Perhaps most significantly, the Act will require that certain temporary workers be paid at least the average pay for similar work performed by the client company’s regular employees.
Signed into law by Gov. Phil Murphy (D) on February 6, the Act is believed to be the farthest-reaching law protecting temporary workers in the United States. Some provisions of the law have been in effect since May.
Business advocacy groups had filed suit in federal court to block the August 5 provisions of the law from taking effect, but on Thursday, U.S. District Court Judge Christine O’Hearn, a Biden appointee, refused to issue an injunction. Judge O’Hearn found that the plaintiffs had shown irreparable harm but not that they were likely to succeed on the legal merits of their case – both of which are among the requirements for a court to grant a preliminary injunction.
Summary of the law
Barring an appeal, the entire Temporary Workers’ Bill of Rights will be in effect on Saturday. Here is a summary of the key provisions (the indented text is quoted from Judge O’Hearn’s decision with minor edits):
Workers covered. A 2022 version of the Act applied to all New Jersey temporary workers, their staffing agencies, and the agencies’ clients. However, Gov. Murphy conditionally vetoed that legislation in September 2022, and the current version is narrower but still quite broad.
The Act in its current form applies to temporary workers in the following industries:
(1) [P]rotective services, such as animal control, private investigation, and security; (2) food preparation, such as cooking, bartending, dishwashing, and serving; (3) building and grounds cleaning and maintenance, including pest control and landscaping; (4) personal care and services, such as hairdressers, attendants, bellhops, and childcare; (5) construction and related fields, such as carpentry, painting, electrical, and roofing; (6) installation, maintenance, and repair; (7) production, including manufacturing, fabricating, food processing, chemical processing, and plant operation; and (8) transportation and logistics.
Requirements. The following are highlights of the requirements of the Act:
- Pay. Temporary workers may not be paid less than the average rate of pay and average cost of benefits of employees of the client company who are performing the same or substantially similar work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions for the client at the time the worker is assigned. The Act also restricts the amount that a staffing agency may charge a client company for permanently hiring a temporary worker as a placement fee. Client companies as well as the staffing agencies are jointly and severally liable for violations.
- Disclosure. Temporary staffing agencies must provide laborers covered by the Act with certain information about each job placement, including the nature of the work to be performed; the wages offered; whether any special clothing, equipment, or training is required or provided; and the schedule for and duration of the assignment. Staffing agencies must also provide 48-hours' notice of a change in the schedule, shift, or location of an assignment when possible. Agencies further must inform workers of any strike, lockout, or other labor dispute and of the worker’s right to refuse the assignment.
- Recordkeeping. Staffing agencies must maintain records related to all placement transactions, including (1) information related to the client company and each worksite and the date of the transaction; (2) the name, address and specific location sent to work, the type of work performed, the number of hours worked, the hourly rate of pay and the date sent; (3) the name and address of the individual at each client's place of business responsible for the transaction; (4) any special qualifications or attributes requested by each client company; (5) copies of contracts with the client; (6) copies of notices required by subsection 3(a); and (7) details regarding deductions. The records must be retained for at least six years, and failure to do so, or failure by a client to remit accurate information, could result in a civil monetary penalty.
- Transportation to and from the worksite. Among other requirements, staffing agencies and their clients are prohibited from charging fees to workers for transportation to and from a worksite. They must provide transportation back to the point of hire if the worker has been transported to a worksite, and vehicles used to transport workers must be properly insured, be driven by properly-licensed drivers, and must have a seat and seat belt for every passenger.
- Pay statements. Among other requirements, staffing agencies must provide a temporary laborer certain information at the time of payment of wages. The client, at the end of the work day, must give the worker a verification form with required information, including the name, work location, and hours worked. In addition, staffing agencies are prohibited from withholding or diverting wages except as authorized by the statute.
Not surprisingly, the law prohibits retaliation by temporary staffing agencies and their client companies against covered workers who exercise their rights under the Act. Workers whose rights have been violated can bring private lawsuits in the New Jersey state courts, as can temporary staffing agencies against their client companies. In addition, temporary staffing agencies and client companies can be subject to civil penalties for violations.
The law is enforced by the state Division of Consumer Affairs and the state Department of Labor & Workforce Development. According to the court’s decision, proposed regulations have been issued, but the Department of Labor & Workforce Development website says that they have not yet been published.
Temp agencies, and the companies who use them – watch out!
Temporary agencies doing business in New Jersey, as well as the companies that use their services, should be careful to comply with the requirements of the new law, which are likely to provide a rich source of litigation for plaintiffs’ firms for years to come.
If you need assistance complying with the Temporary Workers’ Bill of Rights, please contact any attorney in our New Jersey offices.