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Washington State Enacts Temporary Worker Safety Law

Last week, Washington Gov. Jay Inslee signed a new law aimed at ensuring temporary worker safety in the construction and manufacturing industries. The law requires host employers to review the safety training provided by staffing firms, document and inform staffing firms about the site-specific hazards temporary workers may face, and train temporary workers on any such hazards. If a temporary worker’s job tasks or work location change and new hazards may be encountered, the host employer must inform the staffing firm and employees and must ensure that updated training and personal protective equipment are provided, as necessary.

The law was drafted by the Washington State Department of Labor and Industries. Given that passage was all but certain, the American Staffing Association, lobbyist Melissa Gombosky, and members of the ASA employee safety committee worked with L&I to remove unnecessary and overly burdensome requirements.

Appeals Court Enjoins San Antonio Paid Sick Leave Law

On March 10, the Texas Fourth District Court of Appeals upheld a temporary injunction prohibiting San Antonio’s paid sick leave ordinance from going into effect, ruling that the ordinance is unconstitutional. ASA—as well as several staffing firms, business groups, and businesses—is a plaintiff in the lawsuit challenging the ordinance’s legality.

The ordinance, which provides one hour of paid sick leave for every 30 hours worked and includes no waiting period for leave use, effectively creates a minimum wage and therefore violates the Texas Minimum Wage Act, which supersedes all local wage ordinances, the court ruled. A paid sick leave ordinance in the city of Austin was similarly struck down in 2018. It is unclear whether the city of San Antonio will appeal the court’s decision.

Industry Advocacy Helps Derail Unnecessary Employer Legislation in Rhode Island

Advocacy by ASA and the Rhode Island Staffing Association, an ASA-affiliated chapter, helped persuade state lawmakers to put legislation on hold that would have imposed new regulatory burdens on businesses that use contract labor.

Rhode Island bill S 139 would make any employer or organization that obtains workers through a subcontractor, staffing organization, or other labor contractor legally liable if that labor contractor violates any of the payment-of-wages laws under Title 28 of the Rhode Island General Laws.

ASA and RISA submitted testimony outlining the staffing industry’s objections to the bill. They argued that the bill was redundant and unnecessary because users of contract labor have long been responsible as joint, special, or secondary employers under a wide range of federal and Rhode Island state labor and employment laws covering every aspect of the employment relationship whenever the user firm directs and controls the work performed by the contract employees.

A coalition of Rhode Island businesses also objected to the bill, arguing that it would penalize users of contract labor even if they had no knowledge of any violation of the wage payment laws.

Faced with unified business opposition, the senate labor committee referred the bill for study, effectively killing it for the year. If lawmakers revisit the subject again during the 2022 legislative session, ASA and RISA will renew their objections.

At Association’s Request, CDC Says Temporary Workers Should Be Included in Client’s Vaccination Plans

At the urging of ASA and members of the ASA employee safety committee, the U.S. Centers for Disease Control and Prevention recently updated its website to state that temporary workers should be included in clients’ vaccination plans for essential workplaces. This development is significant, as some health care clients had been reluctant to include temporary workers.

The updated guidance at cdc.gov says, “For workers employed by contract firms or temporary help agencies, the staffing agency and the host employer are joint employers and, therefore, both are responsible for providing and maintaining a safe work environment. Workers should be considered for vaccination prioritization according to the primary industry activities at the site(s) where they work, even if the industry category of their actual employer does not fall within these lists.”

ASA participates in the government’s National Occupational Research Agenda service sector group, which provides a research framework to CDC. Through NORA, ASA urged CDC to address clients’ vaccination of temporary workers.

Year-End Spending Bill Extends Work Opportunity Tax Credit Through 2025

When Congress passed its omnibus spending bill for fiscal year 2021, most of the business community’s attention was focused on the provisions related to the coronavirus stimulus package. However, there were several other provisions of interest in the bill, including language that dealt with several expiring tax credits.

A coalition of businesses, including ASA, sent a letter to House and Senate leaders urging them to extend the Work Opportunity Tax Credit before it expired at the end of the year. In the letter, the group stated, “Allowing tax extenders to lapse at the end of 2020 would undermine the effectiveness of these incentives, threaten thousands of jobs in the U.S. economy, and cause needless uncertainty for taxpayers at a time when many are coping with severe economic hardship.”

As part of the final spending package, language was included that extended several expiring tax credits, including the Work Opportunity Tax Credit, through Dec. 31, 2025. President Trump signed the bill into law shortly before the end of the year.

Congress Passes Coronavirus Relief Bill, Allows Businesses to Deduct PPP Expenses

After months of negotiations, starts, stops, and restarts, the U.S. Congress this week sent a $908 billion coronavirus stimulus package to President Trump for his signature before heading home for the holiday recess. One of the key provisions of the bill represents a major win for the business community—which ASA had lobbied for over the past several months. In the section of the bill dealing with the Paycheck Protection Program, language was included that clearly states that business expenses paid for with the proceeds of PPP loans are tax deductible.

When the PPP was adopted as part of the Coronavirus Aid, Relief, and Economic Security Act, Congress made clear that any loan forgiveness under the program would be excluded from the borrower’s taxable income. However, in a notice published in April, the U.S. Internal Revenue Service undercut this policy by denying borrowers the ability to deduct the same expenses that qualified them for forgiveness. Business groups, including ASA, have been lobbying Congress to allow the tax deductibility of payroll and other expenses paid or incurred to achieve loan forgiveness. Recently, ASA sent a letter to House and Senate leaders urging them to support the deductibility language.

The stimulus package also includes additional funding for the PPP and allows small businesses hit hardest by the pandemic to receive a second forgivable loan. It extends all pandemic unemployment insurance programs and reinstates federal supplemental unemployment insurance benefits through March 14, 2021. The bill, which was included as part of the end-of-the-year spending agreement, is expected to be signed by the president.

ASA Advocacy Helps Defeat Predictive Scheduling Bill in Massachusetts

A two-year battle over legislation in Massachusetts that would have severely restricted the use of temporary employees by certain businesses ended when the bill was referred for study last week, killing it for the session.

The bill called for fast food, retail, and hospitality employers to provide their workers with written, good faith estimates of an employee’s work schedule upon hire, and 14 days’ advance notice of any new schedule. It also would have required that such employers pay employees additional compensation if they change employee work schedules on short notice. Finally, covered businesses would have been prohibited from using any third-party workers unless they first offer additional work to their existing employees.

ASA; the Massachusetts Staffing Association, an ASA-affiliated chapter; and lobbyist Murphy Donoghue Partners met with state lawmakers and submitted testimony urging that the bill be amended to explicitly exclude staffing firm temporary workers. Referral of the bill to a study committee last week ended further consideration for the year. However, it may be reintroduced when the 2021 legislative session commences in January, at which time ASA will continue its advocacy efforts.

ASA Advocacy Leads to Favorable Interpretation of New Maine Law Limiting Restrictive Employment Agreements

Last year, Maine enacted a law that focused on limiting the use of noncompete agreements but included language that could have barred the use of staffing firm conversion fees.

The law defined a “restrictive employment agreement” as an agreement between two or more employers, including through a franchise agreement or a contractor and subcontractor agreement, that prohibits or restricts the employers from soliciting or hiring one another’s employees or former employees. The concern was whether this language could be construed to prohibit the use of conversion fees by staffing firms. After hearing from some members that clients were pushing back on agreements that contained traditional conversion fee language, ASA sought clarification from the state’s department of labor.

In a letter to the Maine commissioner of labor, ASA asserted that the law’s prohibition against restrictive employment agreements should not apply to staffing firm conversion fees charged to clients. The Maine Bureau of Labor Standards replied that because the legislature did not appear to have considered the consequence of prohibiting staffing firm conversion fees when writing the law, the department of labor “does not intend at this time to pursue penalties or otherwise enforce alleged violations of the law involving reasonable conversion fees.”

Staffing firms doing business in Maine should share this information with any clients that are concerned about traditional conversion fee language that appears in their agreements.

ASA Advocacy Pays Off on California Employment Bills Affecting Staffing

ASA advocacy was instrumental in influencing the outcome of two California bills that would have had a major negative effect on the staffing industry.

On Sept. 30, California Gov. Gavin Newsom signed SB 973 into law; it requires businesses with 100 or more employees to annually report employee salary and wage information to the state’s Department of Fair Employment and Housing, along with data on workers’ race, ethnicity, and sex. ASA and California Staffing Professionals, an ASA-affiliated chapter, urged lawmakers to exempt temporary workers because such workers are excluded for federal EEO-1 reporting purposes and thus should be exempted from state requirements. In a major win for the industry, the legislature agreed and excluded temporary workers.

ASA advocacy also helped derail a bill that would have required hotels, event spaces, airport businesses, janitorial service companies, and certain other employers to offer newly open jobs to employees who had been laid off for pandemic-related reasons. ASA and CSP argued that the bill would harm the state’s temporary workers and would unduly hamper employers’ ability to augment their workforces at their discretion. Despite strong union support for the bill, Gov. Newsom vetoed it, saying that it was confusing and would “place a heavy burden on hotels that have suffered financially during the Covid-19 pandemic.” It is unclear whether the legislature will attempt to override the governor’s veto.

ASA Advocates for Business Protection, UI Reform, and PPP Forgiveness

Over the past several months, ASA has advocated for Congress to act aggressively and provide liability protection for businesses, unemployment insurance relief for employers, and PPP loan forgiveness for small businesses.

ASA, along with nearly 500 business groups including the U.S. Chamber of Commerce, has urged Congress to pass temporary liability relief provisions in the next Covid-19 relief bill. This effort is crucial to ensuring that staffing firms and other businesses receive protection against unwarranted and inequitable liability lawsuits after they begin to open brick-and-mortar operations.

As businesses continue to deal with the fallout of the pandemic, a top concern for employers is unemployment insurance. ASA has been urging Congress to explore alternatives to the $600 per week in additional benefits awarded and has requested the transfer of federal funds to state unemployment insurance trust funds equal to the amount of benefits paid due to Covid-19.

ASA and nearly 150 other trade associations urged passage of HR 7777, the Paycheck Protection Program Small Business Forgiveness Act. This bipartisan legislation would forgive all PPP loans of less than $150,000 upon the borrower’s submission of a simple document.

Negotiations between the House, Senate, and White House on these issues appear to be at a standstill, but discussions are continuing. Given everything that is at stake, and the fact that there will be an election in less than 100 days, it looks like some agreement will be reached in the coming weeks that will address all three issues. The timing and the total amount of the eventual compromise is still very much in the air.