54 N.J.R. 408(a)

VOLUME 54, ISSUE 5, MARCH 7, 2022

RULE PROPOSALS

Reporter

54 N.J.R. 408(a)

NJ - New Jersey Register  >  2022  >  MARCH  >  MARCH 7, 2022  >  RULE PROPOSALS  >  LAW AND PUBLIC SAFETY -- DIVISION OF CONSUMER AFFAIRS

Interested Persons Statement 

INTERESTED PERSONS 

Interested persons may submit comments, information or arguments concerning any of the rule proposals in this issue until the date indicated in the proposal. Submissions and any inquiries about submissions should be addressed to the agency officer specified for a particular proposal. 

The required minimum period for comment concerning a proposal is 30 days. A proposing agency may extend the 30-day comment period to accommodate public hearings or to elicit greater public response to a proposed new rule or amendment. Most notices of proposal include a 60-day comment period, in order to qualify the notice for an exception to the rulemaking calendar requirements of  N.J.S.A. 52:14B-3. An extended comment deadline will be noted in the heading of a proposal or appear in a subsequent notice in the Register. 

At the close of the period for comments, the proposing agency may thereafter adopt a proposal, without change, or with changes not in violation of the rulemaking procedures at      N.J.A.C. 1:30-6.3. The adoption becomes effective upon publication in the Register of a notice of adoption, unless otherwise indicated in the adoption notice. Promulgation in the New Jersey Register establishes a new or amended rule as an official part of the New Jersey Administrative Code. 

Agency

LAW AND PUBLIC SAFETY > DIVISION OF CONSUMER AFFAIRS

Administrative Code Citation

  Proposed New Rules: N.J.A.C. 13:45C-4.1, 4.2, and 4.3

Text

  Uniform Rules on Discrimination in Licensed Professions

Authorized By: Andrew J. Bruck, Acting Attorney General.

Authority: N.J.S.A. 45:1-17(b).

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2022-031.

Submit comments by May 6, 2022, to:

Sean P. Neafsey, Acting Director

State of New Jersey

Division of Consumer Affairs

Office of the Director

PO Box 45027

Newark, New Jersey 07102

     or electronically at:   http://www.njconsumeraffairs.gov/Proposals/Pages/default.aspx.

The agency proposal follows:

  Summary

  The Acting Attorney General, pursuant to his statutory authority at N.J.S.A. 45:1-17(b), is proposing new rules, N.J.A.C. 13:45C-4.1, 4.2, and 4.3, concerning discrimination in licensed professions and occupations. The purpose of this rulemaking is to clarify and firmly establish that prohibited discrimination, harassment, and retaliatory conduct by holders of professional and occupational licenses and certificates (licensees) constitute professional or occupational misconduct, subject to discipline by the relevant licensing boards and committees.  

  By way of background, systemic racism and other barriers to equity for historically disadvantaged groups remain entrenched throughout American life, so it is not surprising that systemic inequities and discrimination have been associated with a wide variety of professional services. For instance, reports indicate that members of historically underrepresented groups continue to face obstacles to entering licensed professions; that people of color are still too often treated differently as consumers of professional services because of their race; and that other inequities exist in access to professional services.  

  Today, discrimination on the basis of protected characteristics in the provision of professional services or in employment constitutes "professional or occupational misconduct," within the meaning at N.J.S.A. 45:1-21.e, and licensees who engage in such misconduct are subject to professional discipline. Nevertheless, only three boards currently have explicit anti-discrimination regulations: the Board of Social Work Examiners, N.J.A.C. 13:44G-10.7(e); the Alcohol and Drug Counselor Committee, N.J.A.C. 13:34C-1.9(b)5; and the Board of Psychological Examiners, N.J.A.C. 13:42-10.4(d).  

  Discrimination amounting to professional misconduct warrants discipline regardless of which board issued the offender's license. No licensee should think otherwise. Accordingly, the Acting Attorney General is proposing these rules to make clearer to the public--including licensees and those whom they serve--that all of New Jersey's professional boards have authority to discipline professionals who engage in unlawful discrimination and harassment.  

  The proposed new rules at N.J.A.C. 13:45C-4, address discriminatory conduct, including prohibited discrimination, harassment, and reprisals, by licensees. The rules clarify the professional boards' and committees' authority to discipline licensees for unlawful discrimination and for taking retaliatory action against those who exercise rights under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 et seq., or other Federal or State civil rights or anti-discrimination law.  

  N.J.A.C. 13:45C-4.1 addresses the scope of the subchapter and defines certain key terms. This section establishes that the subchapter will apply to all individuals authorized pursuant to Title 45 or Title 52 of the Revised Statutes to practice a profession or occupation. This section defines, among other terms, "engage in prohibited discrimination" to mean engaging in conduct that has a direct or substantial relationship to the activity regulated by the board and that violates the NJLAD or any other applicable Federal or State civil rights or anti-discrimination law. It also defines the conduct that constitutes a reprisal, including taking retaliatory action because a person has exercised rights pursuant to the NJLAD or other Federal or State civil rights or anti-discrimination law, or coercing, intimidating, threatening, or interfering with any person who has exercised rights, or encouraged another to exercise rights, under such a law. Finally, this section clarifies that any terms that are used and not defined within Subchapter 4 will have the same meaning as at N.J.S.A. 10:5-5.  

  N.J.A.C. 13:45C-4.2 addresses prohibited misconduct. Subsection (a) establishes that a licensee who has been found in an administrative proceeding before a board or the Office of Administrative Law (OAL) to have engaged in prohibited discrimination against any current or prospective client, patient, student, supervisee, colleague, or employee will be deemed to have engaged in professional misconduct within the meaning at N.J.S.A. 45:1-21.e and may be subject to discipline. Subsection (b) establishes that a licensee who has been found to have engaged in prohibited discrimination by a court or a State or Federal agency will be deemed to have engaged in professional misconduct within the meaning at N.J.S.A. 45:1-21.e and may be subject to discipline.  

  N.J.A.C. 13:45C-4.3 addresses reprisals. Subsection (a) establishes that a licensee who has been found in an administrative proceeding before a board or the OAL to have engaged in a reprisal against any person has committed professional misconduct within the meaning at N.J.S.A. 45:1-21.e and may be subject to discipline. Subsection (b) establishes that a licensee who has been found by a court or a State or Federal agency to have engaged in a reprisal against any person will be deemed to have [page=409] engaged in professional misconduct within the meaning at N.J.S.A. 45:1-21.e and may be subject to discipline.  

  In accordance with N.J.S.A. 45:1-17.b, all affected boards were advised of the Acting Attorney General's intent to proceed with this rulemaking through a letter dated December 3, 2021. No board has acted to propose its own rules on the subject matter of this rulemaking since that date.  

  The Acting Attorney General has determined that the comment period for this notice of proposal is 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this notice is excepted from the rulemaking calendar requirement.  

  Social Impact  

  The Acting Attorney General believes the proposed new rules will have a positive impact on both licensees and the public at large. Systemic inequities and discrimination have been associated with a wide variety of professional services throughout the country. The COVID-19 pandemic has exposed and exacerbated entrenched racial disparities, particularly as they relate to health care. The proposed new rules will make clear that discriminatory conduct by licensees that has a direct or substantial relationship to the activity regulated by the professional and occupational boards and committees constitutes professional misconduct and will not be tolerated. Collectively, the 51 professional boards and committees regulate approximately 720,000 licensees that practice a trade or profession in this State. Clarifying that discrimination within the context of professional practice is sanctionable will send a clear message and protect the health, welfare, and safety of the public.  

  Economic Impact  

  The proposed new rules are expected to have a positive economic impact on the public by reducing the incidence of discrimination by professionals and, thereby, lowering the costs associated with such conduct. The proposed new rules are not expected to have any economic impact on licensees, as they are not expected to incur any additional costs in complying with the proposed new rules.  

  Federal Standards Statement  

  Although violation of Federal anti-discrimination laws constitutes professional misconduct pursuant to the proposed new rules, the proposed new rules do not create standards that conflict with Federal law. Therefore, a Federal standards analysis is not required.  

  Jobs Impact  

  The proposed new rules are not expected to 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 proposed new rules cover all licensees regulated by the professional boards and committees supported by the Division. If these licensees 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 impose no new costs, and it is not expected that licensees will need to employ any additional professional services to comply with the requirements of the proposed new rules. The proposed new rules impose no reporting or recordkeeping requirements. However, they do impose compliance requirements as detailed in the Summary above. The Acting Attorney General believes that the proposed new rules should be uniformly applied to all licensees to ensure the welfare of the general public in the provision of professional services. Therefore, no differing compliance requirements for any licensees are provided based on the size of the business.  

  Housing Affordability Impact Analysis  

  The proposed new rules will have an insignificant impact on the affordability of housing in New Jersey, and there is an extreme unlikelihood that the proposed new rules will evoke a change in the average costs associated with housing, because the proposed new rules clarify that prohibited discrimination by a licensee constitutes professional misconduct.  

  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 proposed new rules will 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 rules clarify that prohibited discrimination by a licensee constitutes professional misconduct.  

  Racial and Ethnic Community Criminal Justice and Public Safety Impact  

  The Acting Attorney General has evaluated the proposed new rules and determined that they will not have an impact on pretrial detention, sentencing, probation, or parole policies concerning adults and juveniles in the State.  

  Full text of the proposed new rules follows:  

  SUBCHAPTER 4.   ANTI-DISCRIMINATION  

  13:45C-4.1    Applicability and definitions  

  (a) This subchapter shall apply to all persons licensed, certified, registered, or otherwise authorized pursuant to Title 45 or Title 52 of the Revised Statutes to practice a profession or occupation.  

  (b) The following words and terms, when used in this subchapter, shall have the following meaning, unless the context clearly indicates otherwise:  

  "Board" means any professional or occupational licensing board, committee, or sub-unit of a board or committee within the Division.  

  "Director" means the Director of the Division of Consumer Affairs.  

  "Division" means the Division of Consumer Affairs.  

  "Engage in a reprisal" means to, in any way that has a direct or substantial relationship to the activity regulated by a board:  

  1. Take any retaliatory action against a person because that person has, with respect to rights afforded, or practices or acts prohibited, under the New Jersey Law Against Discrimination, N.J.S.A 10:5-1 et seq. (the NJLAD), or any other applicable Federal or State civil rights or anti-discrimination law:  

  i. Opposed any prohibited practices or acts;  

  ii. Sought legal advice;  

  iii. Shared relevant information with legal counsel;  

  iv. Shared information with a governmental entity; or  

  v. Filed a complaint or testified or assisted in any proceeding; or  

  2. Coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of that person's rights under the NJLAD or any other applicable Federal or State civil rights or anti-discrimination law; or  

  3. Coerce, intimidate, or threaten any person on account of that person's having aided or encouraged any other person in the other person's exercise or enjoyment of rights under the NJLAD or any other applicable Federal or State civil rights or anti-discrimination law.  

  "Engage in prohibited discrimination" means to engage in conduct that has a direct or substantial relationship to the activity regulated by a board and that violates the NJLAD or any other applicable Federal or State civil rights or anti-discrimination law.  

  "Licensee" means any licensee, permittee, certificate holder, or registrant of any board.  

  (c) Any terms used, but not defined, in this subchapter that are defined at N.J.S.A. 10:5-5 shall have the same meanings as delineated within that statute.  

  13:45C-4.2    Prohibited conduct  

  (a) A licensee who has been found in an administrative proceeding brought before a board or before the Office of Administrative Law to have engaged in prohibited discrimination against any current or prospective client, patient, student, supervisee, colleague, or employee shall be deemed to have engaged in professional or occupational misconduct within the meaning at N.J.S.A. 45:1-21.e, and may be subject to discipline.  

  (b) A licensee who has been found by a court or a State or Federal agency of competent jurisdiction to have engaged in prohibited discrimination against any current or prospective client, patient, student, supervisee, colleague, or employee shall be deemed to have engaged in [page=410] professional or occupational misconduct within the meaning at N.J.S.A. 45:1-21.e, and may be subject to discipline.  

  13:45C-4.3    Reprisals  

  (a) A licensee who has been found in an administrative proceeding brought before a board or before the Office of Administrative Law to have engaged in a reprisal against any person shall be deemed to have engaged in professional or occupational misconduct within the meaning at N.J.S.A. 45:1-21.e, and may be subject to discipline.  

  (b) A licensee who has been found by a court or a State or Federal agency of competent jurisdiction to have engaged in a reprisal against any person shall be deemed to have engaged in professional or occupational misconduct within the meaning at N.J.S.A. 45:1-21.e, and may be subject to discipline.