February 27, 2023
In February 2023, Governor Murphy signed into law the New Jersey Temporary Workers’ Bill of Rights Act. The Act’s requirements are complicated and likely will result in significantly higher financial and compliance costs for employers that utilize the services of temporary help service firms to provide workers in the designated occupational categories covered by the law.
The good news for some nonprofits is that the new law will not apply to them. However, even for those nonprofits, the law could increase the cost of hiring some categories of temporary workers because of the higher pay the workers in the designated occupational categories will be receiving as a result of the Act.
Who’s Covered by the Act?
The Act applies just to temporary laborers assigned to a third party client (e.g., a nonprofit needing temporary help) through a temporary help service firm to perform work in any of nine different occupational categories (discussed below).
The Average Pay and Average Cost of Benefits Requirement
The Act requires that such a temporary laborer “not be paid less than the average rate of pay and average cost of benefits, or the cash equivalent thereof, of employees of the third party client performing the same or substantially similar work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions for the third party client at the time the temporary laborer is assigned to work at the third party client.” (Emphasis added.)
The Act does not provide any guidance on how to navigate this requirement. As the Reed Smith law firm correctly noted:
[T]his law creates a substantial burden on employers to align the temporary workers’ assignments with their own employees’ roles, compute the average of the amounts earned by their employees (some of which may have significant seniority or other relevant background experience resulting in higher earnings), determine the “average” “cash equivalent” of their employees’ benefits, and then ensure that the temporary employees working in the same roles receive at least this amount.
Most of the Act’s provisions will become effective on August 5, 2023. However, the nonretaliation provisions and new requirement to give each temporary laborer a written statement that includes information about the temporary help service firm, the third party client, and the name and nature of the work to be performed will go into effect on May 7, 2023. Note that the written statement must be in English and in the language identified by the laborer as the laborer’s primary language.
Covered Designated Occupational Categories
The Act applies only to the assignment of a temporary laborer by a temporary help service firm to perform work in any of the following nine occupational categories as designated by the Bureau of Labor Statistics (BLS) of the U.S. Department of Labor:
- 33-90000 Other Protective Service Workers, such as animal control workers, security guards, lifeguards and other recreational protective service workers, and school bus monitors
- 35-0000 Food Preparation and Serving Related Occupations
- 37-0000 Building and Grounds Cleaning and Maintenance Occupations
- 39-0000 Personal Care and Service Occupations, including animal caretakers; entertainment attendants (such as ushers, ticket takers, and dressing room attendants); makeup artists; childcare workers; workers at residential intellectual and developmental disability, mental health, and substance abuse facilities; and all personal care and service workers not listed separately
- 47-2060 Construction Laborers
- 47-30000 Helpers, Construction Trades
- 49-0000 Installation, Maintenance, and Repair Occupations
- 51-0000 Production Occupations
- 53-0000 Transportation and Material Moving Occupations
Specifically not included within the scope of the new law are Office and Administrative Support Occupations (43-0000).
When looking at the BLS categories, it is important to drill down to the relevant sections and click on links to get fuller descriptions of the specific types of jobs covered.
Complicated and Extensive Maze of Compliance Obligations
The compliance requirements of the Act are summarized in the following articles written by law firms we partner with:
- Fisher Phillips, Top 8 Takeaways from New Jersey’s Sweeping “Temporary Workers’ Bill of Rights”
- Ogletree Deakins, New Jersey Governor Signs Temporary Worker Protections Law
- Proskauer, New Jersey Enacts Temporary Workers’ Bill Of Rights Law
Joint Liability for Violations Committed by Temporary Help Service Firms
Nonprofits that use the services of temporary help service firms will be jointly liable for any violations of the Act with respect to the temporary laborers assigned to work for the nonprofits. Thus, it is essential that nonprofits carefully vet the firms they use, carefully monitor the firms’ compliance with the Act, and try to obtain from the firms a contractual provision that requires the firms to indemnify the nonprofits for the firms’ violations of applicable laws, including wage-hour and employment discrimination laws.
If you have questions about any of the topics discussed above, please contact Christine Michelle Duffy, Esq., in the Partnership’s Parsippany office, at email@example.com
or 973-240-6955 x303.
This document is provided as a general informational service to volunteers, clients, and friends of Pro Bono Partnership. It should not be construed as, and does not constitute, legal advice on any specific matter, nor does distribution of this document create an attorney-client relationship.