As the calendar hits August, most state legislatures have adjourned, and those that have not are in the process of wrapping up proceedings for the year. However, in New Jersey and Illinois, there is still plenty of work being done when it comes to both states’ recently passed temporary worker rights bills.
New Jersey
In New Jersey, a federal court in late July denied the staffing industry’s motion to enjoin the Temporary Workers’ Bill of Rights Law enacted by the legislature earlier this year. Despite finding that the law likely will result in irreparable harm to many staffing firms, the court held that the industry’s arguments that the law is unconstitutional were unlikely to succeed at trial. The law, which applies to construction, light industrial, and other workers—but not professional or clerical workers—among other things
- Mandates temporary employee wages and benefits equivalent to those received by client employees performing similar work
- Limits conversion fees
- Prohibits agencies from charging a fee for providing transportation
In response to the court’s ruling, the group that brought the original lawsuit—the American Staffing Association; the New Jersey Staffing Alliance, an ASA-affiliated chapter; and the New Jersey Business and Industry Association—have filed a notice of appeal in the U.S. Court of Appeals for the Third Circuit appealing the district court’s denial of the parties’ request for a preliminary injunction. The parties will ask the Third Circuit to stay the district court’s action and enforcement of the statute while the appeal is pending. A briefing schedule, which the parties have asked to be done on an expediated basis, will be set in the near future.
ASA and New Jersey staffing firms incurred significant costs in bringing the lawsuit in the federal district court, and NJSA now is looking for staffing companies to assist with costs for the appeal by making a donation to its legal fund.
Proposed Regulations Published
Shortly before the court released its opinion, the New Jersey Department of Labor and Workforce Development issued proposed regulations to implement the law.
The proposed regulations outline how a temporary worker’s hourly rate of pay is to be determined, including when a company 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 about what is required for wage statements and payroll deductions, among other things.
ASA and NJSA will submit comments on the proposed regulations reflecting the industry’s concerns. Individual companies should feel free to submit their own comment letter as well. Public comments will be accepted until Oct. 20.
Illinois
On Aug. 4, Illinois Gov. J.B. Pritzker signed HB 2862, legislation that amends the Illinois Day and Temporary Labor Services Act. Among other things, the amendments provide that
- Temporary employees must be paid the same or similar pay and benefits received by equivalent direct hire employees after working for more than 90 calendar days for a client.
- Employees must be advised that they can refuse assignments to sites involving labor disputes.
- Registration fees will increase to $3,000 per year per agency; $750 for each branch office.
ASA, along with its Illinois lobbyist Paul Rosenfeld, met with the bill’s sponsors, and with leaders of the state’s senate and house of representatives, and secured the following modifications that significantly mitigate the impact of the amendments:
- Removal of the requirement to collect race and ethnicity data on every applicant
- Removal of the requirement to disclose to employees the hourly bill rate charged to clients
- Increased the waiting period, to comply with the pay and benefits mandate, from 60 to 90 days
ASA has submitted a letter to Gov. Pritzker urging the Illinois Department of Labor to delay implementing the law, especially the equal pay and benefit mandate, until final regulations are adopted with input from ASA and the Illinois Search and Staffing Association, an ASA-affiliated chapter. A copy of the letter is available here.
ASA will reach out to the Illinois Department of Labor to schedule a meeting to discuss concerns with the law and how they might best be addressed in the regulations. ASA will keep members updated as events unfold.
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