Striving for Temporary Worker Rights No slam dunk, even in Blue NJ

The fight to protect temporary workers in New Jersey illustrates the difficulty of enacting sweeping legislation for this growing segment of the workforce in the face of firm opposition from business groups.

The New Jersey Act (A1474) would be the most comprehensive temporary worker measure passed in the United States, if enacted into law. But it faces intense lobbying from the American Staffing Association, which has a track record of blocking such efforts even in Democratic-majority parliaments.

The increasing use of temporary and contract labour, particularly among healthcare professionals during the Covid-19 pandemic, has attracted the attention of task forces and progressive policymakers. Even so, only a handful of states have specific laws protecting temporary workers, lagging behind the proliferation of other pro-worker legislative proposals such as higher minimum wages and restrictions on non-compete agreements for workers.

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

Padin and other pro-worker advocates want to change that, but concede it’s a steep climb. Business groups like the American Staffing Association say the temp model doesn’t require sweeping legislative changes, just better enforcement of existing laws to deal with “flying” staffing agencies that don’t play by the rules.

Temporary workers fall under the same federal labor laws as traditional, direct workers for the most part, and in many cases are 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 idea that there should be separate legislation for temporary workers is just not right,” he said.

Winding path in NJ

If New Jersey law becomes law, it would expose recruitment agencies and the companies that contract with them to potential lawsuits from workers alleging violations, either individually or as a group.

Among its many provisions, the proposal would create the only law in the country requiring employers to pay temporary workers the same average wage plus the cash equivalent of benefits as their regular, directly hired employees doing the same or similar work.

The law has already passed the New Jersey legislature once before, but Gov. Phil Murphy (D) conditionally vetoed it in September, prompting state legislatures to make changes, including some requested by the staff association.

The state assembly approved the revised text in October, but the Senate scheduled a vote and then postponed it twice, most recently on November 21, because the bill didn’t have enough votes to pass.

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

The governor’s version of the bill would “raise the cost of using contingent workers to the point of becoming almost impracticable,” said Alexis Bailey, vice president of government affairs at the New Jersey Business and Industry Association, which is also campaigning against it has bill.

One of the bill’s sponsors was ill with Covid-19 as of Nov. 21, and the Senate president recently stopped remote voting for sick senators, said Lou Kimmel, executive director of New Labour, a New Jersey workers’ rights group. The bill could get another chance in a final Senate vote on Dec. 22, he said.

“New Jersey is considered a model” for state laws protecting temporary workers, “but there are lessons to be learned here,” Kimmel said. “It’s not a slam dunk,” he said, even in a state with a Democratic majority in the legislature and other worker protections laws like a high minimum wage, paid sick leave and paid family vacation laws.

Narrow blue-collar focus

California, Illinois, Massachusetts and Washington have different statutes governing fixed-term employment agreements, which generally take narrower approaches than the New Jersey proposal. Washington law only requires that staffing agencies assess workplace hazards and provide safety training to temporary workers.

Massachusetts requires companies to provide workers with certain information before each job assignment, such as capping the fees that staffing firms can charge workers.

These Massachusetts and Washington statutes began as broader bills to provide a range of protections for temporary workers, but each has been narrowed over several legislative periods as the industry pushed back.

Democrats in the US House of Representatives also introduced a federal proposal similar to New Jersey’s bill in 2020 — including calling for equal pay — but have had no success pushing it forward.

Almost all of the legislation on the books, even the New Jersey proposal, applies to blue-collar jobs such as manufacturing, warehousing, or hospitality, but omits occupations where businesses increasingly rely on temporary workers, such as technicians and nurses.

“We need to see legislation that governs both white-collar workers and workers and lay some foundations for how workers are treated,” said Roberto Clack, executive director of Temp Worker Justice.

A California pay transparency law enacted earlier this year was a step in that direction, he said. In addition to expanding salary information in job advertisements, the law expands the requirement for employers to report salary data by race and sex to a government agency to include not only employees but also contract workers.

“I haven’t seen a huge outcry to protect professionals, administrators or IT professionals,” Malara said. “As that increases over time, I’m sure we’ll sit down with people to talk about something that addresses those concerns.”

Looking ahead, worker advocates aim to expand protections for temporary workers first in states that already have laws in place, such as expanding New Jersey’s bill for equal pay to Illinois, Padin said.

“We’ve just seen this type of work structure grow and the pandemic has helped, particularly in healthcare where we’re seeing massive growth in temp agencies,” Clack said. “The labor movement really needs to do more about this and pass more legislation across the country.”