N.J. Admin. Code § 12:110-4.11

Current through Register Vol. 56, No. 12, June 17, 2024

Section 12:110-4.11 - Penalties

(a) If the time for compliance with an Order to Comply issued pursuant to this section elapses, and the employer has not made a good faith effort to comply, the Commissioner shall issue a second Order to Comply imposing a civil administrative penalty of up to $ 7,000 per day for each violation not abated. Penalties imposed under this section may be recovered with costs in a civil action commenced by the Commissioner by a summary proceeding under The Penalty Enforcement Law, N.J.S.A. 2A:58-1 et seq. in the Superior Court, county district court, or a municipal court, all of which shall have jurisdiction to enforce the Penalty Enforcement Law in connection with the Act.

1. If the violations are of a continuing nature, each day during which the violation continues after the date given for compliance in the Order to Comply shall constitute an additional separate and distinct offense.

(b) Each Order to Comply citing a failure to correct a violation and a proposed penalty shall state that it shall be deemed to be the final order of the Commissioner and not subject to review by any court or agency unless, within 15 working days from the date of issuance of the order, the employer notifies the Commissioner or his or her designee in writing that he intends to contest the proposed penalty before the Review Commission.

(c) The Commissioner may compromise and settle any claim for a penalty pursuant to this section in such amount as, in the discretion of the Commissioner, may appear appropriate and equitable under all of the circumstances, where the employer satisfies the Commissioner that such violation had been eliminated or removed or that such order had been met or satisfied, as the case may be.

1. In any claim involving investigations conducted by the Department of Health, the Commissioner shall make the determination as to the compromise or settlement of the claim in consultation with the Commissioner of Health.

(d) Penalties shall be based upon factors such as the gravity of each violation, the probability that an injury or illness would result from the continuance of the violation, the good faith efforts of the employer to comply, the presence of meaningful safety and health programs and the history of previous violations. The penalty structure adopted by the United States Secretary of Labor pursuant to the "Occupational Safety and Health Act of 1970" shall be a factor utilized in penalty assessments.

(e) In determining whether the employer is making a good faith effort to comply, the Commissioner of Labor and Workforce Development shall consider, among other factors:

1. Whether the employer has implemented appropriate measures to protect employees from an identified hazard, such as modifying work practices or procedures, providing temporary guards or barriers, placarding a hazardous condition or some combination of these methods, pending permanent abatement of the hazard;

2. Prior safety and health compliance record;

3. The presence of meaningful safety and health programs;

4. Contracts, work orders, or similar documents demonstrating that the employer has a plan of action, including specific deadlines, to permanently abate the hazard; and

5. The advice of the Commissioner of Health, or his or her designee, when the Order addresses health issues.

(f) When an employer submits a written request to delay the issuance of an Order to Comply establishing penalties, the Commissioner, or his or her designee, shall give notice of the request to employee representatives or affected employees, as appropriate, and provide them with a 10-day comment period.

1. If written comments are not received, the Commissioner or his or her designee shall determine whether a delay is warranted based upon the employer's good faith compliance efforts. If the delay is warranted the Commissioner or his or her designee shall issue a written final determination setting forth a date certain by which the employer shall come into compliance.

2. When the Order to Comply addresses health issues, the Commissioner of Health, or his or her designee, shall review the request and give notice to employee representatives or affected employees. Within 10 days of the close of the comment period, the Commissioner of Health, or his or her designee, shall transmit a recommendation, with any comments received, to the Commissioner, or his or her designee, for a final determination.

3. If written comments in opposition are received, the Commissioner or his or her designee shall review the matter and, within 20 days, give notice to all parties of his or her determination. Any party may appeal this determination within 15 working days of receipt by notifying the Commissioner or his or her designee in writing that he intends to contest this decision before the Review Commission. Such appeals will be processed in accordance with procedures established for Review Commission contests in N.J.A.C. 12:110-4.12

4. If the Commissioner or his or her designee determines that the employer is not making a good faith effort to come into compliance, an Order to Comply establishing penalties shall be issued within 20 days of such determination.

N.J. Admin. Code § 12:110-4.11

Amended by R.1998 d.33, effective 1/5/1998.
See: 29 N.J.R. 4440(a), 30 N.J.R. 80(a).
Former N.J.A.C. 12:110-4.11(a) through (c) were recodified to N.J.A.C. 12:110-4.10; former (d) and (e) were recodified as (a) and (c); added (b) and (d) through (f).
Amended by R.2008 d.302, effective 10/6/2008.
See: 40 N.J.R. 2409(a), 40 N.J.R. 5816(a).
In the introductory paragraph of (e), inserted "and Workforce Development".

Amended by 55 N.J.R. 309(a), effective 2/21/2023