July 31, 2023 Written by David Frankel, Esq.
On February 6, 2023, Governor Phil Murphy signed the New Jersey Temporary Workers’ Bill of Rights (N.J.S.A. 34:8D-1 et seq.) (the “Law”). On Friday, July 21, 2023, the Department of Labor and Workforce Development (the “Department”) filed proposed regulations to the Law (N.J.A.C. 12:72) (the “Regulations”), providing much needed guidance, including a method for calculating the Law’s pay equity provisions.
Below is a non-exhaustive list of many of the obligations imposed by the Regulations. There is a 60-day comment period for the Regulations, and we recommend that those affected provide comments to the Department.
Notification Requirements:
· Assignment Notification Statement: When a temporary help service firm (a “firm”) dispatches a temporary laborer (a “laborer”) to work in a designated classification placement, the firm must provide the laborer with an Assignment Notification Statement using the form made available by the Department. The Assignment Notification Statement must be provided in English and in the language identified by the employee as their primary language. For multi-day assignments, the firm is only required to provide this statement on the first day of the assignment and any day where the terms listed on the statement are changed. Refer to N.J.A.C. 12:72-3.1(e) for a list of items the statement must include and N.J.A.C. 12:72-3.1(c) for the manner by which the statement must be provided to laborers.
· Notice of Change on Multi-Day Assignment: For a multi-day assignment, when there is a change in the schedule, shift, or location, the firm must, when possible, provide 48 hours advance notice in a manner appropriate for how the assignment was accepted by the laborer, detailed in N.J.A.C. 12:72-3.2(a). The firm has the burden of showing that it was not possible to provide the required notice.
· Notice of Labor Dispute: Firms must provide written notice to laborers, at the time of dispatch, of a labor dispute at the premises of a designated classification placement and the laborer’s right to refuse the assignment.
· Confirmation of Having Sought Work: If a laborer employed by a firm is not placed with a client or otherwise contracted to work, the firm must provide to the laborer, if requested, written confirmation that the laborer sought work on that day.
· Translations of Notices: It is a firm’s responsibility to make the above statement, notices, and confirmation available to laborers in Spanish or any other language that is generally understood in the locale of the firm (i.e., the language identified by the employee as their primary language).
Recordkeeping Obligations:
· Refer to N.J.A.C. 12:72-4.1 for a firm’s recordkeeping obligations with regard to each laborer assignment. Such records must be maintained by the firm for six years from the date of the record’s creation. The firm must permit the records to be inspected by the Commissioner of the Department or their designee (the “Commissioner”) during normal business hours. In addition, these records must also be made available to the temporary laborer or an authorized representative for copying at no cost during normal business hours (with some exceptions).
· Refer to 12:72-4.2 for a client’s recordkeeping and record remitting obligations with regard to each laborer assigned.
Transportation:
· A firm cannot require a laborer to use transportation provided by the firm. In addition, a firm or client, or contractor or agent of either, cannot charge a fee to the laborer to transport the laborer to or from the worksite.
· Firms are prohibited from referring a laborer to any person for transportation to or from a worksite, unless the transportation is a public mass transportation system or is free for the laborer. Referral means (1) directing the laborer to accept a specific carpool as a condition of work, or (2) any mention of the cost of a carpool. A referral does not include informing the laborer of the availability of a carpool driven by another laborer.
· Refer to N.J.A.C. 12:72-5.4 for motor vehicle safety requirements.
· Unless they request otherwise, a laborer transported to a work site must be provided transportation back to the point of hire at the end of each work day.
Post-Employment Restrictions:
· A firm cannot place restrictions on the laborer from either accepting a permanent position with a client or any other permanent employment, and cannot prohibit a client from offering employment to the laborer.
· The firm may charge a placement fee to the client. Refer to N.J.C.A 12:72-6.2 for placement fee restrictions.
Pay Equity:
· Laborers must not be paid less than the average rate of pay and average cost of benefits (or the cash equivalent thereof) of client’s employees performing the same or substantially similar work on jobs the performance of which requires equal skill, effort, and responsibilities, and which are performed under similar working conditions for the client at the time the laborer is assigned to work at the client. Refer to N.J.C.A 12:72-7.2 for the formula to calculate this amount. At the time that the firm contracts with the client for the services of a laborer, the client must provide the firm with a listing of the hourly rate of pay and cost per hour of benefits for each employee of the client who the client determines would be a comparator employee.
· N.J.C.A. 12:72-7.3 provides detailed principles that may be used for determining if a laborer and a client’s employee are performing substantially similar work.
Charges; Payroll Deductions:
· Unreturned Reusable Equipment: A firm can deduct the actual market value of returned reusable equipment that was provided to laborer by the firm from the laborer’s wages, provided that the laborer authorizes the deduction in writing at the time the deduction is made.
· Non-Required Items: If a firm makes available for purchase by a laborer any equipment, clothing, accessories, or other items that are not required by the nature of the work (either by law, custom or as a requirement of the client), the firm may only charge up to actual market value.
· Meals: A firm cannot charge a laborer for a meal that they do not consume and, if consumed, can only charge up to the actual cost of the meal. A firm cannot condition employment of a laborer on the purchase of a meal.
· Consumer Report, Criminal Background Check, or Drug Test: a firm or client cannot charge a laborer for conducting a consumer report, criminal background check, or drug test.
Other Responsibilities and Protections:
· Detailed Itemized Statement: Firms must provide laborers with detailed itemized statements at the time that the firm pay the laborer, on either the laborer’s paycheck stub or using a form made available by the Department. Refer to N.J.C.A. 12:72-9.1(a) for specific requirements.
· Work Verification: For temporary laborers with single day assignments, the client must provide a work verification using a form made available by the Department. Refer to N.J.C.A 12:72-9.1(b) for specific requirements.
· Annual Earnings Summary: A firm must provide a temporary laborer with an annual earnings summary for the preceding year no later than February 1 of the subsequent year.
· Bi-Weekly Payments: Laborers may request bi-weekly payments, rather than daily payments, and firm must provide written notice to temporary laborers of this option.
· Time and Mode of Wage Payments; Check Cashing Fees Prohibited: Firms must comply with N.J.A.C. 12:55-2.4 for employees regarding the time and mode of wage payments.
· Wage Rate: A firm must pay a laborer no less than the “wages offered” that are also indicated on the Assignment Notification Statement.
· Non-Utilization; Change in Worksite: If the firm contracted with a client for a laborer to perform work at a client worksite and the laborer is not utilized, then the firm must pay the laborer a minimum of four hours of pay at the agreed upon rate. If a firm contracts with a client for a laborer to perform work at the client’s worksite, but then the firm contracts with the client or another client for the laborer to work at a different worksite during the same shift, in addition to the amounts due for the work performed at the new worksite, the firm must pay the laborer a minimum of two hours of pay at the agreed upon rate for the work that would have been performed at the original worksite.
· Third-Party Client Payments to Temporary Help Service Firm: A client is required to reimburse a firm wages and related payroll taxes for services performed for the client by a laborer, according to payment terms outlined on invoices, service agreements, or stated terms provided by the firm. Firms may file complaints with the Commissioner for violations of the preceding sentence.
Retaliation:
· Firms and party clients cannot retaliate against laborers for exercising any rights granted under the Law. When within 90 days of the laborer’s exercise of rights protected under the Law, a firm terminates either either terminates employment or takes a disciplinary action against the laborer, there is a rebuttable presumption that such action was retaliation.
Penalties:
· Refer to N.J.C.A 12:72-1.3 for penalties for violations of the Law and Regulations.