Illinois Adds Rights and Safety Protections for Temporary Workers

​On Aug. 4, Illinois Gov. JB Pritzker signed HB 2862 into law, significantly amending the Illinois Day and Temporary Labor Services Act. Effective immediately, these amendments provide temporary laborers with strengthened equal pay rights and protection with several new safety and training requirements.

The Equal Pay for Equal Work provisions of the amended act continue Illinois' commitment to maintaining wage transparency and classifying workers as employees, rather than contractors. The amendments place obligations on temp agencies as well as third-party clients that utilize temporary laborers. These include:

• A temporary laborer who is assigned to work at a third-party client for more than 90 calendar days shall be paid no less than the rate of pay and equivalent of benefits of the lowest paid directly hired comparator employee of the third-party client.
• If there is not a directly hired comparator employee, the temporary laborer shall be paid no less than the rate of pay and equivalent benefits of the lowest paid directly hired employee of the third-party client.
• The temp agency may pay the hourly cash equivalent of the actual cost of the benefits, as opposed to providing the benefits.
• Upon request, the third-party client to which a temporary laborer has been assigned for more than 90 calendar days must provide the temp agency with necessary information related to job duties, pay, and benefits of directly hired employees.
• The third-party client's failure to provide the necessary information shall constitute a notice violation, with the temp agency as the aggrieved party. The aggrieved party may recover compensatory damages in an amount up to $500 for each violation, as well as attorneys' fees and costs. 
  

It remains the temp agency's obligation to pay temporary laborers. Third-party clients that utilize temporary laborers should anticipate requests from temp agencies for this information and develop a plan for gathering and providing it to their temp agencies.

Third-party clients that utilize temporary laborers should also expect temp agencies to seek to renegotiate the pay structure of temporary laborer contracts in order to facilitate compliance with the Equal Pay for Equal Work provision. This may increase labor costs payable to or through the agency.

Unanswered Questions

Questions left unanswered by the amendments include:

• From what start day must the 90-day period be measured? Does the clock start on Aug. 4, when the act was signed, or on the statute's retroactive effective date (July 1)? Or must the calculation include time worked prior to these dates? Without clear guidance from the Illinois Department of Labor, the most conservative approach would be to assume the agency will interpret the Equal Pay and Equal Work provision of the act as requiring the 90-day calculation to begin on the temporary laborer's actual start date at the third-party client, even where it was prior to July 1. This could result, however, in triggering immediate violations, retroactive to July 1, if applied to existing long-term workers.
• Does "more than 90 calendar days" include non-working days in the calculation? Based on the ordinary meaning of "calendar," we expect the agency to interpret "more than 90 calendar days" as including non-working days in the calculation. This would be consistent with the interpretation of other employment-related statutes. Thus, if a temporary laborer is assigned to a third-party client and works five days a week for a period of over three months, the temporary laborer would meet the "more than 90 calendar days" requirement.
• To constitute more than 90 calendar days, must the days of work be consecutive? We anticipate that "more than 90 calendar days" can include both consecutive and non-consecutive days. If a temporary laborer is assigned to a third-party client for one month, ceases that assignment and later is assigned to the same client for another period, all time assigned at the third-party client would have to be counted toward the "more than 90 calendar days" trigger.
  

It appears likely that the "more than 90 calendar days" requirement will discourage third-party clients from working with particular temporary laborers on a long-term basis.

Workplace Safety and Training Requirements

In addition to safety standards under the federal Occupational Safety and Health Act, temp agencies and client companies in Illinois will need to comply with new safety and training requirements under the state law.

At the start of a new contractual relationship, a temp agency must inquire about the client company's safety and health practices and hazards at the worksite and transmit a general description of the training program it will provide to assigned workers, including topics covered, to the client company.

Before assigning an employee to work, temp agency must provide the temporary laborer with the following:

• General awareness safety training for recognized industry hazards the laborer may encounter at the worksite, along with providing the training on safety topics previously communicated to the client.
• The Illinois Department of Labor's hotline number for reporting safety hazards.
• Information regarding how the laborer should report safety concerns at the workplace.
  

Client companies must take these actions before a temporary laborer may begin work:

• Document and inform the temp agency about anticipated job hazards likely encountered by the temporary laborer.
• Review the safety and health awareness training provided by the temp agency to determine if it addresses recognized hazards for the client company's industry.
• Provide specific training tailored to the particular hazards at the client company's worksite.
• Document and maintain records of site-specific training and provide confirmation that the training occurred to the temp agency within three business days of providing the training to the temporary worker.
  

Ultimately, both temp agencies and client companies are required to provide training specific to the job site. Should the client company implement new job tasks or utilize a work location where new hazards may be encountered, the client company must inform the temp agency and temporary laborer and update both personal protective equipment and training where necessary.

Right to Refuse Assignment to a Labor Dispute

Provisions of the amended act intended to strengthen the hand of labor unions in strikes and other labor disputes could have serious ramifications for employers. Before a temporary laborer can be sent to a worksite where a strike, lockout or other "labor trouble" exists, the temp agency must provide the temporary laborer with a statement informing them about the dispute and the right to refuse the assignment without prejudice to receiving another assignment. Failure to provide such information shall constitute a notice violation under the law.

The act does not define "labor trouble," leaving temp agency and client companies at risk if state authorities decide they interpreted the term too narrowly. Further complicating the issue is that the temp agency may not know about the alleged labor dispute unless the client company tells them. Yet the act appears to hold only the temp agency responsible for this type of violation.

The new amendment may increase the burdens of employers involved in a strike or lockout that want to use temporary workers to continue business operations. In Illinois, employers may not use "professional strikebreakers," but employers are allowed to continue the employment of a temporary laborer throughout a strike.  By restricting that right, the new amendment could weaken the ability of companies to defend themselves during union organizing campaigns or to resist pressure during collective bargaining.

Registration Revocation and Civil Actions

The Illinois attorney general may request that a circuit court suspend or revoke the registration of a temp agency when warranted by violations of this act. The attorney general must provide notice of such revocation to the director of labor prior to requesting such a suspension or revocation of the registration of a temp agency. 

The amendments expand the private right of action under the act by granting interested parties the right to initiate a civil action against a temp agency or third-party client.  "Interested party" means "an organization that monitors or is attentive to compliance with public or worker safety laws, wage and hour requirements, or other statutory requirements." This opens the door to involvement by governmental entities like the Illinois Department of Labor or the U.S. Occupational Safety and Health Administration. Arguably, this could even include labor unions or independent compliance monitors. 

Procedurally, the interested party must file a complaint with the Illinois Department of Labor and go through the administrative process before filing a complaint in the county where the alleged violation occurred or where any party resides. Although the responding party is granted an opportunity to cure, this does not prevent a notice of right to sue from being issued. Any claim or action must be made within three years of the alleged conduct resulting in the complaint. This amendment will likely result in more litigation of claims involving temporary workers. In turn, this could become a hot topic for future legislation in Illinois.

Conclusion

By blurring the line between temp agencies and client companies, the amendments could make joint-employer findings more likely under Illinois law and increase potential liability of companies previously regarded as separate entities. With several important questions left unanswered, the amendments force temp agencies and client companies to wait for guidance from the Illinois Department of Labor.

Maria Palivos, Elizabeth Hanford, Matthew Ruza, and Darren Mungerson are attorneys with Littler in Chicago. © 2023. All rights reserved. Reprinted with permission.