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RULE PROPOSALS
VOLUME 44, ISSUE 8
ISSUE DATE: APRIL 16, 2012
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS


Proposed New Rules: N.J.A.C. 13:45A-34

International Labor Matching Organizations and International Matchmaking Organizations
 
Authorized By: Thomas R. Calcagni, Director, Division of Consumer Affairs.
 
Authority: P.L. 2009, c. 152 (N.J.S.A. 56:8-185 through 56:8-194).
 
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
 
Proposal Number: PRN 2012-063.
 
Submit comments by June 15, 2012 to:
   Thomas R. Calcagni, Director
   New Jersey Division of Consumer Affairs
   124 Halsey Street
   P.O. Box 45027
   Newark, New Jersey 07101
 
The agency proposal follows:
 
Summary
The Division of Consumer Affairs (the Division) is proposing new rules that will require certain international labor matching and international matchmaking organizations that provide services to New Jersey residents to register with the Division, in order to implement P.L. 2009, c. 152, codified as N.J.S.A. 56:8-185 through 56:8-194 (the Act).
The law requires the Division to certify, based on a criminal history record background check, that persons who own or are employed by certain international labor matching and international matchmaking organizations are eligible to offer services to New Jersey consumers. In order to ensure that the certification process mandated under the Act is as streamlined as possible for the individuals who own and are employed by affected international labor matching and matchmaking organizations, and to help promote administrative efficiencies, the proposed new rules require these organizations to register with the Division, as authorized by N.J.S.A. 56:8-192, and to obtain certifications of eligibility on behalf of their owners and employees.
The proposed new rules do not require all international labor matching or international matchmaking organizations providing services to New Jersey residents to register with the Division. Pursuant to the statutory definition of the terms "international labor matching organization" and "international matchmaking organization" set forth in N.J.S.A. 56:8-185, the requirements of P.L. 2009, c. 152 apply only to those international labor matching organizations "whose primary purpose" is to offer to New Jersey residents opportunities to locate labor assistance from foreign recruits residing outside of the United States, and only to those international matchmaking organizations "whose primary purpose is offering, including to State residents" dating, matrimonial, or social referral services involving citizens of foreign countries. It is clear from the definitions that the Legislature did not intend to place all international labor matching organizations or international matchmaking organizations that provide services to New Jersey residents within the regulatory ambit of the new law. The Division believes that the variation in wording in the definitions concerning the organizations' primary purposes indicates the Legislature's intent to create different threshold requirements for registration for international labor matching organizations and international matchmaking organizations. The Division also notes that the respective statutory definitions of "international labor matching organization" and "international matchmaking organization" refer to an organization that "does business in the United States" without elaborating on what this phrase is intended to mean. Therefore, to eliminate uncertainty about which organizations are subject to regulation, and to give clear guidance to affected international labor matching and matchmaking organizations, and for administration of the registration scheme, the Division has interpreted these statutory definitions in proposed new N.J.A.C. 13:45A-34.2.
Specifically, proposed new rule N.J.A.C. 13:45A-34.2 defines the phrase "doing business in the Unites States" to mean that an organization has a physical business office in the United States. Consistent with this definition, an organization that does not have a physical business office in the United States is not required to register with the Division under the proposed new rules. With respect to the definition of "international labor matching organization," the phrase "whose primary purpose is to offer to State residents" is defined in N.J.A.C. 13:45A-34.2 to mean that for the previous fiscal year, more than 50 percent of the organization's business consisted of clients seeking labor assistance who resided in New Jersey and that more than 50 percent of the organization's business consisted of placements for labor assistance sought by the New Jersey clients that were for foreign recruits. With respect to the definition of "international matchmaking organization," the phrase "whose primary purpose is offering, including to New Jersey residents" is defined to mean that for the previous fiscal year, more than 50 percent of the organization's business consisted of placements for dating, matrimonial, or social referral services involving foreign recruits and that more than 10 percent of such placements were for New Jersey clients. Proposed new N.J.A.C. 13:45A-34.2 also includes definitions for other relevant terms used throughout the subchapter.
Proposed new rule N.J.A.C. 13:45A-34.3 requires an international labor matching organization or an international matchmaking organization that meets the threshold requirements outlined in the definitions of N.J.A.C. 13:45A-34.2 on the effective date of the new rules to apply to the Division for registration within 90 days. To help ensure as little interruption as possible in an organization's business operations, the new rule provides that the organization may continue to offer services to New Jersey residents for 90 days from the date of application. An organization that fails to complete the registration process within this 90 day period may request an extension from the Division. The proposed new rule also requires an international labor matching or matchmaking organization that is not required to register on the effective date of the rules, but that subsequently meets the threshold requirements for registration, to register within 90 days of the close of its fiscal year in which the registration threshold was met. An organization in this category will likewise be permitted to continue offering its services to New Jersey residents for 90 days from the date of application, and may apply to the Division for extension of this period. Proposed new rule N.J.A.C. 13:45A-34.3 also permits an international labor matching or matchmaking organization that does not meet the threshold registration requirements and, therefore, is not required to register, to voluntarily register with the Division. An organization that chooses to voluntarily register must comply with all requirements imposed under the new rules. The Division will maintain a list of all international labor matching organizations and international matchmaking organizations that are registered and will make this list available to the public on the Division's website.
Under proposed N.J.A.C. 13:45A-34.3, to register, an organization must submit a registration application to the Division, which includes relevant information about the organization's owners, prospective owners, and employees, all of whom must be named in the application. The application must include written consent for the initiation of a criminal history record background check from each individual named in the application, and the Federal Bureau of Investigations and New Jersey State Police fees for conducting the background check. The organization must also submit a one-time registration fee to the Division of $ 100.00 to offset the costs associated with processing the application and issuing the registration and owner and employee certifications of eligibility. No renewal of the registration will be required. Proposed new N.J.A.C. 13:45A-34.3 also requires an organization to file a supplemental registration application with the Division immediately upon hiring a new employee or obtaining a new owner.
Under proposed new N.J.A.C. 13:45A-34.4, an individual whose criminal history record background check reveals a conviction for any of the crimes and offenses set forth in the rule, consistent with the provisions of P.L. 2009, c. 152, N.J.S.A. 56:8-186d., will be disqualified from owning or being employed by an international labor matching organization or an international matchmaking organization. An individual who is notified that he or she cannot be certified because of a disqualifying criminal conviction may, within 30 days of this notification, petition the Division for review of its determination. If no review is [page=1186] requested, or if a review is requested but the Division determines following its review that the individual does not qualify for a certificate of eligibility, the organization must submit a certification to the Division, within 30 days of being notified of the Division's determination, attesting that the individual is no longer associated with the organization.
For the protection of the recruits from foreign countries who may be placed in contact with New Jersey residents through the services of an international labor matching or international matchmaking organization, proposed new N.J.A.C. 13:45A-34.5 requires a registered organization to advise the recruit in writing, in the recruit's native language, that he or she has the right to ask for criminal history record information about the organization's clients. If a recruit makes such a request, the organization must refrain from providing any further services to the recruit or to the client with regard to facilitating future interaction between the two until the client submits to the organization for transmittal to the recruit a complete transcript of his or her criminal history record obtained from the State Bureau of Identification in the Division of State Police. In addition, the organization must provide all recruits with the telephone numbers for the Statewide Domestic Violence Hotline and the National Domestic Violence Hotline, and other relevant information about domestic violence.
Proposed new N.J.A.C. 13:45A-34.6 requires a registered organization to retain copies of its registration and the certifications of eligibility of each owner, prospective owner, and employee of the organization. The new rule also requires a registered organization to make these certifications available to the public upon request. The new rule also requires a registered organization to maintain its business records for a minimum of three fiscal years. These records must be made available to the Division upon request.
Proposed new N.J.A.C. 13:45A-34.7 provides that any violations of the new rules will be deemed a violation of the Consumer Fraud Act and may subject an organization or individual to the penalties set forth in N.J.S.A. 56:8-1 et seq.
The Division has provided a 60-day comment period for this notice of proposal. Therefore, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.
 
Social Impact
The Division believes that the proposed new rules may have a positive impact on New Jersey consumers who choose to engage the services of international labor matching and international matchmaking organizations that are registered with the Division to the extent that the new rules will help ensure that such organizations are reputable because their owners and employees have been subjected to a criminal history background check. The proposed new rules may also have a positive impact on recruits from foreign countries who are placed in contact with New Jersey residents through registered international labor matching or matchmaking organizations to the extent that the recruits may request criminal history background check information on New Jersey clients, and must be provided with relevant information, in their native language, to help them ensure their physical safety once they arrive in New Jersey. The Division also believes that the proposed new rules may have a positive impact upon international labor matching and international matchmaking organizations providing services to New Jersey residents by helping to clarify the registration obligations imposed on such organizations by P.L. 2009, c. 152, N.J.S.A. 56:8-185 et seq.
 
Economic Impact
The proposed new rules may have an economic impact on international labor matching and international matchmaking organizations that are required to register, and on those organizations that choose to voluntarily register, with the Division under the new rules. These organizations must pay a one-time registration fee of $ 100.00, and may incur administrative costs associated with submitting documentation required for owner and employee certifications of eligibility, including the costs associated with obtaining criminal history background check information. These organizations may also incur administrative costs associated with maintaining their business records for the three-year period mandated under the new rules. In addition, New Jersey residents who engage the services of international labor matching organizations or international matchmaking organizations registered with the Division may incur administrative costs under the new rules if a recruit that the organization seeks to match with the New Jersey resident requests a criminal history background check of the resident. Under the proposed new rules, the New Jersey resident must bear the costs for this check.
 
Federal Standards Statement
A Federal standards analysis is not required because the proposed new rules are governed by P.L. 2009, c. 152, N.J.S.A. 56:8-185 through 56:8-194, and are not subject to any Federal requirements or standards.
 
Jobs Impact
The Division does not believe that the proposed new rules will result in the creation or loss of jobs in the State.
 
Agriculture Industry Impact
The proposed new rules will have no impact on the agriculture industry in the State.
 
Regulatory Flexibility Analysis
The Division cannot estimate the number of international labor matching organizations and international matchmaking organizations providing services to New Jersey residents that will be required to register with the Division under the proposed new rules. However, if these organizations are considered "small businesses" within the meaning of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., then the following analysis applies.
The proposed new rules will impose various reporting, recordkeeping, and compliance requirements upon such organizations. These requirements are discussed in the Summary above.
No additional professional services will be needed to comply with the proposed new rules. The costs of compliance with the proposed new rules are discussed in the Economic Impact above. The Division believes that the proposed new rules should be uniformly applied to all international labor matching organizations and international matchmaking organizations providing services to New Jersey residents that meet the threshold requirements for registration established under the new rules, consistent with the requirements of P.L. 2009, c. 152, N.J.S.A. 56:8-185 et seq. Therefore, no differing compliance requirements for any affected organization is provided based upon the size of the business.
 
Housing Affordability Impact Analysis
The proposed new rules will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the rules would evoke a change in the average costs associated with housing because the proposed new rules concern the provision of services by international labor matching organizations and international matchmaking organizations to New Jersey residents.
 
Smart Growth Development Impact Analysis
The proposed new rules will have an insignificant impact on smart growth and there is an extreme unlikelihood that the rules would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the proposed new rules concern the provision of services by international labor matching organizations and international matchmaking organizations to New Jersey residents.
 
Full text of the proposed new rules follows:
 
SUBCHAPTER 34.    INTERNATIONAL LABOR MATCHING ORGANIZATIONS AND INTERNATIONAL MATCHMAKING ORGANIZATIONS
 
13:45A-34.1   Purpose and scope
 
(a) The rules in this subchapter implement the provisions of P.L. 2009, c. 152, N.J.S.A. 56:8-185 et seq., concerning international labor matching organizations and international matchmaking organizations and establish procedures for the registration of such organizations.
 
(b) The rules in this subchapter shall apply to owners, prospective owners, and employees of international labor matching organizations and international matchmaking organizations that are required to register with the Division pursuant to N.J.S.A. 56:8-185 et seq., and N.J.A.C. 13:45A-34.3, and to owners, prospective owners, and employees of such organizations that choose to voluntarily register with the Division.
 
[page=1187] 13:45A-34.2   Definitions
 
The following words and terms when used in this subchapter shall have the following meanings, unless the context indicates otherwise.
 
"Client" means a resident of New Jersey for whom an international labor matching organization seeks to locate labor assistance from citizens of a foreign country residing outside of the United States, or for whom an international matchmaking organization renders dating, matrimonial, or social referral services involving citizens of a foreign country residing outside of the United States.
 
"Criminal history record background check" means a determination whether a person has a criminal record by cross-referencing that person's name and fingerprints with those on file with the Federal Bureau of Investigation, Identification Division, and the State Bureau of Identification in the Division of State Police.
 
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.
 
"Division" means the Division of Consumer Affairs in the Department of Law and Public Safety.
 
"Doing business in the United States" means that the international labor matching organization or the international matchmaking organization has a physical business office in the United States.
 
"Employee" means an employee of an international labor matching organization or international matchmaking organization whose job description or functional duties entail the solicitation of, or access to, personal information of New Jersey clients and recruits.
 
"International labor matching organization" means a corporation, partnership, sole proprietorship, or other entity doing business in the United States, whose primary purpose is to offer to New Jersey residents, opportunities to locate labor assistance from foreign recruits residing outside of the United States for the purpose of bringing the foreign recruit to New Jersey. The phrase "whose primary purpose is to offer to New Jersey residents" means that for the previous fiscal year, more than 50 percent of the organization's business consisted of clients seeking labor assistance who resided in New Jersey and that more than 50 percent of the organization's business consisted of placements for labor assistance sought by the New Jersey clients that were for foreign recruits.
 
"International matchmaking organization" means a corporation, partnership, sole proprietorship, or other entity doing business in the United States whose primary purpose is offering, including to New Jersey residents, dating, matrimonial, or social referral services involving citizens of foreign countries who are not residing in the United States, such as: (1) an exchange of names, telephone numbers, addresses, or statistics; (2) a selection of photographs; or (3) providing a social environment for introducing clients to recruits in a country other than the United States. The term shall not include an on-line personal services organization. The phrase "whose primary purpose is offering, including to New Jersey residents," means that for the previous fiscal year, more than 50 percent of the organization's business consisted of placements for dating, matrimonial, or social referral services involving foreign recruits and that more than 10 percent of such placements are for New Jersey clients.
 
"On-line personal services organization" means a corporation, partnership, sole proprietorship, or other entity that does business in the United States and for profit provides an on-line forum for persons to post personal profiles as a means of self-referral for dating, matrimonial, or other social purpose.
 
"Recruit" means a citizen of a foreign country residing outside of the United States who is recruited by an international labor matching organization for the purpose of bringing the laborer to New Jersey, or by an international matchmaking organization for the purpose of providing dating, matrimonial or social referral services.
 
13:45A-34.3   Registration
 
(a) On or before (90 days after the effective date of this subchapter), an international labor matching organization or an international matchmaking organization shall apply for registration with the Division of Consumer Affairs, and to have each owner, prospective owner, and employee of the organization certified by the Division as eligible to provide labor matching or matchmaking services to New Jersey residents. The organization shall be permitted to continue offering its services to New Jersey residents for 90 days after the date of application. If the organization has not satisfied the criteria for registration within 90 days after application, the organization may submit a written request for extension to the Division. An extension granted under this subsection shall not exceed 90 days.
 
(b) An organization that performs the services of an international labor matching organization or an international matchmaking organization but is not required to register with the Division on (the effective date of this subchapter) because the organization is not an international labor matching organization or an international matchmaking organization shall apply for registration with the Division within 90 days after the close of the fiscal year in which the organization satisfied the criteria in this section. The organization shall be permitted to continue offering its services to New Jersey residents for 90 days after the date of application. If the organization has not completed the registration process within 90 days after application, the organization may submit a written request for extension to the Division. An extension granted under this subsection shall not exceed 90 days.
 
(c) The Division shall maintain a list of all international labor matching organizations and international matchmaking organizations registered under this subchapter and shall make this list available to the public on the Division's website at www.njconsumeraffairs.gov.
 
(d) An organization that performs the services of an international labor matching organization or an international matchmaking organization but is not required to register with the Division because the organization is not an international labor matching organization or an international matchmaking organization as defined in N.J.A.C. 13:45A-34.2 may voluntarily register with the Division. An organization voluntarily registering with the Division shall comply with all requirements in this subchapter and shall be included in the list of organizations maintained by the Division and made available to the public pursuant to (c) above.
 
(e) An international labor matching organization or an international matchmaking organization applying for registration shall submit the following to the Division:
 
1. A completed application for registration, which shall contain:
 
i. The name, residence, and business address of all owners and prospective owners;
 
ii. The name and residence address of all employees; and
 
iii. The name and business address of a designated agent in New Jersey for service of process;
 
2. Written consent for the initiation of a criminal history record background check from each owner, prospective owner, and employee named in the application to determine whether any disqualifying criminal convictions, consistent with N.J.A.C. 13:45A-34.4, exist. A separate, signed consent form shall be submitted for each owner, prospective owner, or employee. Each owner, prospective owner, or employee shall also submit his or her fingerprints. The criminal history background check shall be conducted by the State Bureau of Identification in the Division of State Police and the Federal Bureau of Investigation.
 
i. The Division shall not certify as eligible to own an international labor matching organization or international matchmaking organization, or as eligible to be employed by such organization, any owner, prospective owner, or employee who refuses to consent to, or otherwise refuses to cooperate in, the securing of a criminal history record background check;
 
3. The criminal history record background check fee payable to the State vendor for digital fingerprinting for each owner, prospective owner, and employee named in the application; and
 
4. A registration fee of $ 100.00 payable to the Division.
 
(f) The Division shall issue a registration to an international labor matching organization or an international matchmaking organization, and shall issue to each owner, prospective owner, and employee of the organization a certification that the individual is eligible to provide labor matching or matchmaking services in New Jersey, following receipt of the results of a criminal history record background check revealing that the individuals have not been convicted of a disqualifying offense, as set forth in N.J.A.C. 13:45A-34.4.
 
(g) An international labor matching organization or international matchmaking organization shall file a supplemental registration application with the Division immediately upon hiring a new employee or [page=1188] obtaining a new owner. The supplemental application shall include written consent from the new employee or new owner for the initiation of a criminal history record background check and shall be accompanied by the criminal history record background check fee, unless the new employee or new owner has previously been certified by the Division as eligible to be employed by, or eligible to own, an international labor matching organization or international matchmaking organization. Unless the new employee or new owner has been previously certified by the Division, the new employee or new owner shall not provide labor matching or matching services to New Jersey residents until being certified by the Division to provide such services.
 
(h) Falsification of any information on the registration application may result in the denial of registration, or the suspension or revocation of registration and the assessment of penalties pursuant to the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq.
 
(i) An international labor matching organization or an international matchmaking organization shall notify the Division of any changes in the information submitted as part of organization's registration and/or supplemental registration application within 10 business days of such change.
 
(j) No international labor matching organization or international matchmaking organization required to register shall operate unless registered with the Division.
 
13:45A-34.4   Disqualifying crimes; petition for review
 
(a) A person whose criminal history record background check reveals a conviction for any of the following crimes and offenses shall be disqualified from owning or being employed by an international labor matching organization or an international matchmaking organization:
 
1. If the conviction was in New Jersey for a crime:
 
i. Involving danger to the person as set forth in N.J.S.A. 2C:11-1 et seq., 2C:12-1 et seq., 2C:13-1 et seq., 2C:14-1 et seq., or 2C:15-1 et seq.;
 
ii. Against others, including family and children, as set forth in N.J.S.A. 2C:24-1 et seq., or of domestic violence as set forth in N.J.S.A. 2C:25-17 et seq.;
 
iii. Involving theft as set forth in N.J.S.A. 2C-20-1 et seq.;
 
iv. Involving any controlled dangerous substance or analog as set forth in N.J.S.A. 2C:35-1 et seq., except N.J.S.A. 2C:35-10.a.(4);
 
v. Involving terrorism as set forth in N.J.S.A. 2C:38-1 et seq.; or
 
vi. Involving prostitution and related offenses as set forth in N.J.S.A. 2C:34-1; or
 
2. If the conviction was in another state or jurisdiction for conduct constituting any of the crimes described in (a)1 above under equivalent statutes in that state or jurisdiction.
 
(b) An owner, prospective owner, or employee who is notified by the Division that his or her criminal history record background check has revealed a disqualifying criminal conviction may, within 30 days after receipt of that notice, petition the Division for a review of his or her application. The request shall be in writing and shall cite reasons to substantiate the request for review, which may include, challenging the accuracy of the reported criminal record information or the submission of clear and convincing evidence of rehabilitation.
 
(c) In determining whether an applicant has affirmatively demonstrated rehabilitation, the Director shall consider the following:
 
1. The nature and seriousness of the offense;
 
2. The circumstances under which the offense occurred;
 
3. The date of the offense;
 
4. The age of the person when the offense was committed;
 
5. Whether the offense was repeated;
 
6. Social conditions that may have contributed to the offense; and
 
7. Any evidence of rehabilitation, including good conduct in the community; counseling, psychological, or psychiatric treatment; additional academic or vocational training; or personal recommendations.
 
(d) Within 30 days of being notified by the Division that an owner or employee's criminal history record background check has revealed a disqualifying criminal conviction, an international labor matching or matchmaking organization shall submit a certification that the owner or employee is no longer associated with the organization. Failure to comply with the requirements of this subsection may result in the suspension or revocation of the organization's registration and/or the imposition of penalties pursuant to N.J.S.A. 45:8-1 et seq.
 
13:45A-34.5   Information provided to recruits
 
(a) An international labor matching organization or an international matchmaking organization shall advise a recruit in writing, in the recruit's native language, that the recruit has the right to ask for criminal history record information on all clients he or she may be placed in contact with.
 
1. Upon receipt of a request for information from a recruit, an international labor matching organization or an international matchmaking organization shall refrain from providing any further services to the recruit or to the client to facilitate future interaction between the recruit and the client until the client has submitted to the organization a complete transcript of his or her criminal history record obtained from the State Bureau of Identification in the Division of State Police, and the organization has provided this information to the recruit. The client shall bear the cost for the criminal history record background check, including all costs of administering and processing the check.
 
(b) An international labor organization or an international matchmaking organization shall provide a recruit in writing with the telephone numbers for the Statewide Domestic Violence Hotline, available at http://www.state.nj.us/dca/divisions/dow/programs/sdvh.html, and the National Domestic Violence Hotline, available at http://www.thehotline.org/, and shall direct the recruit to the booklet entitled "Domestic Violence: The Law and You" available from the New Jersey Department of Community Affairs, Division on Women, at http://www.state.nj.us/dca/divisions/dow/publications/pdfs/dvthelawandyou_english.pdf. An international labor matching organization and an international matchmaking organization shall make the booklet available in the native language of the recruit if requested.
 
13:45A-34.6   Recordkeeping
 
(a) An international labor matching organization or an international matchmaking organization shall retain a copy of the organization's registration. The organization shall also retain a copy of the certification of each owner, prospective owner, and employee for the duration of the owner's, prospective owner's, or employee's affiliation with the organization. The certifications shall be made available upon request to members of the general public.
 
(b) An international labor matching organization or an international matchmaking organization shall maintain its business records for a minimum of three fiscal years. Such records shall be made available to the Division upon request.
 
13:45A-34.7   Violations
 
Any violations of this subchapter shall be deemed a violation of the Consumer Fraud Act and may subject an organization or person to the assessment of penalties pursuant to N.J.S.A. 56:8-1 et seq.


 

 


 

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