By Maggie McHugh
The Temporary Workers’ Bill of Rights, signed by Governor Murphy on February 6, 2023, has been rolling out in waves. Certain provisions for temporary help service firms went into effect May 7, 2023, setting notice requirements for dispatching temporary workers with an “Assignment Notification” form which was issued by the Department of Labor and Workforce Development (DOL) on April 24, 2023. The Assignment Notification form provides information to the worker about the third-party business, the type of work to be performed, and the wages for the work, among other details.
As of August 5, 2023, temporary help service firms must obtain certifications from the Division of Consumer Affairs (DCA) for worker classification placements, must keep certain records each time they send a worker to work as a designated classification, and are prohibited from interfering with the temporary worker’s ability to gain permanent employment with the third-party client. Moreover, temporary workers must be paid at least the same average rate of pay and average cost of benefits, or equivalent, as permanent employees of the third-party client. If the temporary worker is designated to a certain third-party worksite but is not used by the third-party client, the law obligates the temporary help service firm to pay the worker a minimum based on the agreed upon rate, even where the firm sends the temp to work at another location for the same shift.
Notably, the request for injunctive relief to halt the implementation of this legislation filed by a staffing agency in N.J Staffing All v. Fais, 2023 WL 4760464 (D.N.J. Jul. 26, 2023) was denied per the Court’s July 26, 2023 Decision. Overall, this new legislation allows for greater oversight of temporary help service firms and third-party clients by the NJDOL and the DCA. Contracting with uncertified firms is prohibited for third-party clients. DCA will oversee enhanced certification requirements for temporary help service firms and DOL will handle enforcement actions. The DOL posted proposed regulations for the implementation of the Temporary Workers Bill of Rights on July 21, 2023. The DOL will accept public comments on this proposal until October 20, 2023.
The anti-retaliation provisions of the Temporary Worker’s Bill of Rights, also effective as of May 7, 2023, apply to the temporary help service firms, the third-party clients, and agents to prohibit retaliation against temporary workers for exercising their rights under the law. This particular legislation sets forth that termination or disciplinary action against a temporary worker within 90 days of the worker’s exercise of rights under the new law raises a rebuttable presumption of such action being retaliatory for the exercise of those rights. If successful in their claim, the temporary worker could be awarded the greater of all legal or equitable relief, or liquidated damages equal to $20,000 per incident of retaliation, reinstatement, and attorney’s fees and costs. While this legislation relates specifically to retaliation in relation to protected activity under the Temporary Workers’ Bill of Rights, this serves as a good reminder for employers to review procedures and policies to avoid any potential retaliation claims under the Conscientious Employee Protection Act and New Jersey Law Against Discrimination. Employers face potential liability for full-time, part-time, and temporary employees. Retaliation protections come into play for employees whenever they are penalized for asserting their rights or engaging in protected activity, whether the employees file formal complaints or simply speak to Human Resources, or their supervisors.
The content of this post should not be construed as legal advice. You should consult a lawyer concerning your particular situation and any specific legal question you may have.