Legislative News

in the lobby

By: zoe baldwin

The 218th Legislative Session officially came to a close in early January, marking the end of a contentious and hurried lame duck session. At the time of this writing, Governor Murphy has signed 55 new laws, vetoed two, and still has another 100 to consider enacting before the window closes. Relevant to our industry, there was action on a host of labor and environmental issues in addition to safety and soil legislation.

WORST THINGS FIRST Top of the list for UTCA members is the apprenticeship bill that clarifies completion rate requirements for apprenticeship programs and institutes severe penalties for any mistakes made on the public works contractor registration form. The legislation, now on the Governor’s desk, stipulates that “Any person who makes or causes to be made, a false, deceptive or fraudulent statement on the public works contractor registration form shall be guilty of a misdemeanor, and shall, upon conviction, be subject to punishment by a fine of no more than $1,000.00, and permanent disqualification from bidding on all public work or contracts.” The Governor is expected to sign the legislation as-is. UTCA will participate in the development of regulations and will keep you updated as the matter progresses.

Another bill sent to the Governor’s desk concerns responsibility of contractors for wage claims against subcontractors. This bill would hold non-union prime contractors legally responsible for wage violations of not just subcontractors, but every sub-sub and below. We requested amendments two years ago when it advanced in the Senate and submitted our opposition again in lame duck. UTCA argued that it would be much more logical administratively and legally to require that every contractor and subcontractor be held liable only for the subcontractors with whom they contract directly. This would still create a second-tier responsible party in every instance thus ensuring this bill’s intended level of contractor accountability but would do so in a more direct manner without fundamentally changing the nature of bidding and liability. The legislature did not concede to our request and the bill is expected to be signed into law.

On a positive note, Senator Lagana agreed to amendments on legislation that originally would have allowed the Commissioner of Labor to access contractors’ tax records without cause, for the purpose of research, or assisting in investigations pursuant to any state wage, benefit, and tax law. UTCA requested and secured clarifying language that consigns this information sharing to “labor market research,” removing any ambiguity of intent. This legislation is also on the governor’s desk awaiting signature.

SILVER LININGS PLAYBOOK Despite the legislative overreach described above, there were some smaller, positive measures that passed during the final frenzy.

First was a bill addressing property access. As many contractors know, it's not just the price tag that presents a challenge to eliminating the toxic components in our drinking water systems. Pipe replacement efforts have been hampered by a host of issues, not the least of which have been unreachable landlords or property owners unwilling to allow access to their property. Legislation now on the Governor’s desk will enable municipalities to pass an ordinance that allows officials or their designees (i.e. contractors) to enter private property and replace lead service lines even without permission, as long as residents are notified at least 24 hours in advance. This will make it easier for contractors to plan and execute lead service line replacements, especially in communities with a high population of renters.

Another measure sponsored by Senator Vin Gopal imposes motor vehicle penalty points for certain violations of move over law and establishes a public awareness campaign. Under the current “move over law,” motor vehicle operators are required to reduce the speed of their vehicles and change lanes when approaching an authorized emergency vehicle; tow truck; or highway maintenance, emergency service, or sanitation vehicle that is displaying flashing, blinking, or alternating emergency lights. The amended bill, designated as the “Slow Down or Move Over, It’s the Law Act,” increases fines for violations and imposes two motor vehicle penalty points for a third or subsequent offense.

Finally, despite some challenges this session, UTCA was able to pass four bills in 2019. First passed was legislation to make the Local Aid program more efficient, and it has already made a visible difference in the timing and rollout of the critical NJDOT program. Next was an effort that started with a request from NJDOL in 2017 that requires all contractors on prevailing wage jobs be required to obtain public works contractor registration. Last but not least, two bills initiated by UTCA CEO Bob Briant, Jr. were passed during lame duck, both of which expand the NJ Infrastructure Bank’s access to federal WIFIA and TIFIA funds for water and transportation projects.

WHAT THEY DIDN’T DO The lame duck session also saw several initiatives stall, including independent contractor reform and an expansion of project labor agreements, and the legalization of marijuana has been pushed to voters for a decision, with a ballot question on the ballot in November 2020. We expect several of our platform goals to be met through this effort, as Association staff has been in the weeds on water policy for the past several years promoting policies that will ensure that our rate payer dollars are being reinvested back into our drinking water and wastewater infrastructure.

Pivoting to NJ Transit, February will see the last two hearings of the special committee charged with examining the agency, the next of which features UTCA Bob Briant, Jr. as an invited speaker. Bob will be focusing on the capital to operating transfer, and more broadly, Transit’s opaque use of capital funds; the need for more staff, specifically in capital programming; and other barriers to the agency’s ability to maintain a reliable and robust capital program. Senator Sweeney is chairing the special committee and has stated that he intends to announce a transit operations payfor once hearings are complete. While there is no real detail yet, this could be good news for our industry, which has long protested the agency’s escalating capital-to-operating transfers. FORESIGHT IS 2020 Aside from our water platform policies, UTCA will be working this year to pass several pieces of proactive legislation that deal with procurement issues. First is a bill that addresses an obstacle to municipal access to NJDOT Local Aid program funds that are procured through the Infrastructure Bank. Currently, an oversight in municipal bond law requires a 5% payment from communities seeking to use I-Bank transportation funds that is not required for their water program. While it may seem small, 5% can be a challenge for cash-strapped towns. Introduced by Senator Gopal, S767 removes the unnecessary surcharge and will make it easier to get Local Aid funds programmed and out on the street. Early this year, we will also be introducing legislation that helps standardize specifications and clean up certain parts of local public contracts law. This has been a major initiative for the industry spearheaded by UTCA in partnership with the Municipal Engineers, the League of Municipalities, and the Association of Counties. We are just finalizing some of the consensus proposals including standard bid packages and bid submissions, curable financial statements, and stockholder certifications. We will keep you updated as that conversation progresses. UTCA will also be reinvigorating negotiations on design-build legislation that stalled during the last session. Senate Transportation Chairman Patrick Diegnan and NJDOT Commissioner Diane Scaccetti have both expressed interest in passing the new procurement tool, and renewed movement is expected as the state continues to look for ways to maximize the impact of every transportation dollar. These efforts will be a major focus for 2020 and we look forward to getting some positive, proactive legislative moving for the industry. No Longer as Easy as ABC: Although the Legislature sent Murphy a flurry of bills meant to fight worker misclassification, they were unsuccessful in passing one measure that would have reclassified tens of thousands of freelance workers as regular employees. Proponents argue that regular employees are often improperly classified by business owners as independent contractors so employers can avoid employment taxes and other worker protections. But many independent contractors and freelancers objected to the bill, worried that it would force them out of their positions and into inflexible and potentially lower-paying jobs. The bill stalled in January but is expected to be revisited in the current session. UTCA has weighed in on behalf of contractors and will keep you updated as it progresses. Taking the Agreement out of Project Labor Agreements: Legislation that will extend PLAs on public work was introduced in both houses at the start of lame duck but failed to advance fully in either chamber. Specifically, the legislation removes from the definition of “public works project” all references to the kind of structure or improvement, instead identifying a project only as “construction, reconstruction, demolition or renovation.” That change extends the option of using a PLA to projects excluded under the current law, such as highways, bridges, pumping stations, and water and sewage treatment plants. The bill leaves unchanged the provisions of the law’s definition of a public works project that require a project to be worth at least $5 million in order to trigger the PLA requirement. Through VoterVoice, UTCA reached out to our membership for help in reaching state legislators directly and received a great response. Thank you to everyone who lent their voice to this important effort. UTCA has weighed in with the sponsors and legislative leadership and will keep you informed as the discussion continues. WATER’S UP, TRANSIT ON DECK, PROCUREMENT IN THE HOLE On January 27, the Senate Community and Urban Affairs Committee will be holding their first meeting in follow up to the Water Quality Accountability Act (WAQAA) hearings held last year. While the agenda has not yet been released, Chairman Troy Singleton has directly stated his interest in expanding asset management plan requirements to wastewater and stormwater, which would be a great win right out of the UTCA policy platform. Governor Murphy also highlighted lead in the annual State of the State address, applauding Newark Mayor Ras Baraka and Essex County Executive Joe DiVincenzo for their partnership to fast-track the elimination of lead service lines in the City and pledging to mobilize an army of workers to remediate lead statewide. This is a good indication that he will be supportive of the legislative output from the WQAA hearings.