Latimer LeVay Fyock, LLCLatimer LeVay Fyock, LLC

Illinois Employers That Hire Temporary or Day Workers Have New Obligations And Face New Penalties Under Recent Amendments To The Law

Illinois businesses that use or rely upon day or temporary workers, whether directly or through staffing agencies, must contend with significant changes to the law that governs the rights of such workers and the obligations of the companies that employ them. Amendments to the Illinois Day and Temporary Labor Services Act (“the Act”), which became effective on July 1, 2023, impose new equal pay, safety, training, and other requirements on employers and provide more robust protections and remedies for the individuals working in this growing sector of the labor market.

Equal Pay For Equal Work

The new Section 42 of the Act, entitled “Equal Pay For Equal Work,” provides that:

  • A day or temporary laborer assigned by a staffing agency to work at a third-party client for more than 90 calendar days shall be paid not less than the pay rate and benefits as the comparable lowest-paid directly hired employee of the third-party client.
  • The comparable direct-hire employee whose pay and benefits are the baseline for the temp worker is one “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 comparable directly hired employee, the temporary laborer must be paid no less than the pay rate and benefits of the lowest-paid directly hired employee of the third-party client.
  • For any laborer assigned to a staffing agency client for more than 90 calendar days, the client must provide the agency with the information necessary to comply with the Act’s equal pay requirements, including the job duties, pay, and benefits of comparable directly hired employees.
  • A client that fails to provide the aforementioned information commits a “notice violation” for which it may be held liable for compensatory damages of up to $500 for each violation, as well as attorneys’ fees and costs.  

New Health and Safety Requirements

The Act also imposes new health and safety requirements on employers who use staffing agencies for temporary workers, in addition to their existing OSHA obligations.

Before a temporary laborer may start working at the employer, the employer must:

  • Document and inform the staffing agency about anticipated job hazards likely encountered by the day or temporary laborer; 
  • Review the safety and health awareness training provided by the staffing agency to determine if it addresses recognized hazards for the employer's industry; 
  • Provide specific training tailored to the particular hazards at the employer's worksite;
  • Allow the staffing agency to visit any work site to observe and confirm the client’s training and to obtain information about the job tasks, safety and health practices, and hazards at the worksite; and
  • Document and maintain records of site-specific training and provide the staffing agency with confirmation that the training occurred within three business days of giving the training to the temporary worker.

Labor Disputes

The amendments to the Act also include provisions designed to notify temporary workers about labor disputes at an employer and allow them to refuse any such assignments without fear of retaliation.

Specifically, if the worker’s assignment is to “a place where a strike, a lockout, or other labor trouble exists,” the staffing agency must provide the worker with a statement in writing notifying them of the issue. The information must be provided “in a language that the [laborer] understands” and clearly advise the worker that they have the “right to refuse the assignment, without prejudice to receiving another assignment.”

Penalties For Violations

Violations of the Act and/or rules may result in a penalty of between $100 and $18,000. Additional violations within three years may incur penalties of not less than $250 and not more than $7,500 per violation, per laborer, per day.

Significantly, the amendments authorize a private right of action for “interested parties” against both staffing agencies and their client businesses for alleged violations of the Act. “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.” That definition would potentially encompass not only such governmental authorities as the Illinois Department of Labor or OSHA, but also labor unions or advocacy groups. An interested party that prevails in a civil action is entitled to 10% of the statutory penalties assessed, as well as attorney’s fees and costs.

There are certainly nuances to these amendments beyond the highlights discussed here, and many distinct requirements apply specifically to staffing agencies rather than the businesses that utilize their services.

Any business that hires temporary or day laborers or works with a staffing agency to do so should consult with counsel to ensure that they update their practices and policies to comply with these changes to Illinois labor law. If you have questions about these amendments, please contact one of the labor and employment law attorneys at Latimer LeVay Fyock.