UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 23-2419 ___________

NEW JERSEY STAFFING ALLIANCE; AMERICAN STAFFING ASSOCIATION; NEW JERSEY BUSINESS & INDUSTRY ASSOCIATION, Appellants

v.

CARI FAIS, Acting Director of the New Jersey Division of Consumer Affairs in the Department of Law and Public Safety; STATE OF NEW JERSEY; ROBERT ASARO-ANGELO, Commissioner of Labor and Workforce Development; NEW JERSEY DIVISION OF CONSUMER AFFAIRS IN THE DEPARTMENT OF LAW AND PUBLIC SAFETY; NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT

____________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 1-23-cv-02494) District Judge: Honorable Christine P. O’Hearn ____________ Argued on June 4, 2024

Before: HARDIMAN, PORTER, and AMBRO, Circuit Judges.

(Filed: July 24, 2024)

Steven B. Harz David L. Menzel Rubin M. Sinins [Argued] Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins 505 Morris Avenue Suite 200 Springfield, NJ 07081 Counsel for Appellants Matthew J. Platkin Jeremy M. Feigenbaum Angela Cai Mayur Saxena Nathaniel I. Levy [Argued] Jessica L. Palmer Eve Weissman Marc D. Peralta Ashleigh B. Shelton Lauren E. Van Driesen Office of the New Jersey Attorney General Richard J. Hughes Justice Complex 25 Market Street, P.O. Box 080 Trenton, NJ 08625 Counsel for Appellees

2 ____________

OPINION OF THE COURT ____________

HARDIMAN, Circuit Judge.

This interlocutory appeal was filed by the New Jersey Staffing Alliance, the American Staffing Association, and the New Jersey Business and Industry Association (collectively, the Staffing Associations or Associations). In the District Court, the Staffing Associations sought to enjoin a New Jersey law passed to provide certain temporary workers with labor protections. The District Court denied the injunction and the Staffing Associations appealed. We will affirm.

I

In 2023, New Jersey passed the Temporary Workers’ Bill of Rights (the Act). N.J. Stat. Ann. § 34:8D-1 et seq. As its name suggests, the point of the Act is to protect temporary workers. To do so, the Act mandates recordkeeping and disclosure requirements and state certification procedures. See id. Some provisions also impose joint and several liability on clients who hire the staffing firms that provide them with temporary workers. See, e.g., id. § 34:8D-7(d).

Section 7(b) of the Act creates new wage rules for temporary workers. It obliges staffing firms to pay temporary workers at least “the average rate of pay and average cost of benefits, or the cash equivalent thereof, of employees of the third party client performing the same or substantially similar work on jobs the performance of which requires equal skill,

3 effort, and responsibility, and which are performed under similar working conditions.” Id. § 34:8D-7(b). Simply stated: staffing firms must peg their wages to the average wage of a permanent employee performing similar work at the client company. To comply with this provision, New Jersey staffing firms must obtain their customers’ pay and benefits data.

The Staffing Associations sued New Jersey and various state agencies, alleging that the Act violates the dormant Commerce Clause. N.J. Staffing All. v. Fais, 2023 WL 4760464, at *4 (D.N.J. July 26, 2023). They alleged that the increased labor costs and the need for customers to disclose wage and benefits data will make New Jersey staffing firms less competitive. They also claimed that the wage provision in Section 7(b) is