|September 28, 2012|
Previously published on September 25, 2012
In August 2012, Massachusetts Governor Deval Patrick signed into law a bill that established a series of new legal requirements for temporary staffing agencies and the companies that use their services. The law, called the “Temporary Workers Right to Know Act,” amends existing Massachusetts laws governing the temporary staffing industry in three specific ways by: (1) requiring that staffing agencies provide certain notices and information to all temporary employees; (2) prohibiting staffing agencies and worksite employers from charging certain fees to temporary employees; and (3) regulating the manner in which staffing agencies conduct their business. The new law will take effect on January 31, 2013.
Required Notices to Temporary Employees
The centerpiece of the legislation is a requirement that all staffing agencies provide to any temporary employee assigned to a new position a written notice that includes:
The name, address, and telephone number of the staffing agency, the staffing agency’s workers’ compensation carrier, the worksite employer, and the Massachusetts Department of Labor Standards;
A description of the position and whether it requires any special clothing, equipment, training or licenses, and any costs charged to the employee for supplies or training;
The designated pay day, the hourly rate of pay, and whether overtime pay may occur;
The daily starting time and anticipated end time and, if it is known, the expected duration of employment;
Whether the staffing agency or the worksite employer will provide any meals to the employee and the charge for those meals, if any; and
Details on the means of transportation to the worksite and any fees charged to the employee by the staffing agency or worksite employer for any transportation services.
Although a staffing agency may assign a temporary worker to a new position by telephone, an oral assignment must contain all of the information set forth above. In addition, a staffing agency must provide a written notice to the employee confirming this information before the end of the employee’s first pay period. Any subsequent changes to the initial terms of employment must be immediately provided to the employee, and the employee must acknowledge the change in terms, presumably in writing.
The new law also requires that a staffing agency post, in a conspicuous location in each of its places of business, notice of workers’ rights under this law and the contact information for the Massachusetts Department of Labor Standards.
Staffing agencies need not comply with these notice requirements for employees that qualify as “professionals” as defined by the federal Fair Labor Standards Act (29 U.S.C. § 152) or “secretaries or administrative assistants” whose primary duties involve one or more of the following: drafting or revising correspondence; scheduling appointments; creating, organizing, and maintaining paper and electronic files; and providing information to callers and visitors.
Prohibited Fees and Deductions
The new law also prohibits staffing agencies or worksite employers from charging a temporary employee for any of the following:
The cost of registration with the staffing agency or the cost of procuring employment;
The cost of performing a criminal record check;
Any good or service, unless it is charged under the terms of a written contract with the employee, which clearly states in a language that the employee understands, that the purchase is voluntary and which provides that the staffing agency will not profit from any cost or fee charged to the employee;
The provision of a drug screen, bank or debit card, or other form of payment if the charge to the employee exceeds the actual cost;
Transportation, except that the staffing agency or worksite employer may charge the employee for the actual cost of transportation to and from the designated worksite, so long as use of the transportation service is optional and the transportation fee does not exceed 3% of the employee’s total daily wages or reduce total daily wages below the minimum wage; or
Any good or service that would cause the employee to earn less than the applicable minimum wage.
Finally, no costs or fees may be deducted from a temporary employee’s wages unless the employee expressly authorizes such deduction in writing in a language that the employee can understand.
Additional Restrictions on Staffing Agencies
The law contains additional restrictions on the conduct of staffing agencies. Specifically, staffing agencies may not:
Knowingly provide any false, fraudulent, or misleading information to any applicant or employee;
Use any name that has not been registered with the Massachusetts Department of Labor Standards;
Assign or place any employee by force or fraud, for illegal purposes, or where the employment is in violation of federal or state laws governing minimum wage, child labor, compulsory school attendance, or required licensure or certification;
Assign or place any employee at any location where there is a strike or lockout without notifying the employee of that fact; or
Refuse to return the employee’s personal property or fees or costs in excess of those allowed by this law.
Enforcement and Interpretation
The Massachusetts Department of Labor Standards is charged with promulgating rules and regulations interpreting the new law, and investigating compliance. The agency has stated that it intends to publish sample notices that will satisfy the notification requirements of the new law, as well as regulations to implement the law.
Failure to comply with this law’s requirements could subject employers to civil citations and fines.
Implications for Staffing Agencies and Employers that Use Them
Staffing agencies should ensure that they have processes in place to provide all required notices to temporary employees prior to January 31, 2013. This will require both regular gathering of all required information from worksite employers and prompt communication of this information to the temporary employees at the time of assignment.
Staffing agencies and worksite employers also should review all of the fees and costs that they charge to temporary employees to ensure compliance with this law and ensure that all temporary employees provide express written authorization for any permitted fees and deductions from their pay.