Illinois to Mandate Equal Pay and Benefits, New Notice and Safety Requirements for Many Temporary Workers

By William Pokorny - Franczek P.C.

July 11, 2023

Under a new amendment to the Illinois Day and Temporary Labor Services Act, Illinois employers and staffing agencies will be required to provide temporary workers pay and benefits equal to certain directly-hired employees after 90 days of employment. The new legislation also requires employers and staffing agencies to notify temporary workers of strikes, lockouts, and “labor trouble;” and to provide general and site-specific safety training to temporary workers before they begin working at a job site. These requirements apply to day and temporary laborers in all roles other than those of a “clerical or professional” nature. The amendment has been approved by both houses of the Illinois General Assembly and will take effect upon signature by Governor Pritzker.

Equal Pay and Benefits

The law provides that a temporary worker assigned to a client by a temporary staffing agency for more than 90 calendar days must be paid “not less than the rate of pay and equivalent benefits as the lowest paid directly hired employee of the third party client 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.” If there is no directly hired comparative employee, the temporary worker must receive at least the rate of pay and equivalent benefits as the “lowest paid direct hired employee of the company with the closest level of seniority at the company.” In lieu of providing benefits, an agency may pay a temporary worker the “hourly cash equivalent of the actual cost” of the benefits required.

To facilitate compliance, clients are required to provide staffing companies with “all necessary information related to the job duties, pay, and benefits of directly hired employees necessary for the day or temporary labor service agency to comply” with the new law.

Notice of Strikes and Lockouts

The new amendment also requires staffing agencies to provide notice to temporary workers when they are assigned to a site experiencing a strike, lockout, or “other labor trouble.” This notice must be provided in writing and in a language that the worker understands. Temporary workers have the right to refuse the assignment without prejudice to their right to receive another assignment.

Safety Communication and Training

Under the new law, before a staffing agency assigns a worker to a client, the agency must “inquire about the client company’s safety and health practices and hazards” at the site where the worker will be assigned “to assess the safety conditions, workers tasks, and the client company’s safety program ….” This must be done at the start of any contract to place temporary workers and may include visiting the client’s worksite. If the agency becomes aware of hazards that are not mitigated by the client, the agency must “urge the client company to correct it, and document these efforts,” or remove the temporary workers from the client worksite.

Staffing agencies must also provide “general awareness safety training for recognized industry hazards” that a temporary worker may encounter at the client’s worksite, in the preferred language of and at no expense to the worker. The training date and training content must be maintained by the agency and provided to the worker. The agency must transmit a “general description of the training program including topics covered to the client company” at the start of the contract with the client. The training materials provided to the worker must include the Illinois Department of Labor’s hotline number for employees to report safety concerns and must inform temporary workers how to report safety concerns at the workplace.

Before a temporary worker begins work, a client company must document and inform the agency about any anticipated job hazards likely to be encountered by temporary workers, review the agency’s training to determine if it identifies recognized hazards for the client’s industry, provide site-specific training tailored to the particular hazards that the worker might encounter at the client’s worksite, and document and maintain records of the site-specific training provided. The client must provide the agency with written confirmation that the training occurred within three business days after providing the training. Workers must receive appropriate updated training and protective equipment before working under conditions that pose new hazards. The agency or workers may refuse any new job tasks involving additional hazard if they client fails to provide appropriate notice and updated training and equipment. Clients must allow a staffing agency representative to visit any worksite where a temporary worker works or will be working to observe and confirm that the client’s training is appropriate.

“Interested Party” Lawsuits

Under the new amendment, employers and staffing agencies that fail to comply with all of the mandates of the Act may be subject to enforcement action by the Illinois Department of Labor and private lawsuits by aggrieved employees. Additionally, the law allows any “interested party,” 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” to file suit against staffing agencies and clients if they have a “reasonable belief” that there has been a violation of the Act within the preceding three years. Such “interested parties” must first file a complaint with the Illinois Department of Labor. However, even if the Department of Labor determines that the complaint lacks merit or is outside of its jurisdiction, the “interested party” can receive a notice of its right to file suit. An “interested party” that wins a civil action can obtain 10% of the statutory penalties assessed as a result, plus its attorneys’ fees and expenses incurred.

The amendment increases statutory penalties under the Act to not less than $100 and not more than $18,000 for a first violation found by the Department of Labor or determined by a court in a civil action, and not less than $250 and not more than $7,500 for each repeat violation found by Department or court within three years. Each day that a violation continues for each temporary worker is considered a separate and distinct violation for purposes of calculating these penalties. Staffing agencies that are found to have willfully violated the Act may have their registration revoked.

Implications for Employers and Staffing Firms

The new amendment provides little time for staffing agencies and their clients to review and update their practices before the new law becomes effective, or for the Illinois Department of Labor to update its rules and guidance for employers and staffing agencies. Employers are strongly advised to communicate with their staffing agencies regarding the new requirements and work cooperatively with them to ensure compliance.

If you have any questions regarding this new law, please do not hesitate to reach out to your Franczek attorney.

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