New Jersey is one of the most employee-friendly states in the nation; and its becoming more and more employee-friendly every year. On February 6, 2023, Governor Murphy signed the Temporary Workers’ Bill of Rights Act into law. This law clarifies and expands employee protections for non-exempt (hourly) employees who work for temporary staffing agencies.
As a preliminary matter, it is important to note that this Act does not apply to all temporary workers. Indeed, a prior version of the law was vetoed by Governor Murphy who requested a narrower application of the law. As a result, the final law defines “temporary laborers” as those who contract for employment in a “designated classification placement” with a temporary staffing agency. “Designated classification placement” is further defined to include:
- Food Preparation and Serving Related Occupations;
- Building and Grounds Cleaning and Maintenance Occupations;
- Personal Care and Service Occupations;
- Construction Laborers;
- Helpers, Construction Trades;
- Installation, Maintenance, and Repair Occupations;
- Production Occupations;
- Transportation and Material Moving Occupations; and
- Protective Service Workers.
Unfortunately, the law specifically excludes professional employees and secretaries/administrative assistants. It also does not apply to agricultural workers.
One of the primary protections for these workers is that they cannot be paid less than the average rate of pay and benefits (or cash equivalent) that is received by the permanent employees of the third-party client (i.e. the business entity that the temporary employee actually performs work for) who are doing essentially the same work. Thus, for example, if all the permanent construction laborers for ABC Contracting receive $25 per hour; the temporary employee doing the same or similar work must also be paid at least $25 per hour. Likewise, a worker must be paid overtime if the position and work would otherwise be subject to overtime under New Jersey’s minimum wage laws.
When the temporary employee is paid, the temporary staffing agency must provide the employee with a detailed statement listing:
- The name and contact information of the third-party client to whom the employee provided services;
- The number of hours worked each day;
- The rate of pay;
- The total earnings in the pay period;
- The amount and purpose of each deduction; and
- Any other information required by the Commissioner of Labor and Workforce Development.
If the employee was contracted to work a single day, the third-party client is required to provide the employee with a work verification form containing the worker’s name, the date, the work location, and the hours worked. If the worker is contracted to work, but is ultimately not utilized by the third-party client, the staffing agency is still required to pay the worker for a minimum of four (4) hours at the agreed-upon rate of pay.
For each new work assignment, the temporary staffing agency is required to provide written notice to the employee of:
- The name, address, and telephone number of the staffing agency;
- The name, address, and telephone number of the staffing agency’s workers’ compensation carrier,
- The name, address, and telephone number of the third party client,
- The Name, address, and telephone number for the New Jersey Department of Labor and Workforce Development;
- The name and nature of the work to be performed;
- The wages offered;
- The worksite name and address;
- The terms of transportation offered;
- A description of the position and whether it will require special clothing, protective equipment, and/or training, and who would be responsible for the costs of such;
- Whether a meal or equipment, or both, are provided, and who would be responsible for the costs of such;
- The assignment’s length; and
- Entitlement to earned sick leave.
The staffing agency is not allowed to restrict the worker’s ability to accept a permanent position with the third-party client or any other permanent employment, or to restrict the right of a third-party client to offer employment to a temporary worker. The staffing agency is additionally required to maintain detailed records of their temporary workers.
A worker may not be retaliated against for exercising any rights under this law, including any complaint or testimony that his/her rights were violated. It is worth noting that this provision applies even if the worker makes a complaint to a co-worker or community organization. The complaint need not be made to a supervisor or State agency (though that is also covered). There are set civil penalties for each type of violation. However, the worker also has a private right to sue the staffing agency and/or the third-party client – which are deemed jointly and severally liable for any violation. The employee is permitted to recover attorney’s fees and costs if she is successful in any such action.
Most of the Act’s provisions will go into effect on August 5, 2023. However, the new hire notices and prohibitions on retaliation will become effective on May 7, 2023. Since this is a new Act which has not yet been tested in the Courts, there is still some uncertainty about its real-world application.
The employment attorneys at McLaughlin & Nardi, LLC are experienced with New Jersey employment law, and will continue to monitor the situation so that we can advise both employers and employees about their rights and responsibilities under these new mandates. To learn more about what we may be able to do to help, please contact us by e-mail or telephone at (973) 890-0004.