August 11, 2023
Recent Illinois Law Places New Obligations on Staffing Agencies and Employers Who Utilize Temporary Labor
In June, the Illinois Legislature amended the Day and Temporary Labor Services Act, those amendments have now gone in effect following Governor Pritzker’s signature on August 4, 2023. The Act places new responsibilities on both temporary staffing agencies and their clients who hire temporary laborers (defined as “third party clients”). The Act excludes “clerical or professional” workers from the definition of temporary laborers.

The most notable changes include the right for temporary laborers who have worked at a client for more than 90 days to earn equal pay and benefits as their direct-hire counterparts, and several new written notice and safety requirements. 
Staffing Agency Obligations
Client Obligations
Equal Pay for Equal Work:
 
Temporary laborers assigned to work at a client for more than 90 days are entitled to “equal pay for equal work,” meaning the laborer is to receive the same pay and equivalent benefits “as the lowest paid directly hired employee” of the client who has the same level of seniority and performs the same/similar work as the direct hire. If there is no comparable directly hired employee, the laborer’s pay and benefits are to be at least equal to the pay and benefits of the lowest paid direct hire with the closest level of seniority to the laborer.
 
The agency may pay the hourly cash equivalent of the actual cost of benefits instead of offering benefits to the laborer. The agency may request the job duty, pay, and benefits information necessary to comply with the Act from a client, and the client is obligated to provide the information. Should the client refuse the information, the agency has recourse to bring suit under the Act.
Equal Pay for Equal Work:
Upon request, a client who has had an assigned laborer for more than 90 days must provide the agency with information necessary to determine the job duties, pay, and benefits of the client’s directly-hired employees so the agency can comply with the Act.
 
Failure of the client to provide the necessary information is a violation under the Act.
Safety Notice Requirements:
 
Before a staffing agency assigns a laborer to a worksite, it must: 
 
1)   Inquire about the client’s safety and health practices, including any hazards at the workplace to assess the safety conditions and programs, and the laborer’s tasks.
  • The Act allows an agency to visit the client’s worksite to make this assessment.
  • If, at any time, the agency becomes aware of unmitigated job hazards, it has a duty to make the client aware of the hazard, urge the client to address the hazard, and document this process. Alternatively, the agency must remove the laborer from the worksite.
2)   Provide training to the laborer for general safety for “recognized industry hazards” the laborer may encounter at a client’s worksite. The training must be in the laborer’s preferred language and offered free of charge.
3)   Send a description of its training program to the client in writing at the beginning of the contract between the agency and the client.
4)   Provide the Illinois Department of Labor’s hotline number for the laborer to call and report safety hazards and concerns.
5)   Inform the laborer that he/she should report any safety concerns to the client.
Safety Notice Requirements:
 
Before a laborer begins work for a client, the client must: 

1)   Inform the laborer and agency about anticipated job hazards likely to be encountered by the laborer and document this process.
2)   Review the safety and health awareness training the agency provides to the laborer to assess its adequacy given the client’s industry.
3)   Provide specific training to the laborer regarding particular hazards at the client’s worksite.
4)   Document and retain records of site-specific training and provide confirmation that the training occurred to the agency within 3 days of the training being provided.
 
If the client changes the job tasks or work location of the laborer, and the change poses potential new hazards, the client must inform the laborer and agency of the change of job hazards not previously identified before the laborer begins the new tasks. The client must also provide updated training and protective equipment related to the new tasks or location.
  • The laborer or agency may refuse a new job task where the task has not been reviewed or if the laborer has not received proper training for the new task.
 
The client must allow an agency to visit a worksite where a laborer is working so the agency can confirm the client’s training and information regarding job tasks, safety and health practices, and hazards is accurate.
Written Notice of Job Strikes, Lockouts, or “Other Labor Trouble:”
 
An agency must provide written notice, in a language the laborer understands, to the laborer informing him/her of the existence of a “strike, lockout, or other labor troubles” at a client before or at the time the laborer is dispatched to the client.
 
The notice must inform the laborer of his/her right to refuse the assignment without prejudice to receiving another assignment from the agency.
 
Each violation of this notice provision (and its specific requirements) is a separate and distinct violation of the Act, and will open an agency up to the penalties.
Penalties

The Act increases penalties for violations, and allows for an “interested party” to file suit against an agency or client for violations.

An agency or company that violates the Act will be subject to a civil penalty of not less than $100 and not more than $18,000 for a first violation. Additional violations within three years of the first will expose the agency or client to a penalty of not less than $250 and not more than $7,500 for each repeat violation.

A civil penalty of not less than $100 and not to exceed $1,500 may be assessed for a client’s violation of the work verification form requirement. The same fine is available for a client who contracts with an agency that is not registered with the Illinois Department of Labor.
The Act also now allows for an “interested party” to bring suit against an agency or client it believes is in violation of the Act. An interested party is “an organization that monitors or is attentive to compliance with public or worker safety laws, wage and hour requirements, or other statutory requirements.”

If an interested party reasonably believes an agency or client has violated the Act, it must submit a complaint to the Illinois Department of Labor, who will then provide notice and an opportunity to contest or cure the alleged violation. Regardless of the outcome at the administrative level, the Department of Labor will issue a right to sue letter. If an interested party prevails in court, it is entitled to 10% of the statutory penalties assessed, as well as attorney’s fees and expenses incurred.
Takeaways

With the changes to the Act having gone into effect, staffing agencies and their clients should:
  • Review and update their policies and practices to align with the Act’s new requirements.
  • Work together to assure they are meeting the Act’s new requirements.
  • Assure that any confidential information is protected by agreement. 
Burke Warren attorneys can help you navigate these new changes. For more information contact attorneys Blake Roter
by email at broter@burkelaw.com
or phone at 312-840-7116 or Brittany Martin by email at bmartin@burkelaw.com or phone at 312-840-7094.