. 13:45B-[14.3(a) 3]13.3(a)3 by ensuring that it has filed a $ 10,000 bond with the Director, unless the Director has waived the bond requirement for the reasons set forth therein.
(b) (No change.)
13:45B-[14.5]13.5 Registration renewal
(a) A health care service firm shall renew registration on or prior to July 1 of each year by submitting the following, on forms provided by the Director.
1. A renewal application, which shall provide the information set forth in N.J.A.C. 13:45B-[14.3(a)1]13.3(a)1; a certification that no new officers, directors, principals or owners have been added since the previous renewal; a list of primary locations; an updated description of any action taken by another state upon a license held by the health care service firm or by any officer, director, owner or principal of the health care service firm; and an updated description of any violations of Federal or New Jersey State law by the health care service firm or any officer, director, owner or principal of the health care service firm.
2. A $ 10,000 bond, unless the health care service firm has a perpetual bond or the Director has waived the bond requirement for the reasons set forth in N.J.A.C. 13:45B-[14.3(a)3]13.3(a)3.
13:45B-[14.6]13.6 (No change in text.)
SUBCHAPTER [15.] 14. PLACEMENT OF HEALTH CARE PRACTITIONERS
As used in this subchapter, the following terms shall have the following meanings unless the context clearly indicates otherwise:
"Agency" means a health care service firm as defined in N.J.A.C. 13:45B-[14.2]13.2 or an employment agency licensed pursuant to N.J.S.A. 34:8-47 and 48 and operating as a nurses' registry. Agency also means any holder of an employment agency license who places or employs a health care practitioner.
"Health care practitioner" means an individual placed or employed by an agency for the purpose of rendering health care services, as defined in N.J.A.C. 13:45B-[14.2]13.2, to an individual. Health care practitioner shall include, but not be limited to, an acupuncturist, athletic trainer, chiropractor, dentist, marriage counsellor, optometrist, orthotist, prosthetist, pharmacist, physician assistant, physician or surgeon, physical, occupational or speech therapist, podiatrist, psychologist, registered nurse, licensed practical nurse, nurse practitioner, a home health aide, [or] a nurse's aide, respiratory therapist or social worker. The term shall also include an individual placed by an agency for the purpose of rendering health care services where a license under State law is not required.
. . .
Recodify existing N.J.A.C. 13:45B-15.2 through 15.9 as 13:45B-14.2 through 14.9 (No change in text.)
Recodify existing N.J.A.C. 13:45B-12 and 13 as 13:45B-15 and 16 (No change in text.)