New Jersey employers planning their headcount allocation and staff augmentation for the late summer and fall should be mindful of the significant new employment law protections that temporary workers in the state will have. The New Jersey Temporary Workers’ Bill of Rights, the first of its kind in the country, applies to individuals who are employed and placed by temporary help service firms with third-party clients to perform work in certain occupational categories as classified by the U.S. Department of Labor.
The law has six key components – notice of the terms of the engagement, record keeping for each assignment, guidelines to ensure safe and either free or non-obligatory transportation to the worksite, a right to be offered regular employment by the third-party client, pay standards and disclosures, and a prohibition against retaliation for exercising rights protected by the law. It applies to workers in the occupational categories of: food preparation and serving; building and grounds cleaning and maintenance; personal care and service; construction laborers; helpers in construction trades; installation, maintenance and repairs; production; transportation and material moving; and other protective service.
Requirements of Notice, Clarity and Predictability
For each placement, the law requires the temporary help service firm to provide the temporary employee in English and the employee’s primary language, details of the engagement, including:
- contact information for the temporary health service firm, its workers’ compensation carrier, the client, and the Department of Labor and Workforce Development;
- details as to what work is to be done, where, for how long and on what schedule;
- the amount paid and how paid sick leave will be calculated;
- terms of transportation that may be provided;
- descriptions of special clothing, protective equipment and training that will be required, and what will be provided by who; and
- whether meals are provided, by who and at what cost.
For multi-day assignments, the law additionally requires providing 48-hours’ notice to workers whenever possible before changing the schedule or location. Temporary workers must also be told in advance if they are being sent to the site of a strike, lockout or other labor dispute and notified of their right to refuse the assignment.
While these provisions are specific to the temporary help service firm, effective compliance will likely require that those firms look to their third-party clients for greater clarity with regard to the terms and conditions of work assignments, and may require greater notice and predictability in scheduling.
Obligations Extending to Businesses Hiring Temps
Significantly for businesses retaining temporary workers, the law prohibits those businesses (referred to as the third-party client) from paying a temporary laborer at a rate less than the average rate of pay and benefits for a regular employee of the client who is performing the same or substantially similar work with equal skill, effort, and responsibility, under similar working conditions. In other words, if you are augmenting your workforce with temporary help, you need to pay the temps at the same average wage rates as your regular employees doing that work.
The law also prohibits both temporary help service firms and their third-party clients from retaliating against a temporary worker for exercising any rights granted under the law. The law creates a rebuttable presumption that the termination or discipline of a temporary worker by the temporary help service firm within 90 days after engaging in protected activity is retaliatory. Both the temp firm and the third-party client can be privately sued for a violation of the law, and temporary workers can recover $20,000 in liquidated damages per incident of retaliation, or actual damages if they are greater.
The anti-retaliation provision and the notice provisions related to the terms of the engagement took effect on May 7, 2023. The remaining provisions of the law take effect on August 5, 2023.
By Tracey I. Levy
