In recent years, there has been a substantial increase in the so-called “contingent workforce.” Indeed, the US Bureau of Labor Statistics reports that approximately 80 percent of employers use some type of contingent labor, such as temporary workers, leased employees, or independent contractors, to supplement their workforce.
On August 6, 2012, Massachusetts Governor Deval Patrick signed H. 4304, “An Act Establishing a Temporary Workers Right to Know” (the “Act”). According to the governor’s office, the Act “strengthens the Commonwealth’s ability to regulate staffing and temporary agencies to protect vulnerable workers and level the playing field for businesses.”
The Act provides that a staffing agency shall provide to each employee for new assignment or employment notice of the following:
- the name, address and telephone number of: (i) the staffing agency, or the contact information of the staffing agent facilitating the placement; (ii) its workers compensation carrier; (iii) the worksite employer; and (iv) the Massachusetts Department of Labor Standards (the “Department”);
- a description of the position and whether it shall require 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, when known, the expected duration of employment;
- whether any meals shall be provided by the staffing agency or worksite employer and the charge, if any, to the employee; and
- details of 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;
The Act does not prohibit a staffing agency from directing an employee to employment by telephone; provided that the telephone message discloses the information above. The information concerning the employee’s assignment must be confirmed in writing and sent to the employee, in a form designated by the employee, before the end of the first pay period. Any change to the initial terms of employment must be immediately provided to the employee and the employee must acknowledge the change in terms.
The Act further requires a staffing agency to post in a conspicuous place in each of its locations where it does business notice of an employee’s rights under the Act and the name and telephone number of the Department. The Department will provide a sample posted notice that meets the requirements of the Act and, when appropriate, facilitate the translation of the notice to a language other than English.
The Act does not apply to “professional” employees as defined in the Fair Labor Standards Act; or to employees who are secretaries or administrative assistants whose main or primary duties are described by the Bureau of Labor Statistics of the US Department of Labor as involving 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 or visitors.”
Under the Act, a staffing agency or worksite employer may not charge or accept a fee from an employee for:
- the cost of registration of the staffing agency or the cost of procuring employment;
- any good or service unless under the terms of a written contract with an 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 gain a profit from any cost or fee charged to the employee;
- the provision of any of the following that exceed the actual cost per applicant or employee: bank card, debit card, payroll card, voucher, draft, money order or similar form of payment or wages, or any drug screen;
- a criminal record offender information request;
- transportation except as provided below;
- any good or service the payment of which would cause the employee to earn less than the applicable minimum wage.
Moreover, according to the Act, “no staffing agency or work site employer . . . may deduct any costs or fees from the wages of an employee without the express written authorization of the employee.” A staffing agency or work site employer must furnish to the employee a copy of the signed authorization in a language that the employee can understand.
If a staffing agency or work site employer offers transportation services to an employee and charges a fee for such services, the staffing agency or work site employer may charge such employee no more than the actual cost to transport such employee to or from the designated work site. The fee, if any, to cover the transportation service costs for each such employee shall not exceed 3 percent of such employee’s total daily wages, and may not reduce the employee’s total daily wages below the minimum wage earned for the day.
If a staffing agency or work site employer requires the use of such transportation services, no fee may be charged. Any staffing agency that sends an employee to a worksite employer for employment that day where in fact no employment exists must fully refund the cost of transportation.
The Act also states that a staffing agency may not:
- knowingly issue, distribute, circulate, or provide any false, fraudulent, or misleading information, representation, promise, notice, or advertisement to any applicant or employee;
- use any name that has not been registered with the Department in the advertisement of its services;
- assign or place an employee in employment by force or fraud, or for illegal purposes, or where the employment is in violation of state or federal laws governing minimum wage, child labor, compulsory school attendance, required licensure or certification, or at any location that is on strike or lockout without notifying the employee of this fact;
- refuse to return on demand any personal property belonging to an employee or any fee or cost that is charged or accepted by a staffing agency or work site employer in excess of the amounts allowable under this section.
The Department will issue rules and regulations and all inspections and investigations necessary for the enforcement of this Act. Violators will be subject to a civil citation or order.