What is a “staffing agency” which is subject to the TWRTKL?
A “staffing agency” is defined by M.G.L. c. 149, § 159C as: “an individual, company, corporation, or partnership that procures or provides temporary or part-time employment to an individual who then works under the supervision or direction of a worksite employer.” Agencies which place or send individuals to work site employers are considered “staffing agencies” subject to the TWRTKL.
Must staffing agencies continue to be licensed or registered with DLS?
Yes. M.G.L. c. 140, sec. 46A-46R, the Employment Agency Law, mandates that agencies be either licensed or registered by DLS, as well as inspected by DLS compliance officers. This process will continue as the TWRTKL does not change the Employment Agency Law.
What information must a staffing agency provide to a job applicant or worker under the TWRTKL?
The law requires staffing agencies to provide employees with notice of basic information before going to a job, such as the staffing agency’s contact information; workers’ compensation carrier; the rate of pay for the job and the designated pay day; shift start and end time; details related to any meals or transportation; whether the position requires special clothing, tools, licenses, or training; whether the job site is on strike or lockout, and the name and address of the worksite employer. Job information may be given over the telephone as long as it is confirmed in writing before the end of the first pay period. A job order form with all required information may be accessed by clicking HERE. Staffing agencies are advised that a job order form must be completed in its entirety in order to comply with the TWRTKL.
Are there exceptions to the notice (job order) requirement?
Yes. The notice requirement does not apply to “professionals,” “secretaries or administrative assistants.” The definition of “professionals” who are not required to be provided the notice is defined as follows: An employee as defined in 29 U.S.C. Section 152 (a). “Any applicant or worker engaged in work (1) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work, (2) involving the consistent exercise of discretion and judgment in its performance, (3) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time, and (4) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual or physical processes or any employee, who (i) has completed the courses of specialized intellectual instruction and study described in clause (4) of this subparagraph, and (ii) is performing related work under the supervision of a professional person to qualify himself to become a professional employee as defined in clauses (1) to (4) of this subparagraph.” Examples of “professional employees” include: lawyers, doctors, dentists, teachers, architects, registered nurses (but not LPNs), accountants (but not bookkeepers), engineers who have engineering degrees or the equivalent, actuaries, scientists (but not technicians), and pharmacists.
“Secretaries or administrative assistants” who are not required to be provided the notice is defined as follows: a worker whose main or primary duties involve 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.
What if the information contained in the job order changes?
Any changes to the terms of employment or assignment contained in the job order shall be confirmed and provided to the job applicant or worker, prior to the end of the first pay period. The staffing agency shall obtain from the job applicant or worker acknowledgement that the job applicant or worker understands and agrees to the changes. A staffing agency may satisfy the requirements of this subparagraph by having the work site employer hand the job order to the job applicant or worker. However, the staffing agency shall remain fully responsible for compliance with all job order requirements under the TWRTKL.
Does my agency have to use the job order form provided by DLS? What if we want to make our own form to use?
Staffing agencies are advised to use the job order form provided by DLS to ensure compliance with the TWRTKL by providing legally required information to workers. However, staffing agencies may use their own form, as long as all required information under the TWRTKL is provided.
What happens if we send a job applicant/worker to a worksite but no work is available?
Staffing agencies must refund reasonable transportation costs if they send a temporary worker to a job that does not exist. This does not include the transportation costs of being sent to a worksite for a job interview.
What type of notice must a staffing agency post at its office locations?
Staffing agencies must post a multi-lingual notice of the workers’ rights provided under this law, as well as the DLS’ contact information in a visible location at each of its office locations, in a form provided by the DLS. The DLS notice may be obtained by downloading the poster( Notice of Temporary Workers’ Rights under the TWRTK ). Alternatively, DLS will mail a poster to a staffing agency upon request. No substitute posting is permitted under the TWRTKL.
Does the TWRTKL regulate fees that a staffing agency or worksite employer may charge workers and job applicants?
Yes, the TWRTKL prohibits a staffing agency or worksite employer from charging job applicants or workers fees for the following:
- The cost of registering with the staffing agency or procuring employment
- The provision of a drug screen, bank/debit card or other form of payment that exceeds the actual cost per applicant
- A CORI request (Massachusetts criminal offender record information provided by the Department of Criminal Justice Information Services)
- All transportation costs (except those provided for below)
- Any good or service (unless done under the terms of a written contract that makes clear that it is voluntary and for which the staffing agency will not profit from the fee charged)
- Any good or service that would cause the applicant or employee to earn less than the minimum wage.
- Transportation costs cannot be more than the actual cost of the transportation, exceed 3% of total daily wages, or reduce wages below minimum wage. Additionally, if specific transportation services are required, no fees can be charged.
The law does not regulate fees that staffing agencies can charge to clients/worksite employers for their services.
Aside from not charging certain fees, are there other activities that staffing agencies are not allowed to do under the TWRTK Law?
Yes. Staffing agencies are prohibited from engaging in certain activities. Under the law, staffing agencies may not:
- Knowingly provide false, fraudulent, or misleading information to job applicants or workers;
- Use any name that they have not registered with DLS;
- Assign or place a job applicant or worker by force, 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;
- Assign or place a job applicant or worker at any location that is on strike or lockout without notifying the employee of this fact;
- Refuse to return personal belongings or excessive fees or charges to a job applicant or worker upon request by the worker; or
- Retaliate against a job applicant or worker for exercising his or her rights under the TWRTKL.
Should staffing agencies maintain records of the requirements of the TWRTKL?
Yes. Staffing agencies should keep the following records:
Applicant records. Staffing agencies should maintain a separate file for each accepted job applicant or worker for placement, referral, or assignment which contains the following information:
(a) his/her name and address;
(b) dated job application, or resume;
(c) name and address of a professional or personal reference;
(d) the Job Order
(e) client work order listing the name and address of the work site employer to whom the staffing agency has referred, placed, or assigned the job applicant or worker;
(f) anticipated wages or rate of compensation for the client work order;
(g) anticipated duration of assignment;
(h) total fees to be paid by the job applicant to the staffing agency, if any; and
(i) transportation arrangements and related charges, if any; and
(j) other charges, if any.
Client records. Staffing agencies should maintain a separate file for each work site employer to whom job applicants or workers are referred or assigned, which should, at a minimum, contain the following information:
(a) each client’s name and address;
(b) the date when services of the staffing agency were requested;
(c) the names of the job applicants or workers sent;
(d) the total amount of the fee received or charged to the client; and
(e) the rate of salary or wages agreed upon.
What happens if I violate the TWRTK Law?
Violations of this law can result in civil fines up to $15,000 or $25,000 for willful violations and will be prosecuted by the Office of the Attorney General’s Fair Labor Division.
What if I have further questions about the TWRTK Law now or at any point in the future?
For further information about the TWRTKL, interested parties may call DLS at (617) 626-6970.