Bill Text: NJ A5246 | 2018-2019 | Regular Session | Introduced
Bill Title: Provides certain protections for temporary laborers.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2019-05-13 - Introduced, Referred to Assembly Labor Committee [A5246 Detail]
Download: New_Jersey-2018-A5246-Introduced.html
Sponsored by:
Assemblyman JOE DANIELSEN
District 17 (Middlesex and Somerset)
Assemblywoman YVONNE LOPEZ
District 19 (Middlesex)
SYNOPSIS
Provides certain protections for temporary laborers.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning employment and protection of temporary laborers, supplementing Title 34 of the Revised Statutes, and amending P.L.1989, c.331.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) The Legislature finds and declares:
a. At least 127,000 individuals work for temporary and staffing firms in New Jersey. Approximately 100 temporary labor service agencies with several branch offices are licensed throughout the State. Moreover, there are a large, though unknown, number of unlicensed temporary labor service agencies that operate outside the purview of law enforcement.
b. Recent national data indicate that the share of Black and Latino temporary and staffing workers far outstrips their proportion of the workforce in general. In addition to a heavy concentration in service occupations, temporary help agency workers are heavily concentrated in the production, transportation, and material moving occupations and manufacturing industries. Further, full-time temporary help agency workers earn 41 percent less than workers in traditional work arrangements, and these workers are far less likely than other workers to receive employer-sponsored retirement and health benefits.
c. Recent studies and a survey of low-wage temporary laborers themselves find that, generally, these workers are particularly vulnerable to abuse of their labor rights, including unpaid wages, failure to pay for all hours worked, minimum wage and overtime violations, unsafe working conditions, unlawful deductions from pay for meals, transportation, equipment, and other items, as well as discriminatory practices.
d. Current law is inadequate to protect the labor and employment rights of these workers.
2. (New section) As used in P.L. , c. (C. ) (pending before the Legislature as this bill):
"Commissioner" means Commissioner of Labor and Workforce Development, or a designee of the commissioner.
"Employ" means to suffer or permit to work for compensation, including by means of ongoing, contractual relationships in which the employer retains substantial direct or indirect control over the employee's employment opportunities or terms and conditions of employment.
"Employer" means any person or
corporation, partnership, individual proprietorship, joint venture, firm,
company, or other
similar legal entity who engages the services of an employee and who pays his wages, salary, or other compensation, or any person acting directly or indirectly in the interest of an employer in relation to an employee.
"Hours worked" means all of the time that the employee is required to be at his or her place of work or on duty. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) requires an employer to pay an employee for hours the employee is not required to be at his or her place of work because of holidays, vacation, lunch hours, illness, and similar reasons.
"Person" means any natural person or his legal representative, partnership, corporation, company, trust, business entity, or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee, or beneficiary of a trust thereof.
"Temporary laborer" means a person who contracts for employment with a temporary labor service agency.
"Temporary labor applicant" means a person who requests a job assignment through a temporary labor service agency, whether in the presence of the agency, in writing, or through an online application process.
"Temporary labor" means work performed by a temporary laborer at the business of, or for, a third party client of a temporary labor service agency, the duration of which may be specific or undefined, pursuant to a contract or understanding between the temporary labor service agency and the third party client. Temporary labor does not include labor or employment of a professional or clerical nature.
"Temporary labor service agency" means any person or entity engaged in the business of employing temporary laborers to provide services, whether or not a fee is charged to a temporary laborer or a third party client, to or for any third party client pursuant to a contract between the temporary labor service agency and the third party client. Temporary labor service agency does not include an employment agency as that term is defined by section 1 of P.L.1989, c.331 (C.34:8-43).
"Third party client" means any person who contracts with a temporary labor service agency for obtaining temporary laborers.
3. (New section) a. Whenever a temporary labor service agency agrees to send a person to work as a temporary laborer, the temporary labor service agency shall provide the temporary laborer, at the time of dispatch, a statement, in writing in English and in the language identified by the employee as the employee's primary language, containing the following items on a form approved by the commissioner:
(1) the name of the temporary laborer;
(2) the name, address, and telephone number of:
(a) the temporary labor service agency, or the contact information of the agency agent facilitating the placement;
(b) its workers' compensation carrier;
(c) the worksite employer or third party client; and
(d) the Department of Labor and Workforce Development;
(3) the name and nature of the work to be performed;
(4) the wages offered;
(5) the name and address of the assigned worksite of each temporary laborer;
(6) the terms of transportation offered to the temporary laborer;
(7) a description of the position and whether it shall require any special clothing, protective equipment, and training, and what training and clothing will be provided by the temporary labor service agency or the third party client; and any licenses and any costs charged to the employee for supplies or training;
(8) whether a meal or equipment, or both, are provided, either by the temporary labor service agency or the third party client, and the cost of the meal and equipment, if any;
(9) for multi-day assignments, the schedule; and
(10) the length of the assignment.
In the event of a change in the schedule, shift, or location of an assignment for a multi-day assignment of a temporary laborer, the temporary labor service agency shall provide written notice of the change not less than 48 hours in advance to the temporary laborer, when possible. The temporary labor service agency shall bear the burden of showing it was not possible to provide the required notice.
If a temporary laborer is assigned to the same assignment for more than one day, the temporary labor service agency shall be required to provide the employment notice only on the first day of the assignment and on any day that any of the terms listed on the employment notice are changed.
If the temporary laborer is not placed with a third party client or otherwise contracted to work for that day, the temporary labor service agency shall, upon request, provide the temporary laborer with a confirmation that the temporary laborer sought work, signed by an employee of the temporary labor service agency, which shall include the name of the agency, the name and address of the temporary laborer, and the date and the time that the temporary laborer receives the confirmation.
b. No temporary labor service agency shall send any temporary laborer to any place where a strike, a lockout, or other labor dispute exists.
c. The commissioner shall require temporary labor service agencies to employ personnel who can effectively communicate the information required in subsections a. and b. of this section to temporary laborers in Spanish or in any other language that is generally understood in the locale of the temporary labor service agency.
d. Any temporary labor service agency that violates this section shall be subject to a civil penalty not to exceed $500 for each violation found by the commissioner. That penalty shall be collected by the commissioner in a summary proceeding in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
4. (New Section) a. Whenever a temporary labor service agency sends one or more persons to work as temporary laborers, the temporary labor service agency shall keep the following records relating to that transaction:
(1) the name, address, and telephone number of the third party client, including each worksite, to which temporary laborers were sent by the agency and the date of the transaction;
(2) for each temporary laborer: the name and address, the specific location sent to work, the type of work performed, the number of hours worked, the hourly rate of pay, and the date sent. The third party client shall be required to remit all information required under this paragraph to the temporary labor service agency no later than seven days following the last day of the work week worked by the temporary laborer;
(3) the name and title of the individual or individuals at each third party client's place of business responsible for the transaction;
(4) any specific qualifications or attributes of a temporary laborer, requested by each third party client;
(5) copies of all contracts, if any, with the third party client and copies of all invoices for the third party client;
(6) copies of all employment notices provided in accordance with subsection a. of section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill);
(7) the amounts of any deductions to be made from each temporary laborer's compensation by either the third party client or by the temporary labor service agency for the temporary laborer's transportation, food, equipment, withheld income tax, withheld Social Security deductions, and every other deduction;
(8) verification of the actual cost of any equipment or meal charged to a temporary laborer;
(9) the race, ethnicity, and gender of each temporary laborer or applicant, as provided by that laborer or applicant, who requests employment with, or is contracted by, the temporary labor service agency. For each applicant, the temporary labor service agency shall provide the applicant with and retain a copy of a written notice specifying the date, time, and location at which the applicant requested employment, signed by an employee of the temporary labor service agency; and
(10) any additional information required by the commissioner.
b. The temporary labor service agency shall maintain all records under this section for a period of six years from their creation. The records shall be open to inspection by the commissioner during normal business hours. Records described in paragraphs (1), (2), (3), (6), (7), and (8) of subsection a. of this section shall be available for review or copying by that temporary laborer or an authorized representative of the temporary laborer during normal business hours within five days following a written request.
In addition, a temporary labor service agency shall make records related to the number of hours billed to a third party client for that individual temporary laborer's hours of work available for review or copying during normal business hours within five days following a written request. The temporary labor service agency shall make forms, in duplicate, for those requests available to temporary laborers at the dispatch office. The temporary laborer shall be given a copy of the request form. It shall be a violation of this section to make any false, inaccurate, or incomplete entry into, or to delete required information from, any record required by this section.
c. (1) Failure by the third party client to maintain and remit accurate time records to the temporary labor service agency as provided in paragraph (2) of subsection a. of this section shall constitute a violation by a third party client under section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill), unless the third party client has been precluded from submitting those time records for reasons beyond its control. A third party client that violates paragraph (2) of subsection a. of this section shall be subject to a civil penalty not to exceed $500 for each violation found by the commissioner. The penalty shall be collected in a summary proceeding in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
(2) A failure by the third party client to provide time records in accordance with subsection b. of this section shall not be a violation and shall not be the basis for a suit or other action under section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill), against the temporary labor service agency.
(3) Failure of a third party client to remit any information required by this section to a temporary labor service agency shall not be a defense to the temporary labor service agency recordkeeping requirements of this section.
5. (New section) a. A temporary labor service agency or a third party client or a contractor or agent of either shall charge no fee to transport a temporary laborer to or from the designated work site.
b. A temporary labor service agency shall be responsible for the conduct and performance of any person who transports a temporary laborer from the agency to a work site, unless the transporter is:
(1) a public mass transportation system;
(2) a common carrier;
(3) the temporary laborer providing his or her own transportation; or
(4) selected exclusively by and at the sole choice of the temporary laborer for transportation in a vehicle not owned or operated by the temporary labor service agency.
If any temporary labor service agency provides transportation to a temporary laborer or refers a temporary laborer as provided in subsection c. of this section, the temporary labor service agency shall not allow a motor vehicle to be used for the transporting of temporary laborers if the agency knows or should know that the motor vehicle used for the transportation of temporary laborers is unsafe or not equipped as required by P.L. , c. (C. ) (pending before the Legislature as this bill), unless the vehicle is:
(1) the property of a public mass transportation system;
(2) the property of a common carrier;
(3) the temporary laborer's personal vehicle; or
(4) a vehicle of a temporary laborer used to carpool other temporary laborers and which is selected exclusively by and at the sole choice of the temporary laborer for transportation.
c. A temporary labor service agency shall not refer a temporary laborer to any person for transportation to a work site unless that person is:
(1) a public mass transportation system; or
(2) providing the transportation at no fee to the temporary laborer.
Directing the temporary laborer to accept a specific car pool as a condition of work shall be considered a referral by the temporary labor service agency. Any mention or discussion of the cost of a car pool shall be considered a referral by the agency. Informing a temporary laborer of the availability of a car pool driven by another temporary laborer shall not be considered a referral by the agency.
The temporary labor service agency shall obtain, and keep on file, documentation that any provider of transportation to the temporary laborer that the agency makes referrals to or contracts with is in compliance with the requirements of subsections d., e., and f. of this section.
d. Any motor vehicle that is owned or operated by the temporary labor service agency or a third party client, or a contractor or agent of either, or to which a temporary labor service agency refers a temporary laborer, which is used for the transportation of temporary laborers shall comply with minimum insurance requirements set by the State of New Jersey. The driver of the vehicle shall hold a valid license to operate motor vehicles in the correct classification and shall be required to produce the license immediately upon demand by the commissioner or any other person authorized to enforce P.L. , c. (C. ) (pending before the Legislature as this bill). The commissioner shall forward a violation of this subsection to the appropriate law enforcement authority or regulatory agency.
e. A motor vehicle that is owned or operated by the temporary labor service agency or a third party client, or a contractor or agent of either, or to which a temporary labor service agency refers a temporary laborer, which is used for the transportation of temporary laborers shall have a seat and a safety belt for each passenger. The commissioner shall forward a violation of this subsection to the appropriate law enforcement authority or regulatory agency.
f. Unless the temporary laborer requests otherwise, when a temporary laborer has been transported to a work site, the temporary labor service agency or a third party client, or a contractor or agent of either, shall provide transportation back to the point of hire at the end of each work day.
6. (New section) a. At the time of payment of wages, a temporary labor service agency shall provide each temporary laborer with a detailed itemized statement, on the temporary laborer's paycheck stub or on a form approved by the commissioner, listing the following:
(1) the name, address, and telephone number of each third party client at which the temporary laborer worked. If this information is provided on the temporary laborer's paycheck stub, a code for each third party client may be used so long as the required information for each coded third party client is made available to the temporary laborer;
(2) the number of hours worked by the temporary laborer at each third party client each day during the pay period. If the temporary laborer is assigned to work at the same work site of the same third party client for multiple days in the same work week, the temporary labor service agency may record a summary of hours worked at that third party client's worksite so long as the first and last day of that work week are identified as well;
(3) the rate of payment for each hour worked, including any premium rate or bonus. Overtime pay shall be paid in accordance with the provisions of subsection b. of section 5 of P.L.1966, c.113 (C.34:11-56a4);
(4) the total pay period earnings;
(5) the amount of each deduction made from the temporary laborer's compensation made either by the third party client or by the temporary labor service agency, and the purpose for which each deduction was made, including for the temporary laborer's food, equipment, withheld income tax, withheld Social Security deductions, and every other deduction; the current maximum amount of a placement fee which the temporary labor service agency may charge to a third party client to directly hire the temporary laborer pursuant to subsection a. of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill); and
(6) any additional information required by the commissioner.
For each temporary laborer who is contracted to work a single day, the third party client shall, at the end of the work day, provide such temporary laborer with a Work Verification Form, approved by the commissioner, which shall contain the date, the temporary laborer's name, the work location, and the hours worked on that day. Any third party client who violates this section shall be subject to a civil penalty not to exceed $500 for each violation found by the commissioner. The maximum civil penalty shall increase to $2,500 for a second or subsequent violation. Each violation of paragraph 1 of this subsection for each temporary laborer and for each day the violation continues shall constitute a separate and distinct violation. That penalty shall be collected by the commissioner in a summary proceeding in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
b. A temporary labor service agency shall provide each worker an annual earnings summary within a reasonable time after the preceding calendar year, but in no case later than February 1. A temporary labor service agency shall, at the time of each wage payment, give notice to temporary laborers of the availability of the annual earnings summary or post such a notice in a conspicuous place in the public reception area.
c. At the request of a temporary laborer, a temporary labor service agency shall hold the daily wages of the temporary laborer and make either weekly, bi-weekly, or semi-monthly payments. The wages shall be paid in a single check, or, at the temporary laborer's sole option, by direct deposit or other manner approved by the commissioner, representing the wages earned during the period, either weekly, bi-weekly, or semi-monthly, designated by the temporary laborer in accordance with P.L.1965, c.173 (C.34:11-4.1 et seq.).
Vouchers or any other method of payment which are not negotiable shall be prohibited as a method of payment of wages. Temporary labor service agencies that make daily wage payments shall provide written notification to all temporary laborers of the right to request weekly, bi-weekly, or semi-monthly checks. The temporary labor service agency may provide this notice by conspicuously posting the notice at the location where the wages are received by the temporary laborers.
d. No temporary labor service agency shall charge any temporary laborer for cashing a check issued by the agency for wages earned by a temporary laborer who performed work through that agency. No temporary labor service agency or third party client shall charge any temporary laborer for the expense of conducting any consumer report, as that term is defined in the "Fair Credit Reporting Act," (15 U.S.C. s.1681 et seq.), any criminal background check of any kind, or any drug test of any kind.
e. Temporary laborers shall be paid no less than the wage rate stated in the notice as provided in section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), for all the work performed on behalf of the third party client in addition to the work listed in the written description.
f. The total amount deducted for meals and equipment shall not cause a temporary laborer's hourly wage to fall below the State or federal minimum wage. However, a temporary labor service agency may deduct the actual market value of reusable equipment provided to the temporary laborer by the temporary labor service agency which the temporary laborer fails to return, if the temporary laborer provides a written authorization for that deduction at the time the deduction is made.
g. A temporary laborer who is contracted by a temporary labor service agency to work at a third party client's worksite but is not utilized by the third party client shall be paid by the temporary labor service agency for a minimum of four hours of pay at the agreed upon rate of pay. However, in the event the temporary labor service agency contracts the temporary laborer to work at another location during the same shift, the temporary laborer shall be paid by the temporary labor service agency for a minimum of two hours of pay at the agreed upon rate of pay.
h. A third party client is required to reimburse a temporary labor service agency wages and related payroll taxes for services performed by the temporary laborer for the third party client according to payment terms outlined on invoices, service agreements, or stated terms provided by the temporary labor service agency. A third party client who fails to comply with this subsection is subject to the penalties provided in section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill).
The commissioner shall review a complaint filed by a licensed temporary labor service agency against a third party client. The commissioner shall review the payroll and accounting records of the temporary labor service agency and the third party client for the period in which the violation of P.L. , c. (C. ) (pending before the Legislature as this bill) is alleged to have occurred to determine if wages and payroll taxes have been paid to the temporary labor service agency and that the temporary laborer has been paid the wages owed him or her.
i. Any temporary labor service agency that violates this section shall be subject to a civil penalty not to exceed $500 for each violation found by the commissioner. That penalty shall be collected by the commissioner in a summary proceeding in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
7. (New section) a. (1) No temporary labor service agency shall restrict the right of a temporary laborer to accept a permanent position with a third party client to whom the temporary laborer has been referred for work, restrict the right of a third party client to offer employment to a temporary laborer, or restrict the right of a temporary laborer to accept a permanent position for any other employment. A temporary labor service agency may charge a placement fee to a third party client for employing a temporary laborer for whom a contract for work was effected by the temporary labor service agency not to exceed the equivalent of the total daily commission rate the temporary labor service agency would have received over a 60-day period, reduced by the equivalent of the daily commission rate the temporary labor service agency would have received for each day the temporary laborer has performed work for the temporary labor service agency in the preceding 12 months.
(2) Notwithstanding the provisions of paragraph (1) of this subsection to the contrary, placement of a temporary laborer who is contracted by a temporary labor service agency to provide skilled labor shall not be subject to any placement fee cap. For purposes of this section, temporary labor shall be considered "skilled labor" if the temporary labor service agency performs an advanced application process, a screening process, which may include processes such as advanced testing, and a job interview.
(3) Any temporary labor service agency which charges a placement fee to a third party client for employing a temporary laborer shall include on the Wage Payment and Notice form of each affected temporary laborer the maximum amount of a fee that shall be charged to a third party client by the temporary labor service agency, and the total amount of actual charges to the third party client for the temporary laborer during each pay period compared to the total compensation cost for the temporary laborer, including costs of any benefits provided. Failure to provide the required information shall constitute a separate violation for each day the temporary labor service agency fails to provide the required information. No fee provided for under this section shall be assessed or collected by the temporary labor service agency when the temporary laborer is offered permanent work following the suspension or revocation of the temporary labor service agency's registration by the commissioner.
b. Each year, at the time of registration with the commissioner as required by section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill), each temporary labor service agency shall submit to the commissioner, on a form created by the commissioner, the number of temporary laborers the agency has placed in a permanent position with a third party client in the preceding 12 months as well as the percentage those permanent placements represent of the total number of temporary laborers contracted by the temporary labor service agency during the same period. Each day that the temporary labor service agency fails to fully comply with the requirements of this subsection shall constitute a separate notice violation.
c. Any temporary laborer assigned to work at a third party client shall not be paid less than the same average rate of pay and equivalent benefits as a permanent employee of the third party client performing the same or substantially similar work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. Each violation of this subsection for each affected temporary laborer shall constitute a separate violation under section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill).
d. Any temporary labor service agency that violates this section shall be subject to a civil penalty not to exceed $500 for each violation found by the commissioner. That penalty shall be collected by the commissioner in a summary proceeding in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
8. (New section) a. A temporary labor service agency which is located, operates, or transacts business within this State shall register with the commissioner in accordance with rules adopted by the commissioner for temporary labor service agencies and shall be subject to P.L. , c. (C. ) (pending before the Legislature as this bill). Each temporary labor service agency shall provide proof of an employer account number issued by the commissioner for the payment of unemployment insurance contributions as required under the "unemployment compensation law," R.S.43:21-1 et seq., and proof of valid workers' compensation insurance in effect at the time of registration covering all of its employees. If, at any time, a temporary labor service agency's workers' compensation insurance coverage lapses, the temporary labor service agency shall have an affirmative duty to report the lapse of coverage to the commissioner and the temporary labor service agency's registration shall be suspended until the agency's workers' compensation insurance is reinstated.
The commissioner shall assess each temporary labor service agency a non-refundable registration fee not exceeding $2,000 per year per agency and a non-refundable fee not to exceed $750 for each branch office or other location where the temporary labor service agency regularly contracts with temporary laborers for services. The fee shall be paid by check or money order, and the commissioner may not refuse to accept a check on the basis that it is not a certified check or a cashier's check. The commissioner may charge an additional fee to be paid by a temporary labor service agency if the agency, or any person on the agency's behalf, issues or delivers a check to the commissioner that is not honored by the financial institution upon which it is drawn. The commissioner shall adopt rules for violation hearings and penalties for violations of P.L. , c. (C. ) (pending before the Legislature as this bill).
At the time of registration with the commissioner each year, a temporary labor service agency shall provide the commissioner with a report containing the information identified in paragraph (9) of subsection a. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill), broken down by branch office, in the aggregate for all temporary laborers assigned within New Jersey in the prior year to be submitted on a form created by the commissioner.
b. It is a violation of P.L. , c. (C. ) (pending before the Legislature as this bill) to operate a temporary labor service agency without being registered with the commissioner in accordance with subsection a. of this section. The commissioner shall create and maintain on the Internet website of the Department of Labor and Workforce Development, accessible to the public:
(1) a list of all registered temporary labor service agencies in the State whose registration is in good standing;
(2) a list of temporary labor service agencies in the State whose registration has been suspended, including the reason for the suspension, the date that the suspension was initiated, and the date, if known, that the suspension is to be lifted; and
(3) a list of temporary labor service agencies in the State whose registration has been revoked, including the reason for the revocation and the date that the registration was revoked.
The commissioner shall assess a penalty against any temporary labor service agency that fails to register with the commissioner in accordance with P.L. , c. (C. ) (pending before the Legislature as this bill) or any rules adopted under P.L. , c. (C. ) (pending before the Legislature as this bill) of $500 for each violation. Each day during which a person operates as a temporary labor service agency without being registered as a temporary labor service agency with the commissioner shall be a separate and distinct violation of P.L. , c. (C. ) (pending before the Legislature as this bill). That penalty shall be collected by the commissioner in a summary proceeding in accordance with the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
A temporary labor service agency shall obtain a surety bond issued by a surety company admitted to do business in this State. The principal sum of the bond shall not be less than $200,000. A copy of the bond shall be filed with the commissioner.
The bond required by this section shall be in favor of, and payable to, the people of the State of New Jersey, and shall be for the benefit of any temporary laborer damaged by the temporary labor service agency's failure to pay wages, interest on wages, or fringe benefits, or damaged by violation of this section.
Thirty days prior to the cancellation or termination of any surety bond required by this section, the surety shall send written notice to both the temporary labor service agency and the commissioner identifying the bond and the date of the cancellation or termination.
A temporary labor service agency shall not conduct any business until it obtains a new surety bond and files a copy of it with the commissioner.
This subsection shall not apply to a temporary labor service agency whose temporary laborers are covered by a valid collective bargaining agreement, if the agreement expressly provides for:
(1) Wages;
(2) Hours of work;
(3) Working conditions;
(4) An expeditious process to resolve disputes concerning nonpayment of wages;
(5) Documentation of its current workers' compensation insurance policy in effect for the temporary laborers; and
(6) Compliance with all provisions of this section.
c. The principal executive officer of a temporary labor service agency shall certify under oath at the time of registration of the temporary labor service agency each year on a form created by the commissioner that:
(1) the signing officer has reviewed the registration form of the temporary labor service agency and confirmed the information is true and accurate to the best of his or her knowledge;
(2) the signing officer has reviewed the recordkeeping practices of the temporary labor service agency and confirmed that the recordkeeping practices comply with the requirements of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) to the best of his or her knowledge;
(3) the signing officer has reviewed the temporary labor service agency's filing as required by subsection b. of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill), related to the placement of temporary laborers in permanent positions with third party clients and has confirmed that those practices comply with the requirements of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill) to the best of his or her knowledge;
(4) the signing officer has reviewed the temporary labor service agency's practices related to the transportation of temporary laborers and has confirmed that those practices comply with the requirements of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) to the best of his or her knowledge;
(5) the signing officer has reviewed and is responsible for the surety bond posted by the temporary labor service agency and its renewals; and
(6) the signing officer:
(a) is responsible for establishing and maintaining internal controls to comply with the recordkeeping requirements; and
(b) has evaluated the effectiveness of the internal controls.
d. An applicant is not eligible to register to operate a temporary labor service agency under P.L. , c. (C. ) (pending before the Legislature as this bill) if the applicant or any of its officers, directors, partners, or managers or any owner having 25 percent or greater beneficial interest:
(1) has been involved, as owner, officer, director, partner, or manager, of a temporary labor service agency the registration of which has been revoked or suspended without being reinstated within the five years immediately preceding the filing of the application; or
(2) is under the age of 18.
e. Every temporary labor service agency shall post and keep posted at each location, in a position easily accessible to all employees, notices as supplied and required by the commissioner containing a copy or summary of the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), and a notice which informs the public of a toll-free telephone number operated by the commissioner for temporary laborers and the public to file wage dispute complaints and other alleged violations by temporary labor service agencies. The notices shall be in English or any other language generally understood in the locale of the temporary labor service agency.
f. No temporary labor service agency shall be permitted to register to operate in New Jersey until it has complied with the requirements of this section.
9. (New section) a. It is a violation of P.L. , c. (C. ) (pending before the Legislature as this bill) for a third party client to enter into a contract for the employment of a temporary laborer with a temporary labor service agency not registered under section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill). A third party client shall verify a temporary labor service agency's status with the commissioner before entering into a contract with an agency, and on March 1 and September 1 of each year.
A temporary labor service agency shall provide each of its third party clients with proof of valid registration issued by the commissioner at the time of entering into a contract. A temporary labor service agency shall be required to notify, both by telephone and in writing, each temporary laborer it employs and each third party client with whom it has a contract within 24 hours of any denial, suspension, or revocation of its registration by the commissioner. All contracts between any temporary labor service agency and any third party client shall be considered null and void from the date any denial, suspension, or revocation of registration becomes effective and until such time as the temporary labor service agency becomes registered and considered in good standing by the commissioner as provided in section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill).
Upon request, the commissioner shall provide to a third party client a list of entities registered as temporary labor service agencies. The commissioner shall provide on the Internet website of the Department of Labor and Workforce Development a list of entities registered as temporary labor service agencies. A third party client may rely on information provided by the commissioner or maintained on the commissioner's website pursuant to section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill), and shall be held harmless if such information maintained or provided by the commissioner was inaccurate. Any third party client that violates this section shall be subject to a civil penalty not to exceed $500. Each day during which a third party client contracts with a person operating as a temporary labor service agency but not registered as a temporary labor service agency under section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill), shall constitute a separate and distinct offense.
b. If a third party client leases or contracts with a temporary labor service agency for the services of a temporary laborer, the third party client shall be, with the temporary labor service agency, jointly and severally responsible for:
(1) the payment of wages under the "New Jersey State Wage and Hour Law," P.L.1966, c.113 (C.34:11-56a et seq.), P.L.1965, c.173 (C.34:11-4.1 et seq.), R.S.34:11-57, and P.L.1952, c.9 (C.34:11-56.1 et seq.); and
(2) any violation of P.L. , c. (C. ) (pending before the Legislature as this bill).
10. (New section) a. It is a violation of P.L. , c. (C. ) (pending before the Legislature as this bill) for a temporary labor service agency or third party client, or any agent of a temporary labor service agency or third party client, to retaliate through discharge or in any other manner against any temporary laborer for exercising any rights granted under P.L. , c. (C. ) (pending before the Legislature as this bill). The termination or disciplinary action by a temporary labor service agency against a temporary laborer within 90 days of the person's exercise of rights protected under P.L. , c. (C. ) (pending before the Legislature as this bill) shall raise a rebuttable presumption of having done so in retaliation for the exercise of those rights. Such retaliation shall subject a temporary labor service agency or third party client, or both, to civil penalties pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) or a private cause of action.
b. It is a violation of P.L. , c. (C. ) (pending before the Legislature as this bill) for a temporary labor service agency or third party client to retaliate against a temporary laborer for:
(1) making a complaint to a temporary labor service agency, to a third party client, to a co-worker, to a community organization, before a public hearing, or to a State or federal agency that rights guaranteed under P.L. , c. (C. ) (pending before the Legislature as this bill) have been violated;
(2) instituting any proceeding under or related to P.L. , c. (C. ) (pending before the Legislature as this bill); or
(3) testifying or preparing to testify in an investigation or proceeding under P.L. , c. (C. ) (pending before the Legislature as this bill).
11. (New section) a. A person aggrieved by a violation of P.L. , c. (C. ) (pending before the Legislature as this bill) by a temporary labor service agency or a third party client may institute a civil action in the Superior Court, in the county where the alleged offense occurred or where any temporary laborer who is party to the action resides, without regard to exhaustion of any alternative administrative remedies provided in P.L. , c. (C. ) (pending before the Legislature as this bill).
A temporary labor service agency aggrieved by a violation of P.L. , c. (C. ) (pending before the Legislature as this bill) by a third party client may institute a civil action in the Superior Court, in the county where the alleged offense occurred or where the temporary labor service agency which is party to the action is located.
An action may be brought by one or more temporary laborers employed by the temporary labor service agency for and on behalf of themselves and other temporary laborers similarly situated against the temporary labor service agency or a third party client.
Notwithstanding any other relief provided under any other provision of law, a temporary laborer whose rights have been violated under P.L. , c. (C. ) (pending before the Legislature as this bill) by a temporary labor service agency or a third party client or a temporary labor service agency whose rights have been violated under P.L. , c. (C. ) (pending before the Legislature as this bill) by a third party client is entitled to the following relief:
(1) in the case of any violation of subsection a. of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill) relating to any unlawful restrictions by a temporary labor service agency on the right of a temporary laborer to accept a permanent position for any other employment or the right of a third party client to offer such employment to a temporary laborer, $50 for each temporary laborer affected by the temporary labor service agency's policy, practice, or agreement and for each day that policy, practice, or agreement is in effect, plus actual damages;
(2) in the case of unlawful retaliation, the greater of all legal or equitable relief as may be appropriate or liquidated damages equal to $20,000 per incident of retaliation, at the selection of the aggrieved temporary laborer, and reinstatement, if appropriate; and
(3) attorney's fees and costs.
b. The right of an aggrieved person to bring an action under this section terminates upon the passing of six years from the final date of employment by the temporary labor service agency or the third party client or upon the passing of six years from the date of termination of the contract between the temporary labor service agency and the third party client.
12. (New section) a. The commissioner shall have the authority to deny, revoke, or refuse to renew any registration issued under section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill).
b. The commissioner shall notify a temporary labor service agency in writing by mail of the denial, revocation of, or refusal to renew the registration and the reason for the denial, revocation, or refusal. The commissioner may deny, revoke, or refuse to renew any registration issued under section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill) on the following grounds:
(1) The temporary labor service agency is in default of payment of the registration fee required under section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill), fails to obtain or terminates the surety bond required under section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill), or otherwise fails to comply with the requirements under section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill);
(2) The registration required under section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill) was procured by fraud or false representation of fact;
(3) The temporary labor service agency is subject to a court order entering final judgment for violations of P.L. , c. (C. ) (pending before the Legislature as this bill) or for violations of P.L.1966, c.113 (C.34:11-56a et seq.) and the judgment was not satisfied within 30 days of either:
(a) the expiration of the time for filing an appeal from the final judgment order; or
(b) if a timely appeal was made, the date of the final resolution of that appeal and any subsequent appeals resulting in final judicial affirmation of the findings of a violation;
(4) The temporary labor service agency has failed to comply with the terms of an administrative penalty or final order, within 30 days of issuance of that penalty or order, issued by the commissioner pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) or P.L.1966, c.113 (C.34:11-56a et seq.) for which all appeal rights have been exhausted; or
(5) The temporary labor service agency has been determined through a separate enforcement process to be operating in violation of any law.
13. Section 1 of P.L.1989, c.331 (C.34:8-43) is amended to read as follows:
1. As used in [this act] P.L.1989, c.331 (C.34:8-43 et al.):
"Accepting employment" means that a job seeker has entered into an agreement with an employer which includes:
(1) The terms and conditions of employment;
(2) The salary or wages and any benefits to be paid to the job seeker as compensation for employment; and
(3) The date, time and place employment will commence.
"A career consulting or outplacement organization" means any person, required to be registered under section 24 of [this act] P.L.1989, c.331 (C.34:8-65), providing or rendering services, with or without related products, in connection with advice, instruction, analysis, recommendation or assistance concerning past, present, or future employment or compensation for an individual's time, labor or effort.
"Agent" means any individual who performs any function or activity for or on behalf of any person, the purpose of which is to provide services or products to individuals seeking employment, career guidance or counseling, or employment related services or products.
"Applicant" means any person applying for licensing or registration under [this act] P.L.1989, c.331 (C.34:8-43 et al.).
"Attorney General" means the Attorney General of this State or a designee.
"Baby sitter" means and includes any individual under 16 years of age, other than a registered nurse or a licensed nurse, entrusted temporarily with the care of children during the absence of their parents, guardians, or individuals standing in loco parentis to them. This definition shall not include persons regularly employed by agencies, or institutions operated by or under the control or supervision of this State, or any of its political subdivisions, nor any child care facilities operated for the care of children when the facilities are similarly controlled or supervised.
"Booking agency" means any person who procures, offers, promises, or attempts to procure employment for performing artists, or athletes, not under the jurisdiction of the Athletic Control Board, and who collects a fee for providing those services.
"Bureau" means the Bureau of Employment and Personnel Services in the Division of Consumer Affairs within the Department of Law and Public Safety created pursuant to section 2 of [this act] P.L.1989, c.331 (C.52:17B-139.4).
"Career counseling service" means any business that, through its agents or otherwise, procures or represents itself as procuring employment or employment assistance or advertises in any manner the following services for a fee: career counseling; vocational guidance; aptitude, achievement or vocational testing; executive consulting; personnel consulting; career management, evaluation, or planning; the development of resumes and other promotional materials relating to the preparation for employment; or referral services relating to employment or employment qualifications. A career counseling service shall be licensed as an employment agency pursuant to the provisions of [this act] P.L.1989, c.331 (C.34:8-43 et al.). A career counseling service shall not include career consulting or outplacement organizations required to be registered under section 24 of [this act] P.L.1989, c.331 (C.34:8-65).
"Chief" means the Chief of the Bureau of Employment and Personnel Services.
"Consulting firm" means any person required to be registered under section 23 of [this act] P.L.1989, c.331 (C.34:8-64) that:
(1) Identifies, appraises, refers or recommends individuals to be considered for employment by the employer; and
(2) Is compensated for services solely by payments from the employer and is not, in any instance, compensated, directly or indirectly, by an individual who is identified, appraised, referred or recommended.
"Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety, or his designee.
"Employer" means a person seeking to obtain individuals to perform services, tasks, or labor for which a salary, wage, or other compensation or benefits are to be paid.
"Employment agency" means any person who, for a fee, charge or commission:
(1) Procures or obtains, or offers, promises or attempts to procure, obtain, or assist in procuring or obtaining employment for a job seeker or employees for an employer; or
(2) Supplies job seekers to employers seeking employees on a part-time or temporary assignment basis who has not filed notification with the Attorney General pursuant to the provisions of section [1] 14 of P.L.1981, c.1 (C.56:8-1.1); or
(3) Procures, obtains, offers, promises or attempts to procure or obtain employment or engagements for actors, actresses, performing artists, vocalists, musicians or models; or
(4) Acts as a placement firm, career counseling service, or resume service; or
(5) Acts as a nurses' registry.
"Employment agency" does not mean "temporary labor service agency" as that term is defined and used in sections 1 through 12 of P.L. , c. (C. ) (pending before the Legislature as this bill).
The director shall have the authority to determine, from time to time, that a particular employment agency or career-related service or product, not otherwise expressly subject to the provisions of [this act] P.L.1989, c.331 (C.34:8-43 et al.), is subject to whichever requirements of [this act he] P.L.1989, c.331 (C.34:8-43 et al.) the director deems appropriate.
"Fee, charge or commission" means any payment of money, or promise to pay money to a person in consideration for performance of any service for which licensure or registration is required by [this act] P.L.1989, c.331 (C.34:8-43 et al.), or the excess of money received by a person furnishing employment or job seekers over what he has paid for transportation, transfer of baggage or lodging for a job seeker. "Fee, charge or commission" shall also include the difference between the amount of money received by any person who either furnishes job seekers or performers for any entertainment, exhibition or performance, or who furnishes baby sitters for any occasion, and the amount paid by the person to the job seekers, performers or baby sitters.
"Job listing service" means any person required to be registered under section 25 of [this act] P.L.1989, c.331 (C.34:8-66) who, by advertisement or other means, offers to provide job seekers with a list of employers, a list of job openings or a similar publication, or prepares resumes or lists of applicants for distribution to potential employers, where a fee or other valuable consideration is exacted or attempted to be collected, either directly or indirectly.
"Job seeker" means any individual seeking employment, career guidance or counseling or employment related services or products.
"Job seeker contingent liability" means a provision in an agreement between an employment agency and a job seeker whereby the job seeker may become liable, in whole or in part, to pay a fee, charge or commission of any amount, directly or indirectly, on account of any service rendered by the employment agency.
"Just cause for voluntary termination of employment by a job seeker" means and includes, but is not limited to, cases in which material misrepresentations of the terms or conditions of employment have been relied upon by a job seeker who would not have accepted the employment if the grounds for termination were known before acceptance of the employment.
"License" means a license issued by the director to any person to:
(1) Carry on the business of an employment agency; and
(2) Perform, as an agent of the agency, any of the functions related to the operation of the agency.
"Performing artist" means a model, musical, theatrical or other entertainment performer employed or engaged individually or in a group.
"Person" means any natural person or legal representative, partnership, corporation, company, trust, business entity or association, and any agent, employee, salesperson, partner, officer, director, member, stockholder, associate, trustee or cestuis que trustent thereof.
"Prepaid computer job matching service" means any person required to be registered under section 25 of [this act] P.L.1989, c.331 (C.34:8-66) who is engaged in the business of matching job seekers with employment opportunities, pursuant to an arrangement under which the job seeker is required to pay a fee in advance of, or contemporaneously with, the supplying of the matching, but which does not otherwise involve services for the procurement of employment by the person conducting the service.
"Primary location" means an address used for 90 or more calendar days by a person for the conduct of an activity regulated under [this act] P.L.1989, c.331 (C.34:8-43 et al.).
"Principal owner" means any person who, directly or indirectly, holds a beneficial interest or ownership in an applicant or who has the ability to control an applicant.
"Temporary employment" means employment in which the duration is fixed as some definite agreed period of time or by the occurrence of some specified event, either of which shall be clearly stated to all parties at the time of referral to the employment.
"Temporary help service firm" means any person who operates a business which consists of employing individuals directly or indirectly for the purpose of assigning the employed individuals to assist the firm's customers in the handling of the customers' temporary, excess or special work loads, and who, in addition to the payment of wages or salaries to the employed individuals, pays federal social security taxes and State and federal unemployment insurance; carries worker's compensation insurance as required by State law; and sustains responsibility for the actions of the employed individuals while they render services to the firm's customers. A temporary help service firm is required to comply with the provisions of P.L.1960, c.39 (C.56:8-1 et seq.), and does not include "temporary labor service agency" as defined and used in sections 1 through 12 of P.L. , c. (C. ) (pending before the Legislature as this bill).
(cf: P.L.1989, c.331, s.1)
14. This act shall take
effect immediately.
STATEMENT
This bill provides certain protections to temporary laborers and imposes requirements on temporary labor service agencies and third party clients of those agencies. Additionally, the bill provides that the Department of Labor and Workforce Development will be responsible for the oversight of temporary labor service agencies and third party clients. Specifically, under the bill, a temporary labor service agency is required to provide a statement to temporary laborers with the following information:
(1) the name of the temporary laborer;
(2) the name, address and telephone number of: (a) the temporary labor service agency, or the contact information of the agency agent facilitating the placement; (b) its workers' compensation carrier; (c) the worksite employer or third party client; and (d) the Department of Labor and Workforce Development;
(3) the name and nature of the work to be performed;
(4) the wages offered;
(5) the name and address of the assigned worksite of each temporary laborer;
(6) the terms of transportation offered to the temporary laborer;
(7) a description of the position and whether it shall require any special clothing, protective equipment and training and what will be provided by the agency or the third party client, and any costs charged to the employee for supplies or training;
(8) whether a meal or equipment is provided by the temporary agency or the third party client, and the cost of the meal and equipment;
(9) the schedule for multi-day assignments; and
(10) the length of the assignment.
Additionally, under the bill, a temporary labor service agency is required to keep certain records relating to its transactions with temporary laborers, and to maintain the records for six years from their creation. The Commissioner of Labor and Workforce Development ("commissioner") may inspect the records during normal business hours.
Moreover, the bill provides that a temporary labor service agency or a third party client is prohibited from charging a fee to transport a temporary laborer to or from the designated work site, and that a temporary labor service agency is responsible for the performance of any person who transports a temporary laborer from the agency to a work site, unless the transporter is:
(1) a public mass transportation system;
(2) a common carrier;
(3) the temporary laborer providing his or her own transportation; or
(4) selected exclusively by the temporary laborer for transportation in a vehicle not owned or operated by the temporary labor service agency.
The bill also requires that, at the time of payment of wages, a temporary labor service agency is required to provide each temporary laborer with a detailed itemized statement on the temporary laborer's paycheck stub.
Further, under the bill, a temporary labor service agency is prohibited from restricting the right of a temporary laborer to accept a permanent position with a third party client to whom the temporary laborer has been referred for work, restricting the right of a temporary laborer to accept a permanent position with another employer, or restricting the right of that third party client to offer employment to a temporary laborer.
In addition, the bill provides that a temporary labor service agency operating in the State is required to register with the commissioner and is required to provide proof of an employer account number for the payment of unemployment insurance contributions and valid workers' compensation insurance. Under the bill, the commissioner has the authority to deny, revoke, or refuse to renew any registration for certain specified reasons.
Moreover, under the bill, a third party client is prohibited from entering into a contract for the employment of temporary laborers with any temporary labor service agency that is not registered. The bill also imposes a duty on the third party client to verify a temporary labor service agency's status with the commissioner.
The bill also makes it a violation for a temporary labor service agency or third party client to retaliate through discharge or in any other manner against any temporary laborer for exercising any rights granted under the bill. Under the bill, the termination or disciplinary action by a temporary labor service agency against a temporary laborer within 90 days of the person's exercise of rights under the bill raises a rebuttable presumption of having done so in retaliation for the exercise of those rights.
In addition, a person aggrieved by a violation under the bill by a temporary labor service agency or a third party client may institute a civil action in the Superior Court, and a temporary labor service agency aggrieved by a violation under the bill by a third party client may institute a civil action in the Superior Court. The bill also provides that actions may be brought by one or more temporary laborers for and on behalf of themselves and other temporary laborers similarly situated.
