New Jersey drew the nation’s interest in February when Gov. Phil Murphy signed a new law that is sure to garner the attention of staffing firms across the country for months to come. Coined the “New Jersey Temp Worker Bill of Rights,” the law places heavy burdens on the many New Jersey-based staffing firms and their customers by requiring an array of new terms of employment and worker notifications.
Covered workers. The legislation focuses on temporary workers in “designated classification placement[s]” and utilizes the Bureau of Labor Statistics’ Standard Occupational Classification system to detail the covered positions. Covered job classifications include grounds cleaning and maintenance, personal care and service occupations, and construction trades, among several others. Ultimately, many of the implicated job titles are service oriented or involve manual labor. Specific examples of covered jobs include barbers, skincare specialists, concierges, security guards, bartenders and dishwashers.
That said, the law’s scope is not entirely straightforward. Among the specified classifications are residual, catch-all subclassifications that do not specify the type of workers that are covered. For example, the law covers all “Food and Preparation and Serving Related Occupations.” The BLS breaks this classification into several subclassifications, including an “All Other” subclassification. It is not clear what kinds of positions would be included in this subclassification, though the BLS does include illustrative examples. The law also does not explicitly adopt the bureau’s Classification Manual, so it is unclear how to resolve situations where a position includes certain tasks in covered and excluded occupations. All of this means any employer’s analysis needs to be done on a case-bycase basis.
Equal pay. The most prominent new requirement is that staffing firms must pay temporary workers the same as their permanent counterparts under certain circumstances. It is the nation’s first temporary worker equal pay mandate. The law provides that any temporary worker must be paid the same average rate of pay and equivalent benefits (or equivalent cash payment thereof) if the temporary worker performs the same or substantially similar work on jobs which require equal skill, effort and responsibility and which are performed under similar working conditions. Benefits can be tricky; staffing firms tend to contract with several different clients at once, and this law will cause temporary workers’ benefits to fluctuate unpredictably. What is predictable is that requiring the same average rate of pay and benefits will have the effect of boosting temporary workers’ pay above some permanent workers, as it’s based on the average.
Information. Additionally, temporary staffing firms must provide each dispatched worker with over 11 different points of information. That information includes but is not limited to the length of the assignment, the amount of sick leave available, the terms of transportation, the wages offered, scheduling, whether meals will be provided, and a description of the position. This information must be provided in English and in the language identified by the employee as the employee’s primary language. Furthermore, staffing firms maintain a duty to promptly update temporary workers of any changes.
Deductions. Seeking to ensure temporary workers receive minimum wage, the law takes issue with certain deductions that have the effect of dropping workers’ wages below the minimum wage. Temporary staffing firms cannot deduct costs for items like meals or safety equipment if it will cause the temporary worker to earn less than the New Jersey minimum wage.
The new law is chock-full of additional provisions, and temporary staffing firms should discuss it — as well as developments in other states — with counsel. The law has so many nuances, requirements and restrictions that some view it as threatening the very existence of temporary firms by creating an extremely difficult regulatory framework. Lawyers should expect additional regulations as practitioners and businesses require clarification and guidance regarding this sweeping new law.
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