Through the remainder of the year in this space, ASA will recap the association’s efforts in successfully defeating or significantly mitigating proposed legislation that would have harmed the staffing industry.
Earlier this year, the Delaware House of Representatives introduced HB 199, a bill aimed at regulating temporary nurse staffing agencies. Among the provisions of the bill was language authorizing the state’s health department to “establish a maximum rate temporary nurse staffing agencies can charge long-term facilities.”

Working with Delaware lobbyist Ellen Valentino of the Cornerstone Government Affairs Group, ASA met with the bill’s sponsors and House and Senate leadership to express the industry’s concerns with the legislation as written. They discussed the potential problems a rate cap system posed to the state’s long-term care community and urged the legislature to take steps to address the nursing shortage instead of installing rate caps that will just exacerbate the nursing shortage and harm patient care.

When the legislature adjourned for the year at the end of June, no action had taken place on HB 199. Because legislation carries over to the second year of the legislative session, the bill is still active. ASA lobbyists are in the process of scheduling meetings with the bill’s sponsors to see what the future may hold for HB 199 and any other bill affecting temporary nurse staffing.

Through the remainder of the year in this space, ASA will recap the association’s efforts in successfully defeating or significantly mitigating proposed legislation that would have harmed the staffing industry.

In January, the New Hampshire legislature looked to introduce a bill that would require New Hampshire nurse agencies to register with the state’s Department of Health. Many states have licensing laws that prescribe basic nurse agency operating standards in the interest of patient safety and quality of care, which ASA supports. But this proposal did much more.

As introduced, SB 149 would have required nurse agencies to submit quarterly reports to the health department, by county, on each health care facility they contract with. The reports would have required agencies to detail the charges made to the facility for each licensed health care employee category, the average amount paid to employees in each category, and the average labor-related costs incurred by the agency in each category. In addition, agencies would have had to amend their client contracts to include a detailed schedule of the agency’s pay and bill rates for every category of employee, including average hourly base pay rates, plus hazard pay, shift differentials, overtime, holiday pay, and travel and mileage pay.

Through written testimony and meetings with lawmakers, ASA stressed that—while the industry supported reasonable quality-focused rules—the proposed reporting and record-keeping mandates would have increased nurse agency costs and required disclosure of confidential business information that has no relationship to operating standards, patient safety, or quality of care.

The association’s New Hampshire lobbyist, Bruce Berke with Sheehan Phinney Capitol Group, met with key legislators and was successful in getting onerous requirements removed. The bill was amended to establish a simple and straightforward registration process. Gov. Chris Sununu signed the bill into law in August.

On Wednesday, Nov. 22, the American Staffing Association, the Staffing Services Association of Illinois, and three Illinois staffing firms were named plaintiffs in a lawsuit against the Illinois Department of Labor to immediately and permanently halt enforcement of new amendments to the Illinois Day and Temporary Labor Services Act. The complaint, which was filed in the U.S. District Court for the Northern District of Illinois, Eastern Division, alleges that the amendments violate the state constitution and U.S. Constitution—as well as federal statutes including the Employee Retirement Income Security Act, Affordable Care Act, and National Labor Relations Act.

On Aug. 4, Illinois Gov. Jay Pritzker signed into law HB 2862, which created the sweeping amendments to the act. Among other things, the amendments require covered temporary employees who work 90 days to receive the same pay and benefits as the client’s employees. The act does not apply to temporary professional and clerical workers. After the law was enacted, the Illinois Department of Labor issued administrative regulations and proposed rules. On Nov. 17, the governor signed an amendment to delay the effective date of the onerous “equivalent pay and equivalent benefits” provision until April 1, 2024.

The lawsuit notes that the amendments and accompanying rules and regulations are too vague and impose extraordinary burden, cost, and compliance risks on staffing firms, including exposure to statutory penalties and lawsuits from uninjured third parties.

The plaintiffs are represented by Chicago law firms Locke Lord LLP and Herschman Levison Hobfoll PLLC.

Through the remainder of the year in this space, ASA will recap the association’s efforts in successfully defeating or significantly mitigating proposed legislation that would have harmed the staffing industry.

In February, the Colorado legislature introduced and considered HB 23-1118, legislation that would have required businesses to offer additional work hours to existing employees before hiring a new employee, “including hiring through the use of staffing agencies.”

In written opposition testimony, ASA explained that the proposed legislation would deny jobs to thousands of temporary and contract workers—most of whom work full-time workweeks, enjoy the flexibility that temporary work offers, and otherwise would be assigned to work at peak seasons or to fill in for employee absences. These workers would be denied both the opportunity to work and a “bridge” that often leads to permanent employment. The testimony concluded that sacrificing the work opportunities for one group of workers, who generally work full-time workweeks, for the benefit of another group, some of whom may work part time, would make little sense.

ASA also voiced concerns through a meeting, arranged by lobbyist Jay Hicks of Hicks and Associates, with the bill sponsor. As a result of these efforts as well as strong opposition from the business community, the bill died when the legislature adjourned.

On Nov. 9, the Illinois legislature passed HB 3641, delaying the equal pay and benefits mandate under the Day and Temporary Labor Services Act. The mandate requires staffing agencies to provide temporary employees with equal pay and benefits after an employee has worked 90 days. HB 3641 provides that calculation of the 90-day waiting period will not begin until April 1, 2024.

The amendment was passed at the urging of ASA; the Staffing Services Association of Illinois; and the Illinois Search and Staffing Association, an ASA-affiliated chapter. Industry representatives met with assistant majority leader Rep. Jay Hoffman (D-113), who was instrumental in achieving the delay.

The delay in implementing the equal pay and benefits mandate will give the Illinois Department of Labor time to draft regulations clarifying how the mandate will apply. State legislators had sharply criticized the department’s proposed rules, saying they were “too vague to provide meaningful guidance.”

ASA filed extensive comments on the proposed regulations and will continue to pursue legislative fixes when the legislature reconvenes in January.

Through the remainder of the year in this space, ASA will recap the association’s efforts in successfully defeating or significantly mitigating proposed legislation that would have harmed the staffing industry.
Earlier this year, when the Ohio House of Representatives passed HB 33, the fiscal year 2023–24 budget bill, it contained language regulating nurse staffing firms—including language establishing rate caps and requiring nurse staffing firms to submit a schedule of rates to be charged to facilities.

When the bill was sent to the state Senate, ASA—along with member health care firms and Ohio lobbyist Andy Bowers of Park Street Law Group LLC—engaged key senators in an effort to have the nurse staffing-related language removed from the bill. Following several meetings and conversations, the efforts were successful as the bill was passed in the state Senate without the nurse staffing-related language.

When House and Senate leadership began negotiations to discuss what would be in the final bill, ASA remained engaged in the process and explained to leadership why rate caps and the reporting requirements would be harmful to the state’s health care system. Thanks to these and other efforts, the annual budget that was signed into law in Ohio did not include the nurse staffing-related language.

Through the remainder of the year in this space, ASA will recap the association’s efforts in successfully defeating or significantly mitigating proposed legislation that would have harmed the staffing industry.

In January, the Colorado legislature followed up its new law requiring the registration and licensure of all “supplemental health care staffing agencies” by introducing HB 23-1030. The bill, as originally drafted, prohibited agencies from including in a contract or agreement with a health care worker, nursing care facility, or assisted living residence a provision for liquidated damages, employment fees, or other compensation if the nursing care facility or assisted living residence hired the health care worker as a permanent employee either prior to or after the termination of the contract or agreement.

In a letter to the bill’s sponsors, ASA objected to the conversion fee ban because it would prohibit staffing agencies from recouping their recruiting and placement costs and allow clients to use them as a free employment agency. While testifying before the state senate’s business, labor, and technology committee, ASA vice president of government relations Toby Malara explained that these fees usually are paid on a sliding scale based on the hours the employee has worked on the agency’s payroll and are generally waived entirely if the employee is on the payroll for a period of time agreed to by both parties.

Following the hearing, ASA lobbyist Jay Hicks of Hicks & Associates arranged a meeting between interested parties and the committee chair. Representatives from the Colorado Health Care Association and Center for Assisted Living showed no interest in compromising, but the committee chair understood the association’s concerns and, at his direction, the bill was amended to allow for conversion fees to be charged during the first 30 days of a contract.

Today and through the remainder of the year in this space, ASA will recap the association’s efforts in successfully defeating or significantly mitigating proposed legislation that would have harmed the staffing industry.

Earlier this year, the Connecticut legislature introduced and considered HB 6859, legislation that would have required staffing agencies to provide employees with advance notice of work schedules and changes in schedules. The bill would have also required businesses to “make every effort” to schedule existing employees before hiring a new employee from a staffing agency. This was the sixth consecutive year that the state’s legislature considered such legislation.

In written opposition testimony, ASA explained that staffing firms could not comply with the bill’s requirement to provide a written estimate of the employee’s work schedule at the time of hire—including the average and range of hours the employee could expect to work each week plus the number, length, and days of their shifts—because staffing firms usually do not know that information at that time.

ASA also objected to the bill’s requirement that, before hiring a new employee from a staffing firm, an employer must “make every effort” to schedule its existing employees. ASA argued that every employer should be able, without delay, to obtain the help it needs in exigent circumstances. Many requests for temporary help could not be timely met, or met at all, if a business had to first canvass its workforce to identify individuals who might be willing and able to perform the work.

ASA lobbyist Kevin Hill of Powers, Griffin & Hill then arranged for a meeting with the bill’s sponsors to discuss the association’s concerns. Ultimately, the legislation was not called up for consideration and the bill died when the legislature adjourned in June.

Changes in Congress and several state legislatures made it almost impossible to predict what legislative challenges the staffing industry might face in 2023. With the height of the Covid-19 pandemic in the rearview mirror, it appeared that legislators would turn their attention to more traditional labor and employment issues, such as minimum wage increases, predictive scheduling, and pay equity.

Efforts to regulate health care staffing also continued in numerous states, occupying the majority of the association’s legislative activities. ASA also joined a lawsuit to fight back against a newly enacted “first of its kind” temporary worker pay equity law in New Jersey; some of its most troubling provisions then were adopted in Illinois. ASA further engaged on artificial intelligence measures as well as worker misclassification issues. Through it all, ASA secured major victories to ensure that its members could remain unencumbered in placing people in jobs.

As the calendar hits August, most state legislatures have adjourned, and those that have not are in the process of wrapping up proceedings for the year. However, in New Jersey and Illinois, there is still plenty of work being done when it comes to both states’ recently passed temporary worker rights bills.

In New Jersey, a federal court in late July denied the staffing industry’s motion to enjoin the Temporary Workers’ Bill of Rights Law enacted by the legislature earlier this year. The law, which applies to construction, light industrial, and other workers—but not professional or clerical workers—mandates temporary employee wages and benefits equivalent to those received by client employees performing similar work, limits conversion fees, and prohibits agencies from charging a fee for providing transportation, among other things.

Despite finding that the law likely will result in irreparable harm to many staffing firms, the court held that the industry’s arguments that the law is unconstitutional were unlikely to succeed at trial. In response to the court’s ruling, the group that brought the original lawsuit—the American Staffing Association; the New Jersey Staffing Alliance, an ASA-affiliated chapter; and the New Jersey Business and Industry Association—have filed a notice of appeal in the U.S. Court of Appeals for the Third Circuit appealing the district court’s denial of the parties’ request for a preliminary injunction. The parties will ask the Third Circuit to stay the district court’s action and enforcement of the statute while the appeal is pending.

Illinois Gov. J.B. Pritzker signed HB 2862, legislation that amends the Illinois Day and Temporary Labor Services Act to provide that temporary employees must be paid the same or similar pay and benefits received by equivalent direct hire employees after working for more than 90 calendar days for a client, among other things. ASA and its Illinois lobbyist Paul Rosenfeld met with legislators and secured modifications that significantly mitigate the impact of the amendments. ASA has submitted a letter to Gov. Pritzker urging the Illinois Department of Labor to delay implementing the law until final regulations are adopted with input from ASA and the Illinois Search and Staffing Association, an ASA-affiliated chapter.