Summary of NY AB 8219: Temporary Workers’ Bill of Rights

For full text of the bill, click here.

NY AB 8219 would regulate temporary agencies and the employers who utilize them.  The bill strengthens the rights of temporary workers by providing amongst other things, notices and disclosures any work site hazards on a job placement, banning fees for equipment required by the job, banning check cashing fees, regulating transportation fees, requiring annual earnings statements.  Below is a complete summary of NY AB 8219.

Definitions
“Client” or “client company” means any person for whom a temporary services company procures, or attempts to procure a temporary worker.  Labor organizations are not included in this definition.

“Person” means any individual, sole proprietorship, company, limited liability company, joint venture, society, association, corporation, manager, contractor, subcontractor, partnership, bureau, service, office or the agent or employee of any of the forgoing.

A “Temporary Services Company” is any person who directly or indirectly, on either a compensated or uncompensated basis regularly procures or regularly attempts or undertakes to procure assignments for an individual to work as a temporary worker for an employer.  Labor organizations are not included in this definition.

A “temporary worker” is any worker who is not a permanent employee, and shall include an individual seeking to obtain a work opportunity or assignment through a temporary services company.

Notices and Disclosures

Disclosure of all client companies
A temporary services company must post a list of all client companies where work is available through the temporary services company.  This list must be posted in all of the offices where temporary workers are required to appear for assignment to work or for payment.  If such offices do not exist, the temporary employment company must provide each worker with the list of companies. 

Notice
In addition to the names of all client companies, the list must also include the following for each job opportunity posted:

• Name and address of the client and the exact address of the worksite, directions to the worksite and a telephone number where the temporary worker can be reached for emergency purposes;

 • The type of job opportunity for the temporary worker;

• A detailed description of the work to be performed, including any requirements for special attire, accessories, tools or safety equipment;

 • The method of computing compensation and the overtime rate of pay;

• The hourly rate and any other fees or charges paid or payable to the temporary employment agency by or on behalf of the client with respect to the work to be performed;

• If transportation is to be provided to the worksite, either by the temporary services company or its client, the cost of the transportation, if any, and whether the worksite is accessible by public transportation and the approximate commute time to and from the worksite;

• The duration of the work to be performed by the temporary worker, including the time of day the work will begin, time of day the work will end, and whether there is any possibility of overtime work or of extension of the work past the anticipated end date;

• A complete and accurate description of work site hazards to which the temporary worker may become exposed, including any hazardous materials which the worker may be required to use or handle and any physical conditions or work practices which do not comply with applicable occupational health and safety standards;

• Whether a meal is provided, either by the temporary services company or its client and the cost of the mea; and

• Whether the temporary worker will be charged for using special attire, accessories, tools or safety equipment.

This notice must be given to each temporary worker prior to each work assignment, including renewed, extended or repeated assignments for a worker with the same client.

Language Access
Notices must be provided in English and any other languages that are generally used in the locales of the temporary services company or its clients.

Record Keeping
Copies of the required notices must be kept on file for one year and made available to any affected temporary workers.  Temporary workers must be given copies of notices without charge, within 10 days of a request. 

Form of Payment
Temporary services companies must compensate temporary workers in cash or, commonly accepted negotiable instruments that are payable in cash, on demand at a financial institution, and without discount regardless of the form or manner of payment.
 
Pay Equity
Temporary service companies must pay equal compensation and benefits to temporary workers who perform “substantially equivalent work” as employees of the client company and who have been employed by the client company for 90 days or more.  The 90 days do not have to be consecutive.  This section does not apply to temporary workers who earn more than substantially equivalent client company employees, unless the temporary worker replaced a client company employee who is on strike, or who has been locked out by the client company subject to a labor dispute.

Minimum Wage Protections
Temporary service companies must pay temporary workers at or above the federal minimum wage or state minimum wage, whichever is higher. 

Deductions
Deductions bringing the temporary worker’s pay below the minimum wage are prohibited.

Transportation
Temporary services companies must compensate each temporary worker who used their own car for transportation to a worksite.  Compensation must be for the fair market value of such use, including the value of transporting other workers to the jobsite. 

A temporary service company must insure any motor vehicle owned or operated by the company and used for the transportation of workers.

Written Wage Statements
At the time of each payment of wages temporary services companies must provide each worker with an itemized statement showing each deduction made from wages, the hourly rate and any other fees or charges paid or payable to the temporary employment agency by or on behalf of the recipient of the workers’ services with respect to the hours compensated by that wage payment.

Annual Earnings Summary
A temporary services company must provide each worker with an annual earnings summary within a reasonable period of time after the end of the preceding calendar year, but no later than February 1st.

Prohibited Charges and Deductions
Safety and other equipment: A temporary services company may not charge a temporary worker for safety equipment, clothing, tools, accessories or any other items required by the nature of the work either by law, custom or as a requirement of the client company.  A temporary worker may be charged the market value of such items if the worker willfully fails to return the items to the company, but no charge may be made for items damaged through ordinary use or lost through no fault of the worker.
Other items: For items other than those mentioned above, the temporary worker can be charged no more than the actual cost of the item to the labor pool, or market value, whichever is less.

Check cashing: Temporary service companies may not charge directly or indirectly for cashing a worker’s check.

Meals: If lunch is provided at the worksite by the temporary service company, they may not charge more than the actual cost of providing lunch.  Purchase of a lunch may not be a condition of employment.

Facilities
A temporary services company must provide restrooms, drinking water and sufficient seating at offices where temporary workers are required to appear for assignments to work or for payment.
Restrictions on Employment
A temporary services company may not restrict the right of a temporary worker to accept or the right of a client company to offer a permanent position with a client company.  A temporary services company may receive a reasonable permanent placement fee from the client. 

Workers’ Compensation
A temporary services company’s workers’ compensation insurance premiums shall be determined and paid based on the experience rating of the client company for which the temporary worker performs services.  If the client company does not have sufficient workers’ compensation volume to be experience rated, the premiums shall be the rate approved for an employer that can not be rated.
Both a temporary services company and the client company shall be entitled to the exclusivity of remedy provided by the workers’ compensation law, provided that 1) workers’ compensation coverage is in effect; 2) workers’ compensation insurance premiums are paid based on the experience rating of the client company for which the temporary worker performs the services and c) premiums for employees supplied by the temporary services company are based on the same occupation codes that the client company uses for the payment of premiums on behalf of its own employees performing similar work. 
Temporary service companies must retain for at least 3 years all records showing the information justifying the premiums paid.  In the absence of such records, it will be presumed that justification for the related premium payment does not exists and the requirements under this law have not been met with respect to the employee or employees for whom the premium was paid.

False Information
A temporary service company may not give false, misleading or deceptive information or advertisements concerning the services, compensation or benefits, or work opportunities that the company will provide to temporary workers.

Advertising
All advertisements for a temporary services company must contain the correct name of the temporary services company and one of the following:
The street address of the company’s place of business; or
The correct telephone number of the company at its place of business.

Retaliation
A temporary services company or client company may not discharge, reduce the compensation of or otherwise discriminate against any employee for making a complaint of a violation of this article, participating in any of the proceedings under this law, using any civil remedies to enforce her rights, or otherwise asserting her rights under this law.

Labor Disputes
A temporary services company shall not procure workers to replace employees who are not working due to a labor dispute; send or refer workers to any worksite where a labor dispute is in progress; send or refer workers to a client company involved in a labor dispute, for work that would normally be performed by the client company’s employees; or send or refer workers to a client company for work that the client company is performing because of the existence of a labor dispute.

Criminal Penalties
Any person found in violation of this law is guilty of a Class A misdemeanor.

Civil Enforcement
Civil actions for violation of this law include but are not limited to, equity proceedings to retrain and enjoin and the violation and actions to recover damages.  Civil actions may be instituted by the attorney general or any person of any right provided by this article or any other law.  Awards of damages may be up to three times the damages actually incurred.

Attorney’s Fees and Costs
If the plaintiff prevails, they shall be awarded reasonable attorney’s fees and costs. 

Punitive Damages
If a court finds that the violation was willful, by clear and convincing evidence, it may award additional punitive damages.

Waiver of Rights
Any waiver by a temporary worker of the provisions in this law is contrary to public policy and void and unenforceable.  Any attempt by a temporary service agency or client company to have a temporary worker waive rights under this law shall constitute a violation.

Relation to Other Laws
Provisions under this law are not exclusive and do not relieve parties subject to this article from obligations under other laws.  Remedies available under this law are not exclusive and are in addition to any other remedies provided by other laws.  This law shall control all conflicts with provisions of article 11 of the General Business Law.