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Push for Temp Worker Rights No ‘Slam Dunk,’ Even in Blue N.J.

Nov. 25, 2022, 10:45 AM

The struggle to pass temp worker protections in New Jersey illustrates the difficulties of enacting far-reaching laws for this growing segment of the labor force in the face of staunch opposition from business groups.

The New Jersey bill (A1474) would be the most sweeping temp worker measure passed in the US if it becomes law. But it’s faced intense lobbying by the American Staffing Association, which has a track record of blocking such efforts even in Democratic-majority legislatures.

The growing use of temp and contract labor, particularly among health professionals during the Covid-19 pandemic, has drawn attention from labor groups and progressive policymakers. Despite that, specific temp worker protection laws are on the books in only a handful of states, lagging behind the spread of other pro-worker legislative pushes such as higher minimum wages and limits on employee noncompete agreements.

“There’s very, very little regulation of temporary staffing in this country. Other countries do a lot more,” said Laura Padin, director of work structures at the National Employment Law Project. Some countries mandate equal pay for temp workers and ban the use of temporary labor in hazardous industries, she said.

Padin and other worker advocates are aiming to change that, while acknowledging it’s a steep climb. Business groups including the American Staffing Association say the temp work model doesn’t need sweeping changes in law, just better enforcement of existing laws to crack down on “fly-by-night” staffing agencies that don’t play by the rules.

Temp workers are largely covered by the same federal workplace laws as traditional, direct-hire employees, and in many cases they’re also covered by state programs such as workers’ compensation and unemployment insurance, said Toby Malara, vice president of government relations for the American Staffing Association.

“The thought that there have to be separate laws to cover temp staffing employees is just not correct,” he said.

Winding Path in N.J.

If the New Jersey bill becomes law, it would subject staffing agencies and the companies that contract with them to possible lawsuits by workers alleging violations, either individually or as a class.

Among its many provisions, the proposal would create the only law in the country requiring that employers provide temp workers the same average pay plus the cash equivalent of benefits as their regular, direct-hire employees who do the same or similar work.

The bill already passed the New Jersey legislature once, but Gov. Phil Murphy (D) conditionally vetoed it in September and asked state lawmakers to make changes, including some that the staffing association requested.

The state Assembly approved the revised version in October, but the Senate has scheduled and then postponed a vote twice, most recently Nov. 21, because the bill didn’t have enough votes to pass.

The staffing association still opposed the bill after Murphy’s revisions and has urged senators to negotiate with the industry to pass a less-sweeping “right to know” law instead, Malara said.

The governor’s version of the bill would “so greatly drive up the cost of utilizing temp workers that it will make it almost unworkable,” said Alexis Bailey, vice president of government affairs at New Jersey Business and Industry Association, which also has lobbied against the bill.

One of the bill sponsors was out sick with Covid-19 on Nov. 21, and the Senate president recently stopped allowing remote voting for senators who are out sick, said Lou Kimmel, executive director of New Labor, a New Jersey workers rights group. The bill could get another chance at a final Senate vote on Dec. 22, he said.

“New Jersey is seen as a model” for state temp worker protection bills, “but there’s lessons to be learned here,” Kimmel said. “It’s not a slam dunk,” he said, even in a state with a Democratic-majority legislature and other worker protections such as a high minimum wage, paid sick time, and paid family leave laws.

Narrow, Blue-Collar Focus

California, Illinois, Massachusetts, and Washington have passed varying laws to regulate temporary work arrangements, generally taking narrower approaches than New Jersey’s proposal. Washington’s law only mandates that staffing firms evaluate work-site hazards and provide temp workers with safety training.

Massachusetts requires the firms to give workers certain information up front before each job assignment such as the name of the company, type of work they’ll be doing, rate of pay, and who to contact in case of an injury or other problem, as well as limiting the fees staffing firms can charge workers.

Those Massachusetts and Washington laws started off as broader legislative proposals to provide a range of temp worker protections, but each was narrowed over several legislative sessions as the industry pushed back.

Democrats in the US House also floated a federal proposal in 2020 similar to the New Jersey bill—including the equal pay requirement—but had no success at advancing it.

Nearly all of the laws on the books, even the New Jersey proposal, apply to blue-collar jobs such as manufacturing, warehousing, or food service, but leave out professions where businesses increasingly rely on temporary, contract labor such as tech workers and nurses.

“We need to see laws that govern both white-collar workers and blue-collar workers and create some baselines on how workers are treated,” said Roberto Clack, executive director of Temp Worker Justice.

A California pay transparency law enacted this year took a step in that direction, he said. The law, in addition to requiring salary information in job ads, expands the requirement that employers report pay data by race and gender to a state agency to cover not only employees but also contract labor.

“I haven’t seen a huge cry to protect professionals, clerical administrative folks, IT professionals,” Malara said. “If that increases over time, we’ll certainly sit down with folks to talk about something that addresses those concerns.”

Looking ahead, worker advocates are aiming to expand temp worker protections first in states that already have laws on the books, such as spreading the equal pay requirement in New Jersey’s bill to Illinois, Padin said.

“We’ve only seen this kind of work structure grow, and the pandemic has been a contributing factor to that, especially in health care where we’re seeing massive growth in temp staffing agencies,” Clack said. “There’s a real need for the labor movement to do more about this and pass more legislation around the country.”

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloombergindustry.com

To contact the editors responsible for this story: Rebekah Mintzer at rmintzer@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com