New Jersey § 34:20-5

§ 34:20-5.

a. An employer, or any officer, agent, superintendent, foreman, or employee of the

employer who fails to properly classify an individual as an employee in accordance

with section 4 of this act, 1 for purposes of the “New Jersey Prevailing Wage Act,” P.L.1963, c. 150 ( C.34:11-56.25 et seq. ), the “unemployment compensation law,” R.S.43:21-1 et seq. , the “Temporary Disability Benefits Law,” P.L.1948, c. 110 ( C.43:21-25 et seq. ), the “New Jersey Gross Income Tax Act,” N.J.S.54A:1-1 et seq. , P.L.1965, c. 173 ( C.34:11-4.1 et seq. ) or other applicable State tax laws, and the “New Jersey State Wage and Hour Law,”

P.L.1966, c. 113 ( C.34:11-56a et seq. ), and fails to pay wages, benefits, taxes or other contributions required by any

of those acts, shall be: (1) Guilty of a disorderly persons offense and shall, upon conviction, be fined not

less than $100 nor more than $1,000 or be imprisoned for not less than 10 nor more

than 90 days, or both. Each week, in any day of which an employee is misclassified and each employee so

misclassified, shall constitute a separate offense. (2) If the failure is done knowingly, guilty of a crime of the second degree if the

contract amount is for $75,000 or above; guilty of a crime of the third degree if

the contract amount exceeds $2,500, but is less than $75, 000; and guilty of a crime

of the fourth degree if the contract amount is for $2,500 or less. In addition, the violator shall be deemed to have caused loss to the employees in

any amount by which the employees were underpaid in connection with the misclassification

and shall be subject to the provisions of N.J.S.2C:43-3 regarding fines and restitution to victims and be subject to other pertinent provisions

of Title 2C of the New Jersey Statutes, including, but not limited to, N.J.S.2C:43-4 , 2C:43-6 and 2C:44-1 . b. As an alternative to or in addition to any other sanctions provided by law for

violations of any provision of this act, when the Commissioner of Labor and Workforce

Development finds that an employer has violated this act, the commissioner is authorized

to assess and collect administrative penalties, up to a maximum of $2,500 for a first

violation and up to a maximum of $5,000 for each subsequent violation, specified in

a schedule of penalties to be promulgated by regulation by the commissioner in accordance

with the “Administrative Procedure Act,” P.L.1968, c. 410 ( C.52:14B-1 et seq. ). When determining the amount of the penalty imposed because of a violation, the commissioner

shall consider factors which include the history of previous violations by the employer,

the seriousness of the violation, the good faith of the employer and the size of the

employer's business. No administrative penalty shall be levied pursuant to this section unless the Commissioner

of Labor and Workforce Development provides the alleged violator with notification

of the violation and of the amount of the penalty by certified mail and an opportunity

to request a hearing before the commissioner or his designee within 15 days following

the receipt of the notice. If a hearing is requested, the commissioner shall issue a final order upon that

hearing and a finding that a violation has occurred. If no hearing is requested, the notice shall become a final order upon expiration

of the 15-day period. Payment of the penalty is due when a final order is issued or when the notice becomes

a final order. Any penalty imposed pursuant to this section may be recovered with costs in a summary

proceeding commenced by the commissioner pursuant to the “Penalty Enforcement Law

of 1999,” P.L.1999, c. 274 ( C.2A:58-10 et seq. ). c. Any sum collected as a penalty pursuant to this section shall be applied toward

enforcement and administration costs of the Division of Workplace Standards in the

Department of Labor and Workforce Development. d. When the Commissioner of Labor and Workforce Development finds that the employer

has violated provisions of this act, the commissioner may refer the matter to the

Attorney General or his designee for investigation and prosecution. Nothing in this subsection shall be deemed to limit the authority of the Attorney

General to investigate and prosecute violations of the New Jersey Code of Criminal

Justice, nor to limit the commissioner's ability to refer any matter for criminal

investigation or prosecution. e. A complaint or indictment under the provisions of subsection a. or subsection d.

of this section may be brought in Superior Court in accordance with the Rules of Court

of the State of New Jersey. 1

N.J.S.A. § 34:20-4.