By Rachel H. Khedouri, Esq.
*UPDATE: – In connection with the new requirement for temporary help service firms to provide certain information to temporary laborers, the NJ Department of Labor and Workforce Development’s Division of Wage and Hour and Contract Compliance has published a “Temporary Laborer Assignment Notification” form, available HERE. Temporary help service firms must give this completed form to each temporary laborer upon assignment to a covered temporary position as of May 7, 2023.
On February 6, 2023, Governor Murphy signed Assembly Bill 1474 – known as the “Temporary Workers’ Bill of Rights” – which had been championed by labor and immigrant advocates to provide equal pay protections for certain workers placed by “temporary help service firms” in temporary roles at third-party client employers. The key provision of the new law is that a covered temporary worker may not be paid less than the average rate of pay and the average cost of benefits (or cash equivalent thereof) of regular employees performing the same or substantially similar work under similar working conditions on jobs requiring equal skill, effort, and responsibility. Staffing agencies and employers are jointly and severally liable for failure to meet these equal pay requirements, meaning that temporary workers may bring suit on their own behalf or as representatives of a class against either or both entities. The new law, which takes effect on August 5, 2023 (with select provisions in effect as of May 7), also imposes on both the staffing firm and its clients certain notice and record-keeping obligations and other restrictions as further outlined below.
Although the original bill applied to all temporary laborers with the exception of certain professional and clerical employees, the final legislation now more narrowly applies only to workers in designated classifications, including certain workers in protective service, food preparation and serving, building, and grounds cleaning and maintenance, personal care and service, construction, production, and transportation occupational categories.
In addition to setting equal pay protections for the covered categories of temporary workers, the new law also:
- Requires a temporary help service firm to register with the New Jersey Department of Labor and Workforce Development and imposes a duty on employers engaging such firms to verify that the firm is properly registered – a company may not enter a contract for employment of temporary laborers with any firm that is not so registered.
- Prohibits a temporary help service firm from charging workers for cashing a check and both firms and their clients from charging temporary laborers for:
- transportation to or from the designated work site;
- consumer reports or criminal background checks;
- or drug tests.
Certain wage deductions for meals and equipment are still permitted upon written authorization but may not cause the worker’s hourly pay to fall below minimum wage.
- Requires temporary help service firms to pay workers for a minimum of four hours when they are assigned to work for a client but no work is available.
- Prevents a temporary help service firm from interfering with workers’ rights to accept employment with the companies in which they are placed on a temporary basis.
- Tasks temporary help service firms with new notice and recordkeeping obligations, including providing statements to temporary laborers with, among other things, information on the firm, its workers’ compensation carrier, and the client, and details regarding the nature, timing, and compensation for the work to be performed, and an itemized statement on each worker’s paycheck stub. The staffing firm must provide additional notice when the worker is being assigned to a location of a strike, lockout, or other labor dispute. Firms must keep certain records of each temporary labor engagement (including the location of the work site, the type and number of hours worked, and the hourly rate) for a period of six years. Although the original bill required recordkeeping regarding a worker’s race, ethnicity, and gender, this was removed from the legislation prior to passage.
- Requires client employers to promptly provide certain information about the assignment to the staffing firm (no later than seven days following the last day of the work week worked by the temporary laborer) as well as provide a work verification form to each temporary laborer who is contracted to work for a single day. Employers also must reimburse staffing firms for wages and related payroll taxes for services performed by temporary workers as per the payment terms of their agreements with the firms.
Finally, the new law prohibits both the staffing firms and their clients from retaliating against temporary workers for exercising rights under the law. Termination or discipline within 90 days of the exercise of rights raises a rebuttable presumption that retaliation has occurred.
We anticipate that templates for the required notices and work verification forms will be developed by the Commissioner of Labor and Workforce Development in the coming months. Meanwhile, temporary help service firms and those companies that utilize such firms for workers in the designated categories should begin planning to comply with the new requirements.
If you need assistance reviewing your arrangements with temporary workers to ensure compliance with these new protections, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.