On July 21, 2023, the New Jersey Department of Labor and Workforce Development posted on its website proposed regulations to implement the New Jersey Temporary Workers Bill of Rights. Public comments on the proposed regulations will be accepted until October 20, 2023.
Among other things, the proposed regulations detail how a temporary worker’s hourly rate of pay is to be calculated, including when an employer pays a comparator on a salary basis, and how to determine when temporary workers and third-party client employees are performing similar work; clarify that workers’ years of service are not relevant to determine whether two jobs are substantially similar; and provide additional clarity regarding what is required for wage statements and payroll deductions, among other things.
The proposed regulation seeks to implement the statue, which was signed into law on February 6, 2023 and requires temporary workers to be paid the same average rate of pay as a permanent employee of the third-party client who performs the same or substantially similar work for the employer at the same time the temporary worker is assigned to the position. It also goes one step further to require that temporary workers also receive the “average cost of benefits, or the cash equivalent thereof.”
The law does not apply to all temporary worker positions, but rather those positions that the Legislature considered to be “at greatest risk of exploitation.” For now, the law covers:
- Food Preparation and Serving Related Occupations
- Building and Grounds Cleaning and Maintenance Occupations
- Personal Care and Service Occupations
- Construction Laborers
- Helpers, Construction Trades
- Installation, Maintenance, and Repair Occupations
- Production Occupations
- Transportation and Material Moving Occupations
The law also requires detailed wage notices to be provided to temporary workers in writing in English and in the language identified by the temporary worker as their primary language.
The also makes clear that, beginning May 7, it is unlawful for either a temporary help service firm or third-party client to retaliate against a temporary laborer for exercising their rights under the law.
Most of the statutory provisions will take effect August 5. However, the provisions regarding hiring notices and prohibiting retaliation were effective May 7, 2023.
The law also allows an aggrieved temporary worker to institute a civil action in the Superior Court, with no exhaustion requirement, against both the temporary help service firm and the third-party client. The temporary help firm and third-party client could be held joint and severally liable for payment of wages or any other violation. The statute of limitations is six years from the final date of employment.
According to John Sarno, president of the Employers Association of New Jersey, the law also expressly provides that an action can be brought by one or more temporary laborers on behalf of themselves and other temporary laborers similarly situated. Employers will now likely face an increase in not only single plaintiff but also class action lawsuits.
“Employers that retain temp firms are on notice with this law,” Sarno says. “Joint and several liability means that the employer will be on the hook for violations committed by the temp firm.”
As such, Sarno recommends that employers have strong indemnification protection in their contracts with temporary help firms.