Q. Do temporary workers have workplace protections in New Jersey?
A. Yes. On February 6, New Jersey Governor Phil Murphy signed Assembly Bill No. A1474 / S511 (also known as the Temporary Workers’ Bill of Rights). The Bill of Rights establishes several new labor and employment protections for the state’s 125,000+ temporary workers.
The Bill of Rights introduced several protections for temporary laborers, defined in the law as workers who contract for employment in a designated classification placement with a “”temporary help service firm.”” A temporary help service firm (more commonly known as a staffing firm or a temp agency) assigns temporary workers to the firm’s clients to handle temporary or excessive workloads.
The largest change is the introduction of state oversight to the placement of temporary workers by staffing firms. Under the new law, all placements must be certified by the director of the division of consumer affairs in the Department of Law and Public Safety. The certification process requires a form and a certification fee. Firms that fail to comply with the certification requirements may be suspended.
In addition, the Bill of Rights requires staffing firms to pay temporary workers the same rate of pay and equivalent benefits as a permanent employee of the third-party client. Staffing firms are no longer permitted to charge temporary workers fees for transport to and from a placement or job site. In addition, firms may not deduct pay for meals and equipment if those deductions result in the temporary worker being paid below minimum wage. The bill contains penalty provisions for firms that do not pay the equivalent rate but does not explain how to calculate that rate — an oversight that will likely lead to confusion and implementation issues.
The Bill of Rights also permits workers to request biweekly paychecks instead of daily wage payments. Although the change is beneficial for temporary workers who no longer must incur multiple personal check-cashing fees and other costs, staffing firms may face issues ensuring that their payroll systems can handle different payment cycles. Firms who fail to comply risk penalties under the Fair Labor Standards Act and New Jersey’s state wage and hour laws.
The Bill of Rights also imposes new recordkeeping requirements on staffing firms. Firms must provide temporary workers with a statement for each job placement with information about the third-party employer, the nature of the work, whether meals and equipment are provided, and whether sick leave is provided. In addition, firms must keep records of each temporary worker sent to a placement, including contact information and qualifications of the worker, employment contracts, and deductions. Firms must also provide an itemized paycheck to temporary workers and make records related to the number of hours billed to a third-party client available to a temporary laborer within five days of request.
The Bill of Rights imposes steep penalties on both staffing firms and employers that retaliate against temporary workers for exercising their new rights. Most notably, firing or disciplining a temporary worker within 90 days of that worker exercising his/her rights creates a rebuttable presumption of retaliation. Temporary workers alleging retaliation may pursue either a $20,000 penalty per retaliation incident or all other available legal or equitable relief, whichever is greater. In addition, the Bill of Rights grants temporary workers a private right of action in Superior Court if they are harmed by a violation under the law.
Staffing agencies and any employers utilizing the services of third-party workers should ensure that they understand the new requirements under the Bill of Rights, particularly as the penalties for violations are harsh. Staffing firms must ensure that any temporary workers are being paid the same average rate of pay as the client pays a permanent worker in the same position. Therefore, staffing agencies and their clients will need to determine how best to share such information.
In addition, companies should consider the timing of any complaints before asking a staffing agency to take action to discipline or terminate a temporary worker, as firing or disciplining a temporary worker within 90 days of that worker exercising his/her rights under the new law creates a rebuttable presumption of retaliation, creating liability for both the company and the staffing agency.
Affected staffing firms and employers should consult with counsel to ensure that their recordkeeping, payroll, and other human resources systems comply with the new Bill of Rights requirements.