Client Obligations Under the Illinois Day and Temporary Labor Services Act

Earlier this year, the Illinois Day and Temporary Labor Services Act (Act) was substantially amended to impose expansive new responsibilities on not only Illinois staffing agencies, but also on employers who rely on temporary workers. Employers who utilize temporary workers must be aware of the expanded responsibilities under this Act. It is important to note that professional and clerical workers are excluded from these requirements.

Equal Pay for Equal Work

According to this provision, if a temporary worker is assigned to work at a staffing client for more than 90 calendar days within a12-month period, consecutively or intermittently, the worker must receive at least the same pay rate and equivalent benefits of the lowest paid “comparative directly hired employee” of the client. This provision applies to employees who have worked at a client for 90 days after the August 4^th effective date. Upon request, the client must provide the agency with all necessary information regarding job duties, pay, and benefits of directly hired employees in order for agency to comply with the Act.

To determine the appropriate information to provide to an agency, the client must determine who qualifies as a “comparative directly hired employee.” A comparative employee is someone who has the same level of seniority and performs similar work as the temporary worker. Similar work includes work that require “substantially similar skill, effort, and responsibility” and work that is “performed under similar working conditions.” If the client is unable to identify a “comparative employee,” the temporary worker must receive at least the pay rate and equivalent benefits of the lowest paid client employee with the closest level of seniority.

The term “benefits” is defined as health care, vision, dental, life insurance, retirement, paid and unpaid leave, other similar employee benefits, and other employee benefits required by State and federal law. As an alternative to providing equivalent benefits to the temporary worker, agencies may choose to pay the cash equivalent of the client’s cost of benefits. Therefore, clients must also provide the client’s cost of benefits. More information detailing calculating the cost of benefits can be found in this white paper.

Notices Required to be Provided to Temporary Workers

Although not direct requirements of clients, it is important to be aware of additional notice requirements that agencies are required to communicate to temporary workers.

Wage Payment and Notice

This provision of the Act was amended to state that the agency must provide temporary workers with a notice containing the calculation of the agency’s placement fee that would be charged if the worker is hired by the client, along with the number of work days remaining before the agency cannot charge a placement fee to hire the worker. This notice must be provided to the workers at the time wages are paid.

The Right to Refuse Assignment Due to Labor Dispute

This provision allows temporary workers the right to refuse assignments from a client experiencing a strike, lockout, or any other labor dispute. If a strike, lockout, or other labor dispute exists at the location where the agency is dispatching temporary workers, the client must notify the agency. The agency is responsible for inquiring about these situations at a client and must provide a written statement to the temporary workers about their rights without prejudice to receiving another assignment. This notice must be given to the workers at the time of or before dispatching to the client.

Employment

The Act requires that at time of dispatch, each temporary worker must be provided with a statement containing detailed information about their assignment. Clients should be prepared for agencies to confirm the following information that must be included in the statement:

• The name of the temporary worker.
• The name and nature of work to be performed.
• The wages offered.
• The name and address of the destination of the temporary worker.
• The terms of transportation.
• Whether the agency or the client provides a meal or equipment or both and the cost, if any.
• If the temporary worker’s paycheck stub uses codes to identify clients, the code(s) correlating to where the temporary worker is being sent to work.
• Information regarding safety hazards and concerns at the client, including  the representative of the client to whom workers should report safety concerns at the workplace to, and a statement that safety hazards and concerns may be reported to the Department by calling the Department’s Day and Temporary Laborer Services Act toll-free hotline at 1-877-314-7052 or emailing DayLabor@illinois.gov.
• If a strike, lockout, or other labor dispute exists, a written statement in the temporary worker’s primary language, notifying them of the situation and their right to refuse the assignment.

This statement must be signed by an authorized agent of the agency stating that the information contained in the statement is true and correct. If the temporary worker is not dispatched from the agency office directly, the statement can be provided by hand, email, text message, or US mail. This statement only needs to be provided on the first day of the assignment and on any day that any of the terms listed on the employment notice are changed.

Safety Obligations

The Act establishes provisions for joint responsibilities related to safety, similar to OSHA’s Temporary Worker Initiative. Both the client and the agency are responsible for compliance with these requirements:

• Assessment Prior to Placement: Clients must notify the agency of all their safety and health practices, and all known hazards at the location where the temporary worker will be working. This allows the agency to assess the safety conditions, worker’s tasks, and the safety . A job hazard analysis (JHA) is a recommended method to accomplish this. The JHA outlines the tasks for each job, potential hazards, and controls in place to mitigate exposure. JHAs also ensure that training provided is specific to the hazards of the actual work being performed.
• Training:
  • General safety training for recognized industry hazards that temporary workers may encounter at the worksite must be provided in the worker’s preferred language and at no expense to the worker. This must include, but is not limited to:
    • Hazards that have been reported by employees or temporary workers
    • Hazards which necessitate the use of personal protective equipment (PPE)
    • Fall hazards
    • Electrocution hazards
    • Hazards of being struck by objects
    • Getting caught or between hazards
    • Machinery-related hazards
    • Chemical or other substance-related hazards
    • Repetitive-motion hazards
    • Emergency action plans
    • Information regarding actions taken to eliminate, control, and protect workers from the hazards, including what steps workers should take to avoid or control hazards (this must include emergency evacuation and shelter-in-place procedures).
  • Documentation of the training content and date of training must be maintained and provided to the worker.
  • Workers may refuse a new job task if the task has not been reviewed or if the worker has not had appropriate training on the new task.
• Notification of Hazards:
  • Before a temporary worker begins their assignment, the client must document and inform the agency of anticipated hazards with the job and worksite.
  • If the client changes the temporary worker’s job tasks or worksite, or identifies new hazards that may be encountered, they must inform both the worker and the agency of the change.

Clients should be prepared to provide the agencies they work with all necessary information regarding job duties, pay, and benefits of directly hired employees so that Agencies can comply with the Act. Additionally, the client should ensure that their current practices comply with the safety obligations of the Act.

For more information or assistance in complying with these requirements, please contact a member of our team.