Last week, Pennsylvania Gov. Tom Wolf signed into law HB 2293, a bill establishing registration and oversight of contract health care services agencies. The law applies to temporary health care services agencies that provide employees to assisted living communities, personal care homes, and nursing homes.

Among other things, the new law requires covered agencies to register with the state; pay an annual registration fee; and provide health care facilities with documentation that any personnel assigned to the facility meets all licensing, certification, training, and continuing education standards. The bill also eliminates the use of noncompete agreements by both the health care services agency and the health care facility.

The original version of the bill, which was introduced in January during the surge of the Covid-19 omicron variant, contained language that would have capped what a health care services agency could charge a health care facility at 150% of the average rate for the service as determined by the Pennsylvania Department of Human Services. Health care services agencies would have also been required to file annual cost reports with the department. ASA, working with its lobbyist Emerald Strategies, was successful in getting those provisions stripped from the bill.

Proponents of the legislation have vowed to continue to push for rate caps in future legislation, which ASA would vigorously oppose.

In a major win for the staffing industry, the New Jersey State Senate chose earlier this week not to vote on Gov. Murphy’s conditional veto of A 1474, an onerous bill that would make it harder for staffing agencies to do business in the Garden State. ASA; the New Jersey Staffing Alliance, an ASA-affiliated chapter; and staffing agencies engaged in intense advocacy, resulting in the bill being pulled from consideration because the senate did not have enough favorable votes for passage.

A 1474, which applies to construction, light industrial, and other workers—but not professional or clerical workers—would

• Require staffing agencies to pay at least the average pay and cost equivalent of benefits received by client employees performing the same or substantially similar work
• Impose a limitation on conversion fees
• Prohibit agencies from charging a fee for providing transportation

ASA and NJSA engaged in a prolonged grassroots campaign, explaining to senators why the bill is bad for workers and the staffing industry, and were successful in persuading one senator to introduce an alternative, more palatable, bill.

On Oct. 6, Sen. Holly Schepisi introduced S 3182. Modeled after the Massachusetts Temporary Worker Right to Know law, the legislation contains several provisions found in A 1547 that protect temporary employees but presents fewer operational issues for staffing agencies.

The senate’s next scheduled voting session is Monday, Nov. 21, when the body could take up A 1474. Between now and then, ASA and NJSA will continue to meet with senators and urge them to support S 3182 as a compromise bill. ASA also will be reaching out to staffing agencies doing business in New Jersey to ask them to contact their state senators to support S 3182.

Weary from spending the last two years focusing on pandemic-driven legislative agendas, state and federal lawmakers started the new year focused on the upcoming elections and a return to “normal” legislative issues. However, the first half of the year was defined by a legislative effort aimed at one of the most important segments of the industry: health care staffing. Nurse staffing agencies, which months earlier were being lauded as playing an integral part in fighting the pandemic, found themselves the subject of proposed restrictive legislation.

But it wasn’t just nurse staffing that was the target of state and federal legislatures. Bills and initiatives dealing with employers’ use of artificial intelligence, pay disclosure, predictive scheduling, and other issues made the beginning of 2022 particularly busy for the staffing industry in state houses across the country.

Through it all, ASA secured major legislative victories in an effort to ensure that its members could remain unencumbered in placing people in jobs.

Responding to claims of potential unfair pricing by hospitals, nursing homes, and assisted living facilities, legislatures in 14 states—California, Colorado, Connecticut, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, Ohio, Oregon, Pennsylvania, and Rhode Island—considered legislation that would regulate how nurse staffing agencies operate. Almost all of the proposals would have placed limits on what staffing agencies could charge for nurse staffing services.

In response, ASA and its outside lobbyists, along with a broad coalition of nurse staffing agencies, engaged in prolonged and extensive advocacy to explain that the proposals were the wrong solution and, if enacted as drafted, would further aggravate the current nursing shortage.

As a result of these efforts, no legislation containing rate caps passed. However, several states enacted bills that regulate various aspects of operation. For an updated list of all the bills’ status and what they would mandate, visit americanstaffing.net.

On June 29, a last-minute procedural issue prevented the New Jersey legislature from passing A 1474/S 511, an onerous bill that would make it much more difficult for staffing agencies to do business in the state. Further action on the legislation is likely to take place next month.

Earlier this year, leadership of the New Jersey Staffing Alliance, an ASA-affiliated chapter—as well as ASA staff—met with the sponsors of the legislation to discuss amendments crucial to the staffing industry. After several conversations, an amended version of the bill was published. The amended bill was marginally better, but many industry suggestions were not included.

Yesterday, NJSA and ASA officials met with Sen. Cryan, primary sponsor of S 511, and urged the legislature to adopt the staffing industry’s amendments. A follow-up meeting with the senator and industry representatives will be scheduled for later this month.

The New Jersey Senate is scheduled to come back into session, and it is widely anticipated that the senate will take up A 1474/S 511 at that time. Gov. Phil Murphy has said he will issue a conditional veto of the bill, so NJSA and ASA also are working with the governor’s office. ASA will continue to keep members updated on this important situation as developments unfold.

On Oct. 18, ASA filed an amicus brief asking the U.S. Supreme Court to review a class action relevant to health care staffing agencies and others that reimburse traveling workers through per diem payments.

ASA asked the court to reverse a Ninth Circuit Court of Appeals ruling that a health care staffing agency’s payments are compensation for work and thus must be included in traveling workers’ regular rate of pay for overtime purposes. If allowed to stand, the Ninth Circuit’s decision could harm many staffing agencies, particularly in the health care sector. As many as 20 other firms face or have faced similar lawsuits.

Per diem payments may be excluded from calculation of overtime under the Fair Labor Standards Act if the payments reimburse workers for meals, incidentals, and housing incurred on behalf of the employer while working away from home. They may not, however, effectively function as compensation for work.

The plaintiffs allege that the agency’s per diem payments functioned as compensation because they were prorated when the workers did not work hours or shifts required under their contracts. The trial court rejected this argument, but the Ninth Circuit reversed, holding that a combination of factors indicated that the payments functioned as compensation for hours worked. The factors included tying the per diem deductions to shifts not worked regardless of the reason for not working. The ASA brief argues that the court incorrectly interpreted the relevant statute to prohibit such practice.

The Supreme Court reviews only a limited number of cases each session, and it will be several months before it is announced if the court will grant review of this case. ASA is represented by one of the top Supreme Court litigators in the country: Donald Verrilli, who was U.S. Solicitor General from 2011 to 2016.

ASA has filed suit against the state of Nevada challenging a law that, effective Oct. 1, 2021, would bar staffing agencies from providing skilled construction labor—the first time any state has attempted to impose an outright ban on the services a staffing agency can provide. The lawsuit, filed Aug. 31, seeks an injunction and a declaration that the law is unconstitutional.