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.

Earlier this week, ASA staff met with U.S. Secretary of Labor Marty Walsh and Kevin Gallagher, senior adviser to U.S. Secretary of Commerce Gina Raimondo. The introductory meetings focused on the importance of the staffing industry to the U.S. economy as well as the role ASA members have played during the Covid-19 pandemic.

ASA staff apprised Secretary Walsh of the many opportunities the staffing industry offers the U.S. workforce, including flexibility and choice. Secretary Walsh noted his past dealings with the industry when he was a state legislator and the important role that staffing companies play.

Gallagher also was familiar with the industry through his previous role as deputy chief of staff for then-Rhode Island Gov. Raimondo, and noted the industry’s commitment to worker training and upskilling. Both Walsh and Gallagher suggested that this should be the first of several meetings between the staffing industry and their agencies as the economy continues to recover from the pandemic.

Learn more about ASA’s ongoing advocacy efforts on behalf of the staffing industry.

After years of effort by ASA, the Ohio Staffing & Search Association (an ASA-affiliated chapter), and allies in the Ohio Chamber of Commerce, the Ohio legislature quietly and without public fanfare repealed the state sales tax on employment services. The repeal provision, which was part of a massive state budget bill, was signed into law by Gov. Mike DeWine on June 30. The repeal becomes effective on the 91st day following enactment.

Special thanks to Tom Erb and Larry Kidd, longtime ASA members and industry leaders in Ohio, who spearheaded the final push that resulted in the win. ASA has long argued that, by increasing the cost of staffing services, the tax had an adverse effect on jobs and a negative ripple effect throughout the state economy. The influx of money flowing to the state from the American Rescue Plan Act, which Congress passed earlier this year, is believed to have mitigated lawmakers’ concerns about the loss of tax revenue that historically has been an obstacle to repeal.

As the California legislature approached its deadline for moving bills from the house of origin to the second house, advocacy efforts led by ASA, its affiliated chapter California Staffing Professionals, and California lobbyist Mike Robson of Edelstein Gilbert Robson & Smith LLC were instrumental in derailing two California bills that would have had a major negative impact on the staffing industry.

AB 650 would have required covered employers, including health care staffing agencies, to pay hazard pay retention bonuses in 2022. AB 1192 would have required large employers to annually collect and submit wage and other worker-related statistics to the Labor and Workforce Development Agency.

The staffing industry worked with several business groups and trade associations, including the California Hospital Association, in opposing AB 650, urging lawmakers to reject the bill due to its cost implications. Regarding AB 1192, ASA and CSP argued that, given the varying nature of temporary assignments, temporary worker wage and other metrics submitted by staffing agencies would be misleading.

Following weeks of discussions and negotiations, both AB 650 and AB 1192 were moved to the inactive file, meaning they will not be taken up this year. Both bills can be reconsidered during the 2022 legislative session and ASA will re-engage if necessary next year.