The Temporary Workers’ Bill of Rights (TWBOR) became law in New Jersey in February 2023. The Legislature determined that more than 100,000 temporary workers employed by staffing agencies earned substantially less than direct employees performing the same work. It also found that temporary workers are often at risk of abuse or exploitation and that temporary workers do not have the full range of protections offered by New Jersey employment laws. The TWBOR addresses these concerns. The bill took effect on August 5, 2023, after a federal court rejected a challenge by several staffing agency trade organizations. The Third Circuit Court of Appeals affirmed the court’s ruling in July 2024. A month later, the district court denied another motion from the plaintiffs seeking an injunction against the TWBOR. Whether additional appeals will follow remains to be seen.
The TWBOR provides several important legal protections for temporary workers. The law mainly applies to staffing agencies that employ temporary workers and make them available to client companies. Staffing agencies must pay temporary workers at least the same amount that their clients pay their employees for similar work. They must also provide equal benefits. They may not retaliate against workers who exercise the rights the TWBOR guarantees. They must provide workers with written notice for every new assignment that provides information like the work they will be performing, the length of the assignment, and the wage rate they will receive.
A group of trade associations that represent New Jersey staffing agencies filed suit in May 2023 seeking to prevent the TWBOR from taking effect. They sought a preliminary injunction that summer. A federal judge denied their request, finding that they had failed to establish one of the elements required for a preliminary injunction: that they would be likely to succeed on the merits of their claims. The court rejected other arguments from the plaintiffs as well, including a claim that the TWBOR discriminated against out-of-state businesses in violation of the Dormant Commerce Clause and that the law was void because of vagueness. It held that protecting temporary workers is a valid state interest and that the TWBOR was reasonably related to this interest.
The plaintiffs appealed to the Third Circuit. That court affirmed the district court’s ruling in July 2024. It agreed with the district court’s finding regarding the likelihood that the plaintiffs would prevail on the merits at trial, the Dormant Commerce Clause question, and other issues. The court’s ruling did not remand the case to the lower court. The plaintiffs’ next course of action would be an appeal to the U.S. Supreme Court.
While the above appeal was pending in the Third Circuit, the plaintiffs filed an amended complaint in the district court. They added a claim that the federal Employee Retirement Income Security Act (ERISA) preempts the TWBOR’s “equal benefits” requirement. In June 2024, they filed a motion seeking a preliminary injunction on federal preemption grounds. This generally means that a federal statute takes precedence — or preempts — a conflicting state law.
The district court denied this motion on August 30, 2024, finding an “inexcusable delay” in bringing the preemption claim more than a year after filing the lawsuit. This delay, the court held, belied the plaintiffs’ claim of “irreparable harm” without an injunction.
The knowledgeable and skilled employment lawyers at the Resnick Law Group advocate for New Jersey and New York employees who have experienced unlawful workplace practices. Please contact us today at 973-781-1204, at 646-867-7997, or online to schedule a confidential consultation to see how we can help you.