As the IMA noted yesterday, Governor JB Pritzker signed HB 2862 (P.A. 103-0437) into law, bringing immediate changes to Illinois' Day and Temporary Labor Services Act that regulates staffing and temporary worker agencies. These changes, that will impact any employer using day and temporary laborers, include requiring staffing agencies to pay their employees who are assigned to a client for more than 90 calendar days, the same level of pay and benefits as regular employees of the business that have the same level of seniority and are performing the same or substantially similar work. The new law further prevents staffing agencies from assigning workers facilities experiencing “labor trouble” which is undefined, but specifically includes strikes and lockouts.
The IMA opposed the changes to the Day and Temporary Labor Services Act and sent this veto request letter to the Governor and then coordinated this veto request letter from over 200 Illinois manufacturers and businesses. Unfortunately, the Governor still signed the bill into law.
Today, the Illinois Department of Labor (IDOL) released emergency rules that take immediate effect in order to implement and clarify a number of key provisions of the new law.
These emergency rules include, but are not limited to:
The new rules include important definitions for implementing the new law, including definitions of "benefits," "direct hired employees," "similar working conditions," "seniority," and "substantially similar work" that should be considered in determining what wages and benefits must be provided by staffing agencies/employers to day and temporary laborers who have been with a company for more than 90 days.
The rules also contain a definition of "labor dispute" to clarify when day and temporary laborers may choose not to be placed at a facility. Though, this definition is still vague.
Complaints by Interested Parties:
The new rules provide further clarifications on when an interested party may initiate a civil action for a violation of the law. The rules define a an "interested party" as "an organization that monitors or is attentive to compliance with public or worker safety laws, wage and hour requirements, or other statutory requirements. [820 ILCS 175/5]." The rules allow an interested party to initiate a civil action 180 days after service of the notice of complaint to the parties and allows IDOL to issue right-to-sue letters. Parties may extend the 180-day waiting period by mutual agreement. However, the limitations period for the interested party to bring such an action shall be tolled for the 180-day waiting period and the for the time of any mutually agreed extensions of such time period.
The rules provide that a day and temporary labor service agency or third party client found to have violated any provision of the Act or this Part is subject to a civil penalty of not less than $100 and not more than $18,000 for the first violation. Any subsequent violation is subject to a civil penalty of not less than $250 and not more than $7,500. The rules also provide an outline for IDOL determining the severity of a violation.
The rules require every day and temporary labor service agency to provide at the time of dispatch, to each day and temporary laborer who is sent to work as a day and temporary laborer information regarding safety hazards and concerns at the third party client company and information regarding a strike, lockout, or other labor dispute exists at the client. Day and temporary laborers can now refuse to go to a location with a labor dispute.
The rules provide that on or before a day or temporary laborer's first day working at a client company each year, the day and temporary labor service agency shall provide (at no cost) general safety training to each day or temporary laborer for each client company that the day or temporary laborer is dispatched to.
Equal Pay for Equal Work:
The new rules state that "If a day or temporary laborer is assigned to work for a third party client, then the day or temporary laborer shall be paid at the same, or greater, rate of pay and receive the equivalent benefits as a directly hired employee of the third party client, under the following conditions:
After August 4, 2023, the day or temporary laborer is assigned to work for the third party client for more than 90 calendar days within any 12-month period, whether consecutively or intermittently; and
The rate of pay and equivalent benefits shall be the same, or greater, than the lowest paid directly hired employee with the same level of seniority at the third party client and performing the same or substantially similar work on jobs, the performance of which requires substantially similar skill, effort, and responsibility, and which are performed under similar working conditions.
If there is not a comparative directly hired employee of the third party client, the day or temporary laborer shall be paid not less than the rate of pay and equivalent benefits of the lowest paid directly hired employee of the third party client with the closest level of seniority at the third party client.
Third party clients shall keep the following records available for inspection by the Department during regular business hours at every location where day or temporary laborers are sent to work.
The IMA encourages companies who utilize day and temporary laborers to further examine these rules.
The IMA will be holding a second program on the changes to Illinois' Day and Temporary Labor Services Act next Thursday, August 17. This program will provide further guidance with the issuance of these new rules. Please continue to check your email for information and registration regarding this event.