Originally posted on: https://www.employmentlit.com/2023/03/09/new-jersey-creates-permanent-protections-for-temporary-laborers/
By: Jennifer Weitz, Esq. and Ty Hyderally, Esq.
On February 6, 2023, the New Jersey Legislature passed legislation providing protections for temporary laborers. The bill is intended to specifically cover workers in the following occupations:
- Food preparation and service
- Building and grounds cleaning and maintenance
- Personal care and service
- Construction
- Helpers and those in the construction trades
- Installation, maintenance and repair
- Manufacturing
- Transportation and material moving
According to the bill’s legislative findings, temporary laborers tend to be Black and Latino, earn 41% less than workers in traditional work arrangements, and typically do not have retirement and health benefits through their jobs. Unsurprisingly, temp laborers are also more likely to face abuse of their labor rights, such as unpaid wages, non-payment for all hours worked, minimum wage and overtime violations, unsafe work conditions, unlawful deductions for meals, transportation, equipment, and other items, and discrimination.
The new law does not cover professional employees, secretaries or administrative assistants, and does not affect any agency, office, department, division, etc. of the State. The bill relies on the occupational categories utilized by the U.S. Department of Labor Bureau of Labor Statistics to clarify the categories of workers who are covered by its protections.
A key section of the new law requires the temp firm to provide certain information in writing, such as contact information for the firm, the firm’s workers’ comp carrier, a description of the position and the wages offered, and, for multi-day assignments, the schedule, in whatever format the assignment was accepted, whether by phone, text, or email. If there is a change in the schedule, shift, or location of a multi-day assignment, that information must also be conveyed in the appropriate format, not less than 48 hours in advance. Further, no temp agency may send any temporary laborer to a placement that is the site of a strike, lockout, or other labor dispute without providing the temporary laborer a written statement informing them of the dispute and their right to refuse the assignment. The temporary help services firm must also provide, on its own or through a vendor, people who can communicate all of the above information in Spanish (or any other language generally understood in the area where the temp firm operates). Violations of this section are subject to penalties of $500-$1000, collectible by the Commissioner of Labor and Workforce Development.
The new law also deals at length with the transportation of temp workers to and/or from a work site. The temporary help services firm is, generally, jointly and severally liable for the conduct of anyone who transports a worker. The firm cannot require the temporary laborer to use any transportation provided by the firm or by a particular vendor, and it cannot refer a laborer to any individual for transportation. It also cannot require a temporary laborer to join a specific carpool When a temp firm does transport a worker to a job site, the firm must also provide transportation back to the point of hire at the end of each work day.
There are a number of new provisions regarding payment of wages. A temp firm must provide a temp worker with a statement for each pay period, on the paystub or on a form approved by the Commissioner, and containing the following information:
- Name, address, and phone number of each client where the laborer worked;
- Number of hours worked at each client during the pay period;
- Rate of payment for each hour worked;
- Total earnings;
- Amount and purpose of any deductions made.
After any deductions for meals and equipment, a temp worker’s hourly wage may not dip below the state or federal minimum wage. A temp firm also may not charge a temp worker a check cashing fee for a check issued by the firm. As with other employers, neither a temp firm nor a third-party client may withhold or divert wages from the temporary laborer.
Moreover, no temporary help service firm may prohibit a temporary laborer from accepting a permanent position with a third-party client or any other permanent employment, nor may the firm restrict a third-party client from offering a job to a temporary laborer. A firm may charge a placement fee to a third-party client for a temp worker placed by the firm, according to a formula set forth by the law.
All temporary help services firms must be certified by the Director of the Division of Consumer Affairs, and all third-party clients who seek temp laborers must ensure they deal only with certified firms. A temp firm must also obtain a surety bond for not less than $200,000. A copy of the bond must be filed with the Director. There are exceptions for any temp firm whose laborers are covered by a collective bargaining agreement, if the agreement expressly provides for: wages, hours of work, work conditions, a streamlined process for resolving nonpayment of wages, documentation of the workers’ comp policy in effect, and compliance with all provisions of section 8(c) of the law.
The new law also prohibits a temporary help service firm or a third-party client from retaliating against a temporary laborer who makes a complaint to either the temp firm or the client, or to a community organization, before a public hearing, or to a state or federal agency.
Lastly, the new law provides a private right of action for any individual against a temp firm or a third-party client. The law also expressly authorizes class actions by one or more temporary laborers on behalf of themselves and others similarly situated. A temp firm that suffers a violation from a third-party client may also bring a civil action. A temp laborer who pursues a civil action may recover liquidated damages of $20,000 per incident of retaliation, plus attorney’s fees and costs. The statute of limitations for bringing an action is six years from the final date of employment by the temporary help service firm or the third-party client, or six years from the date of termination of the contract between the temporary help service firm and the third-party client.
The bill, which will become effective in May 2023 (180 days after the date of enactment), has many provisions that affect both temporary laborers and temp firms, as well as third parties that contract with temp firms. For more information on this important new law please contact our firm.
Click here for the full text of the bill.
