New Jersey Staffing Alliance v. CARI FAIS, Acting Director of the New Jersey Division of Consumer Affairs in the…

PRECEDENTIAL
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
____________

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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

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____________
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,

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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 an impermissible price-setting measure that, in
practice, disadvantages out-of-state customers. The Staffing
Associations further alleged that Section 7(b) is void for
vagueness because it does not define “benefits” or “same or
substantially similar work.” Finally, they claimed the Act is an
unreasonable exercise of state police power.
The Staffing Associations argued that the economic
burdens imposed by the Act threaten their members’ existence.
The District Court agreed that the businesses would be
irreparably harmed by the Act, but it denied the preliminary
injunction motion after concluding that the Staffing
Associations were unlikely to succeed on the merits of their
arguments.
The Associations were not likely to succeed, the District
Court reasoned, because “[t]here is simply nothing
discriminatory about the Act” and because “every burden
imposed upon out-of-state businesses is likewise imposed on
New Jersey businesses.” N.J. Staffing All., 2023 WL 4760464,

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at *10. The Court explained that, “[i]n fact, out-of-state
staffing agencies are in some sense advantaged over New
Jersey businesses” because out-of-state staffing firms can hire
labor at a lower cost for out-of-state customers. Id.
The District Court also found no likelihood of success
on the void for vagueness claim. It reasoned that the Staffing
Associations’ nuanced argument on the meaning of Section
7(b) was a “tacit[] admi[ssion] that they know exactly the sort
of relevant factors that ought to be considered” in interpreting
the Act’s requirements, even if “Section 7 does not tell [the
Associations] explicitly which factors are most important or
how they should be weighed.” Id. at *12 (citation omitted). The
District Court also noted that the New Jersey Department of
Labor had issued proposed regulations for the Act to clarify
Section 7(b), but concluded that Section 7(b) “would not be
unconstitutionally vague on its face” even without the
proposed regulations. Id. at *13 & n.16.
Finally, the District Court found the Staffing
Associations were unlikely to succeed on their claim that the
Act is an unreasonable exercise of state police power.
Applying rational basis review, the Court concluded that the
Act was a permissible exercise of New Jersey’s police power
because it furthers New Jersey’s legitimate state interest in
protecting temporary workers. This timely appeal followed.
II1
A preliminary injunction will issue only if a party shows
a likelihood of success on the merits. Ferring Pharms., Inc. v.
1 The District Court had jurisdiction under 28 U.S.C. § 1331,
and we have jurisdiction under 28 U.S.C. § 1292(a)(1). We

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Watson Pharms., Inc., 765 F.3d 205, 210 (3d Cir. 2014). We
agree with the District Court that the Staffing Associations
failed to show they were likely to succeed on any of their three
claims.
A
In National Pork Producers Council v. Ross, 598 U.S.
356 (2023), published less than one week after the
Associations filed their initial complaint, the Supreme Court
synthesized decades of dormant Commerce Clause
jurisprudence into a few key principles. Chief among them is
that economic “antidiscrimination . . . lies at the very core of
[the Court’s] dormant Commerce Clause jurisprudence.” Id. at
369 (cleaned up). Although several prior dormant Commerce
Clause opinions focused on the extraterritorial effect of
challenged laws, the Court explained that those cases were still
animated by the antidiscrimination principle. Id. at 371. After
all, “a law’s practical effects may also disclose the presence of
a discriminatory purpose.” Id. at 377.2 Accordingly, as both the
review the District Court’s factual findings for clear error, its
legal conclusions de novo, and its order denying the
preliminary injunction for abuse of discretion. See
Pyrotechnics Mgmt., Inc. v. XFX Pyrotechnics LLC, 38 F.4th
331, 335 (3d Cir. 2022).
2 The Court framed this principle as a central tenet of Pike v.
Bruce Church, Inc., 397 U.S. 137, 142 (1970). The Justices
splintered on how broadly to read Pike, but we need not
consider those disagreements because the Staffing
Associations do not rely on Pike’s “practical effects” test for
discrimination. Rather, they cite Pike to advocate for the very
“extraterritoriality doctrine” that National Pork Producers

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plurality opinion and the principal dissent concluded, the
dormant Commerce Clause does not create a per se rule against
state laws with extraterritorial effect. See id. at 373–74
(plurality opinion). See also id. at 394 (Roberts, C.J.,
concurring in part and dissenting in part). Rather, it “prohibits
the enforcement of state laws driven by . . . economic
protectionism—that is, regulatory measures designed to
benefit in-state economic interests by burdening out-of-state
competitors.” Id. at 369 (cleaned up).
To illustrate how “protectionism [takes] center stage,”
National Pork Producers discussed three cases in which States
implemented price-control laws that “operated like a tariff or
customs duty.” Id. at 372 (cleaned up) (discussing Baldwin v.
G. A. F. Seelig, Inc., 294 U.S. 511 (1935), Brown-Forman
Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573
(1986), and Healy v. Beer Inst., 491 U.S. 324 (1989)). In
Baldwin, the earliest of these cases, New York laws “barred
out-of-state dairy farmers from selling their milk in the State
‘unless the price paid to’ them matched the minimum price
New York law guaranteed in-state producers.” Nat’l Pork
Producers, 598 U.S. at 371–72 (quoting Baldwin, 294 U.S. at
519). The Court held that this discriminatory scheme violated
the dormant Commerce Clause because it “deliberately robbed
out-of-state dairy farmers” of the ability to leverage any
competitive advantages over New York milk sellers stemming
from “lower cost structures [or] more productive farming
practices.” Id. at 372.
In the two subsequent cases, the laws linked “the price
of . . . in-state products to out-of-state prices” through price
affirmations. Id. at 374 (quoting Pharm. Rsch. & Mfrs. of Am.
rejected. See Staffing Associations Br. 15, 20.

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v. Walsh, 538 U.S. 644, 669 (2003)). “In Brown-Forman, New
York required liquor distillers to affirm (on a monthly basis)
that their in-state prices were no higher than their out-of-state
prices,” id. at 372 (citing Brown-Forman, 476 U.S. at 576),
while in Healy “a Connecticut law required out-of-state beer
merchants to affirm that their in-state prices were no higher
than those they charged in neighboring States,” id. (citing
Healy, 491 U.S. at 328–30). The Supreme Court reasoned that
these laws violated the dormant Commerce Clause because the
States were trying to “hoard commerce for the benefit of in-
state merchants and discourage consumers from crossing state
lines to make their purchases from nearby out-of-state
vendors.” Id. at 372–73 (cleaned up).
In this appeal, the Staffing Associations do not claim the
New Jersey legislature designed the Act to purposefully
discriminate against out-of-state businesses. Instead, they liken
the Act to the price-setting measures in Baldwin, Brown-
Forman, and Healy and argue it is a “minimum pricing”
measure that operates like “a tariff on the labor sent out-of-
state.” Staffing Associations Br. 19. We are unpersuaded.
We disagree with the Associations because the Act
bears little resemblance to the laws at issue in Baldwin, Brown-
Forman, and Healy. In those cases, the laws preferred in-state
merchants by imposing price restrictions that applied only to
out-of-state merchants. In contrast, the Act neither selectively
imposes economic burdens on out-of-state staffing firms nor
gives in-state firms an economic advantage. Rather, the Act
imposes uniform wage restrictions on all firms doing business
in New Jersey. And while the wage provision indirectly affects
prices, it does not prevent out-of-state firms from “charg[ing]
lower prices” than their New Jersey counterparts “thanks to

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whatever . . . competitive advantage they might have.” Nat’l
Pork Producers, 598 U.S. at 372 (cleaned up).
Nor does the Act impose a tariff when New Jersey
staffing firms send labor out of the State. Labor costs will vary
depending on the average wage that each individual
customer—regardless of location—pays its permanent
employees for similar work. See N.J. Stat. Ann. § 34:8D-7(b).
So if the average wage of a Pennsylvania client is lower than
the average wage of a New Jersey client, staffing firms may
reduce their prices accordingly.
The dormant Commerce Clause also precludes
“attempts to give local consumers an advantage over
consumers in other States.” Brown-Forman, 476 U.S. at 580
(emphasis added) (citation omitted). Consistent with that
principle, the Staffing Associations argue that the “Act
disadvantages out-of-state [customers seeking to hire staffing
firms] by limiting their ability to negotiate the best pricing
between [staffing firms] in” New Jersey as compared to their
home States. Staffing Associations Br. 19. We disagree. Out-
of-state customers seeking labor will not inevitably pay more
for labor than in-state customers because of the Act, and both
are subject to the same wage-driven limits on the prices that
New Jersey staffing firms will offer them.
Indeed, the Act imposes a less onerous burden on out-
of-state customers because they can simply hire out-of-state
staffing firms that are not subject to the Act. In contrast, New
Jersey customers cannot avoid the Act by utilizing out-of-state
firms because the Act applies to any staffing firm that does
business in New Jersey. See N.J. Stat. Ann. § 34:8D-1. Thus,
unlike the laws in the price-setting cases, the Act does not
economically favor in-state firms or customers over their out-

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of-state counterparts. See Nat’l Pork Producers, 598 U.S. at
374 (cleaned up).
Finally, the Staffing Associations emphasize the
extraterritorial effects of the Act, explaining that out-of-state
customers will be subject to the Act when hiring New Jersey
firms because the Act imposes joint and several liability. But
again, the dormant Commerce Clause does not prohibit laws
solely because they have extraterritorial reach absent
protectionist intent or effect. See id. at 373 (plurality). See also
id. at 394 (Roberts, C.J., concurring in part and dissenting in
part). And the Associations do not explain how uniformly
applying joint and several liability to all customers, regardless
of location, is “designed to benefit in-state economic interests
by burdening out-of-state competitors.” Id. at 369 (cleaned up).
In sum, the Act applies equally to in-state and out-of-
state staffing firms and customers. New Jersey has passed the
Act to protect temporary workers. In doing so, the State is,
according to the District Court, irreparably harming the
Staffing Associations and their members. But whatever the
policy ramifications of the State’s decision, nothing in the Act
discriminates against out-of-state firms or consumers. The
legislative winners here are New Jersey’s temporary workers,
and the losers are New Jersey staffing firms.3 So the District
3 We are not swayed by the Associations’ assertion that the Act
creates a risk of price gridlock. See Reply Br. 4–5 (quoting
Healy, 491 U.S. at 339–40). They hypothesize that
Pennsylvania could retaliate by mandating that its workers “be
paid more than . . . New Jersey temporary workers.” Staffing
Associations Br. 15. But the question under the dormant
Commerce Clause is whether New Jersey’s law “benefit[s] in-
state economic interests by burdening out-of-state

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Court did not err by finding the Associations are unlikely to
succeed on their dormant Commerce Clause claim.
B
The Staffing Associations next claim that Section 7(b)
is void for vagueness because it does not define “benefits” or
“same or substantially similar work.” We are unpersuaded.
“[C]ivil statutes that regulate economic activities” must
give businesses “fair notice” of the law’s requirements. Fed.
Trade Comm’n v. Wyndham Worldwide Corp., 799 F.3d 236,
250 (3d Cir. 2015). Businesses, after all, “face economic
demands to plan behavior carefully, [and] can be expected to
consult relevant legislation in advance of action” to ensure
regulatory compliance. Vill. of Hoffman Ests. v. Flipside,
Hoffman Ests., Inc., 455 U.S. 489, 498 (1982). The presence of
“some ambiguities” does not prevent enforcement of an
economic regulation; rather, it is void for vagueness only if it
is “so vague as to be no rule or standard at all.”
CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 631–
32 (3d Cir. 2013) (cleaned up).
Section 7(b) mandates equal pay between temporary
workers and permanent employees who perform the “same or
competitors,” Nat’l Pork Producers, 598 U.S. at 369 (cleaned
up)—not how other States may respond to the law. And while
the Supreme Court did discuss the risk of price gridlock in
Healy, it did so only after concluding that the challenged law
violated the dormant Commerce Clause. See Healy, 491 U.S.
at 339–40. Because the law was protectionist, the Court
reasoned that price gridlock could follow if multiple states
“enacted . . . essentially identical” laws. Id. at 339.

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substantially similar work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are
performed under similar working conditions.” N.J. Stat. Ann.
§ 34:8D-7(b). The language of the Act resembles that of the
federal Equal Pay Act, which prohibits sex-based pay
discrimination against employees performing “equal work on
jobs the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working
conditions.” 29 U.S.C. § 206(d)(1). In drafting the Equal Pay
Act, Congress was concerned that “equal work” by itself was
vague, so “the concepts of ‘skill,’ ‘effort,’ ‘responsibility,’ and
‘working conditions’” were added to define the phrase. See
Corning Glass Works v. Brennan, 417 U.S. 188, 199–200, 01
(1974). So too here, the Act defines “substantially similar
work” by listing the same considerations. Though this
definition contains “some ambiguities,” it is not “so vague as
to be no rule or standard at all.” CMR D.N. Corp., 703 F.3d at
631–32 (cleaned up). In other words, though reasonable minds
may differ as to what constitutes “equal skill, effort, and
responsibility” or “similar working conditions,” these criteria
provide sufficient guideposts for us to conclude that the
Staffing Associations have fair notice of the Act’s
requirements.
The word “benefits” in Section 7(b) is not
impermissibly vague either. While the Act does not provide a
comprehensive list of “benefits,” we conclude that “business
people of ordinary intelligence in the [Staffing Associations’]
position . . . would be able to know what” the word means “as
a matter of ordinary commercial knowledge.” McGowan v.
Maryland, 366 U.S. 420, 428 (1961). The Associations
demonstrated as much in their brief on appeal: they showed a
general understanding of what “benefits” encompasses when

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raising specific workability concerns on issues like 401(k)
waiting periods and employees who decline employer-
sponsored healthcare.
Finally, we agree with the District Court that “Plaintiffs,
their members, and their members’ third-party partners have
been abiding by . . . [both federal and state] laws [using similar
language] for decades. In short, although the application to
temporary workers is novel, they know how to do this.” N.J.
Staffing All., 2023 WL 4760464, at *12; see, e.g., N.J. Stat.
Ann. § 10:5-12 (establishing safeguards for employees
belonging to a protected class and using language nearly
identical to the Act: “substantially similar work, when viewed
as a composite of skill, effort and responsibility”); 29 U.S.C.
§ 206(d)(1) (prohibiting sex-based pay discrimination against
employees performing “equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and which
are performed under similar working conditions”); N.J. Stat.
Ann. § 10:5-12(t) (prohibiting companies from paying
employees in a protected class “at a rate of compensation,
including benefits, which is less than the rate paid” to
employees who are not in a protected class) (emphasis added).
Indeed, by identifying the relevant considerations when
applying Section 7(b) and contesting the precise parameters of
its terminology, the Associations have inadvertently
demonstrated that the Act is not “so vague as to be no rule or
standard at all.” CMR D.N. Corp., 703 F.3d at 632 (cleaned
up).
C
Finally, we turn to the Staffing Associations’ police
power challenge. State police power “extends beyond health,
morals and safety, and comprehends the duty, within

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constitutional limitations, to protect the well-being . . . of a
community.” Kovacs v. Cooper, 336 U.S. 77, 83 (1949). We
apply rational basis review to a State’s exercise of its police
power. See Nat’l Ass’n for Advancement of Colored People v.
City of Philadelphia, 834 F.3d 435, 442 (3d Cir. 2016).
The Associations concede that New Jersey has a
legitimate interest in protecting temporary workers but argue
the State’s method of doing so is “[u]nreasonable.”4 Staffing
Associations Br. 33. The Act seeks to “further protect the labor
and employment rights of these workers,” N.J. Stat. Ann.
§ 34:8D-1(d), by mandating increased disclosures on wages,
id. § 34:8D-6, more transparency on working conditions, id.
§ 34:8D-3, prohibitions on employer fees for work-related
transportation, id. § 34:8D-5, and wage equality between
temporary workers and permanent employees, id. § 34:8D-
7(b). The provisions just reviewed are rationally related to the
State’s interest in protecting temporary workers. So the District
Court did not err in finding the Associations failed to show a
likelihood of success on the merits of their police power
challenge.
III
We agree with the District Court that the Staffing
Associations are unlikely to succeed on the merits of any of
4 The Associations also contend the Act “in effect makes
temporary workers a suspect classification.” Staffing
Associations Br. 35–36. But even if it does, legislation “will be
sustained if the classification drawn by the statute is rationally
related to a legitimate state interest.” City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 440 (1985) (citations
omitted).

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their challenges to the Act. So the request for an injunction was
properly denied. We will affirm.

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