The biggest development in New Jersey employment law for 2023 is arguably the Temporary Workers Bill of Rights (the “TWBR”). The law’s provisions, which became effective in May and August of 2023, grant specific types of temp workers legal protection regarding wages, transportation, and employer notice and record-keeping.
Generally speaking, the TWBR was enacted to address pay inequities for workers the state legislature determined to be at a higher risk for exploitation by temp firms and their third-party clients. Here’s a brief run-down of the most impactful provisions of the law.
Which Temp Workers Are Covered?
It’s important to note that being a temp worker in New Jersey doesn’t mean you automatically fall under the TWBR. Rather, the TWBR only extends to the following categories of temp workers:
- Food preparation and serving
- Production (including, but not limited to, laundry and dry-cleaning; food processing; textile and wood-working)
- Personal care and service (including, but not limited to, coatroom/bathroom attendants; bellhops, baggage attendants and concierges; hair/nail salon workers; childcare workers; amusement park workers; and workers in facilities for rehabilitation or the disabled)
- Building and grounds cleaning and maintenance
- Protective services such as security and crossing guards
- Installation, maintenance and repair
These are broad categories that may not necessarily cover your particular temp position. For the TWBR to apply, your job needs to be listed under one of these categories by the U.S. Bureau of Labor Statistics (published on the agency’s website).
What Are the Pay Protections for Covered Workers?
In the Event of No Work, or a Transfer
Let’s assume you’re assigned by a temp firm to work a job for one of its customers. You report to the customer as directed, but then the customer informs you there’s no work for you that day. The TWBR requires you to be paid a minimum of four hours of your cancelled shift, at the agreed-upon rate of pay.
Likewise, if the customer transfers you to a different location during your shift, the TWBR requires you to be paid a minimum of two hours for the change in location at the agreed-upon rate of pay.
Covered Temp Workers Must be Paid the Same As Permanent Employees Performing Substantially Similar Work
This is most significant protection of the TWBR, designed to rectify the income disparity between temp and permanent employees who, for all intents and purposes, are performing the same jobs.
According to the New Jersey Department of Labor (“NJDoL”),
“Covered temporary workers cannot 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 where the performance requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”
So how do you determine whether your temp work is “substantially similar” to that performed by permanent employees of the client? Under the NJDoL’s proposed rules, job titles and worker seniority aren’t dispositive. Rather, “substantially similar” means the actual duties of the temp and the permanent worker are largely the same. For instance, a temp shampooer at a salon would not be considered as performing substantially similar work as a permanent stylist who cuts, colors and styles hair.
“Similarity” is further supported by factors such as:
- Work performed under comparable conditions (same job site, same production line, etc.);
- Work performed under comparable supervision (temp workers and permanent employees report to the same supervisor); and
- Work requiring a similar skill set and number of years of experience.
The TWBR prohibits temp firms from charging temp workers for transportation the firm provides to and from the worksite. The law also includes several safety mandates, such as requiring temp firms only use safe vehicles and drivers with valid licenses to transport workers.
Private Right of Action and Protection Against Retaliation
The TWBR provides temp workers with a lot of recourse against both temp firms and clients that run afoul of the law. Aggrieved temp workers may file a complaint against these parties with the New Jersey Department of Labor.
Alternatively, or concurrently, temp workers may file a civil suit in the superior court for either the county in which the violation occurred, or the county in which the worker lives. Such suits must be filed within six years of the worker’s employment by the temp firm, or within six years of the termination of the worker’s contract with the third-party client. Suits may seek to hold both the temp firm and the third-party client jointly and severally liable for wages owed.
Moreover, the TWBR prohibits both temp firms and third-party clients from retaliating against temp workers who exercise their rights under the act. In fact, the law specifies that if a temp worker is fired or disciplined within 90 days of engaging in “protected activity”, retaliation is presumed, and the onus is on the defendant(s) to rebut such a presumption. “Protected activity” includes, but is not limited to, workers’ complaints to the temp firm, to the third-party client, to a coworker, to a community organization, or to a state or federal agency.
Call for a Free Consultation
Understanding your legal protections under the Temporary Workers’ Bill of Rights can be challenging considering the law’s newness and scope. If you believe your rights have been violated, call our offices today. I would be happy to provide you with a free consultation.