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Temp Workers May Finally See Improvements in the Law

By: Jennifer Weitz, Esq. and Ty Hyderally, Esq.

Temporary workers, who historically have had few legal protections intended specifically for them, are the focus of two identical bills before the New Jersey State Legislature. Assembly bill 6126 and Senate bill 4223 aim to protect the labor and employment rights of workers in this category, whom, as the bills note, are particularly vulnerable to abuse of their labor rights, including unpaid wages, failure to pay for all hours worked, minimum wage and overtime violations, unsafe working conditions, unlawful deductions from pay for meals, transportation, equipment, and other items, and other discriminatory practices. Further, as per the legislative findings, full-time temporary help service firm workers earn 41 % less than workers in traditional work arrangements and are far less likely than other workers to receive employer-sponsored retirement and health benefits, amplifying the effects of the lower wages.

Temp worker protections

The bills, introduced on December 6, 2021, would dramatically expand protections for temporary laborers, including the following:

  • When a temporary help service firm agrees to provide a temporary laborer, the firm will provide the laborer with a form that contains, among other information
    • contact information for either the firm or the firm’s agent facilitating the placement
    • the firm’s workers’ compensation carrier
    • the wages offered
    • the name and address of the assigned worksite of each temporary laborer
    • a description of the position and whether it will require any special clothing, protective equipment, and training, and whether any training or clothing will be provided by the temp firm or the third-party client
    • any licenses and costs charged to the laborer for supplies or training
    • whether a meal is provided by either the firm or the third-party client, and the cost, if any, of the meal
    • whether equipment is provided by either the firm or the third-party client, and the cost, if any, of the equipment
    • a schedule for any multi-day assignments
    • the duration of the assignment
    • the amount of sick leave that temporary laborers are entitled to under New Jersey’s laws, and the terms of its use
  • When there is a change in the schedule, shift, or location of an assignment for a multi-day assignment, the temp firm will provide notice to the laborer at least 48 hours in advance, or bear the burden of showing that such notice was not possible
  • No temporary help service firm can send any temporary laborer to a job site where a strike, lockout, or other labor dispute exists without providing to the laborer, at the time of dispatch, a written statement informing the laborer of the dispute and the laborer’s right to refuse the assignment
  • The temporary help service firm must employ personnel who can effectively communicate the above information to temporary laborers in Spanish, or in any other language that is generally understood where the temp firm is located
  • Any temp firm that violates any of the provisions in this section will be subject to a penalty of between $500-$1000 for each violation found by the Commissioner of Labor and Workforce Development

Temporary help service firms will also be required to keep records whenever they send temporary laborers to work, including the amounts of any deductions to be made from each laborer’s compensation by either the temp firm or the third-party client for the laborer’s food, equipment, income tax and/or Social Security deductions withheld, and every other type of deduction. They also must verify the actual costs of any equipment or meal charged to a temporary laborer.

As well, the third-party client must maintain and remit accurate time records to the temp firm; failure to do so will be a violation under the pending bill. The third-party client’s failure to remit any information required by the bill to a temporary help service firm will not be a defense to the temp firm’s recordkeeping requirements.

Further, the temporary help service firm may not charge a fee to transport a temp laborer to or from the designated work site. It may not restrict the right of a temp laborer to accept a permanent position with the third-party client or another employer, nor may it restrict the right of that third-party client to offer employment to a temp laborer.

Any temporary help service firm operating in New Jersey will be required to register with the commissioner, and will be required to provide proof of an employer account number for payment of unemployment insurance contributions and valid workers’ compensation insurance. The bill allows the commissioner to deny, revoke, or refuse to renew any registration for certain specified reasons. Accordingly, a third-party client is prohibited from entering into a contract for temporary laborers with any temp firm that is not registered. The third-party client has the duty to verify the temp firm’s status.

A temporary help service firm may not retaliate in any way against any temporary laborer for exercising any right under the proposed bill. The termination or disciplinary action by a temp firm against a laborer within 90 days of the exercise of the laborer’s rights under the bill raises a rebuttable presumption of retaliation. The bill also provides a private cause of action, whereby a person affected by a violation by either the temp firm or a third-party client may bring suit in Superior Court. A temp firm aggrieved by a violation by a third-party client may also institute an action in Superior Court. The bill also provides that actions may be brought by one or more temp laborers for and on behalf of themselves and other temporary laborers similarly situated.

The State Legislature had previously considered a bill providing certain protections for temporary laborers, in the 2018-2019 session, but the bill never made it out of assembly. However, the world has changed a lot since then, and the coronavirus pandemic has highlighted the importance of some previously overlooked sectors of the workforce. According to Temp Worker Justice, a national advocacy group, the number of temp jobs in New Jersey is growing three times faster than overall employment in the state, and temp jobs are being utilized throughout many sectors aside from the traditional administrative/clerical positions, such as in healthcare and IT.

The current bills are pending before their respective Labor Committees, and will hopefully move quickly to establish needed guidelines and protections for this growing and increasingly important part of the labor market.

En nuestra firma hablamos español. This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.

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