On Aug. 4, Illinois Governor J.B. Pritzker signed HB 2862, which takes effect immediately. The bill substantially amends the Day and Temporary Labor Services Act, 820 ILCS 175 (the “Act”). The amendments provide expanded rights for qualified temporary and day workers, in addition to requiring increased safety oversight by temporary labor service (staffing) agencies and their third-party clients (“clients”) that utilize day and temporary workers. These amendments will also increase penalties for violations. Notably, the amendments also contain an equal-pay-for-equal-work provision guaranteeing that temporary workers who work more than 90 days for a client must be paid wages and benefits equal to comparable employees directly hired by the client.
The bill is expected to cover most of the estimated 650,000 temporary and day workers in Illinois, as only “employment of a clerical and professional nature” is excluded. Additionally, a labor agency is defined as an “entity engaged in the business of employing day or temporary laborers to provide services, for a fee, to or for any client pursuant to contract with the [labor agency] and the third party client.” Illinois is now the second state in the nation to require that the pay for temporary laborers equal the pay and benefits of their non-temporary counterparts. Illinois now follows suit with New Jersey’s first equal pay mandate. The New Jersey Act took effect on Aug. 5.
Equal Pay for Equal Work Provisions
The amendments require that temporary workers assigned to a client for more than 90 days must be paid at least the rate of pay and provided the equivalent benefits as directly hired, comparative employees. A “comparative employee” is an employee with the “same level of seniority at the company and performing the same or substantially similar work on jobs the performance of which requires substantially similar skill, effort, and responsibility, and that are performed under similar working conditions.”
Upon request, clients must provide agencies “all necessary information related to the job, duties, pay, and benefits of directly hired employees.” Failure by a client to provide the requested information will amount to a notice violation.
Safety
The amendments mandate safety requirements for staffing agencies. These include having to “inquire about the client company’s safety and health practices and hazards at the actual workplace” where the laborer is working. Additionally, an agency is required to provide safety training to the laborer for “recognized industry hazards.” Agencies must also inform of and describe the training provided at the start of a contract with a client company. The training should include instructions on reporting safety concerns and must provide laborers with the Illinois Department of Labor’s hotline.
In the same vein, a client company must document and inform the agency about any anticipated job hazards and review the safety training provided by the agency to ensure adequacy. The client company is also obligated to provide the laborer with specific training, which is to be “tailored to the particular hazards at the client company’s worksite” and provide the staffing agency notice upon completion.
Refusal of Assignments to Certain Client Locations
Under the new amendments, a worker can refuse work at a location where a labor dispute exists. A labor agency may not send a worker to a client where a labor dispute, such as a strike or lockout, without informing the worker. “Informing,” within the meaning of the Act, must be in writing in a language that the day and temporary laborer understands, and detail the dispute. This disclosure must also state that the day or temporary laborer’s right to refuse the assignment is without prejudice to receive another assignment. Failure by a labor agency to do so will amount to a notice violation under the Act. Failure to provide each piece of information will amount to a separate and distinct violation.
Independent Cause of Action for “Interested Parties”
The amendments now create a cause of action for any “interested party” to file suit against violating agencies or clients. An “interested party” is defined as “an organization that monitors or is attentive to compliance with public or worker safety laws, wage and hour requirements, or other statutory requirements. While this amendment does not make clear who will qualify as an “interested party,” organizations like the Illinois Department of Labor (the “Department”) and the OSHA Administration may fit the definitional requirements. The cause of action is premised on an interested party’s “reasonable belief” that a day or temporary service agency or client is in violation of any part of the Act. An “interested party” who prevails in a civil action will receive 10% of any statutory penalties assessed, plus expenses and attorneys’ fees.
Any agency or client company found by the Department or determined by a court in a civil action to have violated the Act will now be subject to a civil penalty of not less than $100 and not more than $18,000 for a first violation. Each repeat violation within three years will subject an offending agency or client company to a penalty of not less than $250 and not more than $7,500. Each violation (i.e., each violation of notice requirements) for each temporary worker and for each day the violation continues will constitute a separate offense.
Further, clients who contract with an agency that is not properly accredited under the Act are subject to a civil penalty of not less than $100 and not to exceed $1,500. Each day a client contracts with an unregistered agency will constitute a separate offense.
Conclusion
Moving forward, staffing agencies and clients will want to consider protocols and procedures that are already in place and whether they comply with these amendments. Staffing agencies and clients should immediately begin making any and all implementations necessary for compliance with this law.