Temp workers prevail after judge denies staffing agencies a ‘second bite at the apple’

Temporary workers and advocates rallied outside the Statehouse in Trenton on Dec. 19, 2022, to urge support for a bill that would provide protections to temporary workers. (Courtesy of Make the Road New Jersey)

A federal judge has denied another effort by staffing agencies to stop the enforcement of a landmark state law requiring them to pay temporary workers the same in benefits and pay as full-time staff. 

After more than a year of legal battles that failed to stop the law from going into effect, temporary staffing agencies filed another motion this past spring, taking a “proverbial second bite at the apple,” U.S. District Court Judge Christine O’Hearn wrote in a Friday ruling. 

Staffing agencies argue the law, which first went into effect in May 2023, was unconstitutional. The court denied their bid to halt it, and the Third Circuit Court of Appeals affirmed that decision. But the agencies filed another motion last May with a new claim. 

Granting a preliminary injunction now would “needlessly disrupt the status quo,” since the law has been in effect for over a year, O’Hearn said. The Department of Labor is finalizing regulations, and nonprofit groups have begun training affected workers on the law’s provisions — all of which would come to an “abrupt halt,” temporarily changing the staffing landscape in New Jersey for the third time in a year, the judge wrote.

Many workers and families depending on their increased wages and benefits have already made important life decisions, like buying a car or enrolling a child in school, she notes. Enforcing an injunction would “undoubtedly cause substantial harm” to workers, and not serve the public interest, the ruling states. 

Immigrant advocates celebrated Friday’s ruling as one that “certainly seems to be the most embarrassing loss for the staffing industry lobby to date.”

“Being required to actually follow the law may be a bitter pill for staffing agencies, particularly, to swallow, but that’s reality for the rest of us, and is for them now too. It’s time to drop the schemes and games and accept that the Temp Workers’ Bill of Rights is not going away,” said Garrett O’Connor of Make the Road New Jersey, a group that fought for years to pass the law. 

The law was signed by Gov. Phil Murphy in February 2023. It’s intended to protect an estimated 127,000 temporary workers, some of whom work at the same job site for years, by improving working conditions, requiring equal pay and benefits as full-time workers with similar responsibilities, and mandating companies to provide basic work information in the worker’s native language. All provisions took effect August 2023.

Reynalda Cruz celebrates after the Senate approved a bill to expand job protections for temporary workers on Feb. 2, 2023. (Hal Brown for New Jersey Monitor)

The New Jersey Staffing Association, American Staffing Association, and New Jersey Business and Industry Association claimed that the new law would drive companies out of business and agencies would be forced to move out of New Jersey, harming the state’s labor force. They lobbied aggressively against the bill for years before ultimately launching a legal battle. 

But the detrimental impacts the groups warned about haven’t occurred to the extent they predicted, O’Hearn said, leaving the court with “some skepticism.” 

The staffing agencies’ latest claim that the law is preempted by ERISA, a federal employment retirement law, came too late, O’Hearn said. That law has been consistently used to challenge state statutes since it went into effect in 1975, and the staffing agencies should have asserted this claim before the equal benefits provision went into effect in August 2023, the judge wrote.

Because the groups waited to request injunctive relief, it diminishes their argument that they will continue to be irreparably harmed if the equal benefits provision remains in effect, the judge wrote. 

An injunction, O’Hearn added, would bring up new questions — does pay revert back to what it was prior to the law, and would benefits suddenly be rescinded? 

Because of the injunction’s impact on the status quo and lack of public interest, the groups haven’t shown irreparable harm, O’Hearn said. The plaintiffs are also unlikely to succeed on the merits that would outweigh public interest, she added. 

The ruling comes after a federal appeals court declined in July to halt enforcement of the law’s wage and benefit provisions. 

Adriana Alvarez, a temp worker in the logistics industry, said she’s glad to see the judge side with workers who have long endured late or docked pay, spent their own money for mandatory transportation to work sites, and been baffled by vague scheduling — all of which is illegal now under the new law. 

“The staffing agencies are probably so used to getting away with unjust and unfair treatment of its workers that they expected a judge to take their side and agree to reward their negligence and lack of preparation,” she said in a statement. “I’m glad to see a judge is setting a bar for the staffing agencies. They’re definitely not used to it.”