On August 7, 2023, the Illinois Department of Labor (IDOL) filed Emergency Rules to implement amendments to the Illinois Day and Temporary Labor Services Act (Act). The Emergency Rules took effect immediately.

The amendments strengthen equal pay rights, safety and training requirements and other protections for day and temporary laborers. The Emergency Rules clarify some points the amendments did not expressly cover:

• From what start day must the 90-day period be measured? The amendments provide that a temporary laborer who is assigned to work at a third-party client for more than 90 calendar days shall be paid NOT less than the rate of pay and equivalent of benefits as the lowest paid directly hired comparator employee of the third-party client. The IDOL’s Emergency Rules make clear that for workers already employed then the 90-day period started on August 4, 2023 – when Illinois Governor JB Pritzker signed the amendments into law. The amendments are not retroactive, meaning work done at a third-party client prior to August 4, 2023, does not count towards the 90-day period. Work done after August 4, 2023, counts towards the 90-day period. The Emergency Rules clarify that if a day and temporary laborer’s compensation rate must be increased due to the requirements of the Equal Pay and Equal Work provision of the Act, the compensation increase shall be effective as of the day and temporary laborer’s 91^st day of performing work for the third-party client.

• Do the “90 calendar days” include non-working days? Unfortunately, the Emergency Rules do not answer this question. However, based on the ordinary meaning of “calendar” and absent different guidance from the IDOL, we expect the agency to interpret “more than 90 calendar days” as including non-working as well as working days. This would be consistent with the interpretation of other employment-related statutes. Thus, if a day or temporary laborer is assigned to a third-party client and works five days a week for more than three months, the day and temporary laborer would meet the “more than 90 calendar days” requirement.

• To constitute “more than 90 calendar days” must the 90 days of work be consecutive? No. The IDOL’s Emergency Rules make clear that the amendments apply to day and temporary laborers assigned to a third-party client for 90 calendar days within any 12-month period, whether “consecutively or intermittently.”

In addition, the Emergency Rules provide definitions for key terms in the Equal Pay and Equal Work Provision of the Act:

• Benefits is broadly defined as “health care, vision, dental, life insurance, retirement, leave (paid and unpaid), other similar employee benefits, and other employee benefits as required by State and federal law.”

• Substantially Similar Work is defined as “comparable work on jobs with comparable requirements.” Substantially similar work is not dependent on job classification or title. Instead, it depends on actual job requirements and genuine differences in how the work is performed.

The Emergency Rules further provide that 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.

The burden is on third-party clients to maintain all records used to determine compensation and benefits.

A day and temporary laborer may file a complaint with the Department for violations of the Equal Pay and Equal Work provision of the Act.

The Emergency Rules also clarify and add new requirements to Workplace Safety issues:

• A third-party client must notify a day and temporary labor service agency if a strike, lockout, or other labor dispute exists at the location where the agency is dispatching day or temporary laborers.

• Such a notice must include information regarding safety hazards and concerns at the third-party client company, identifying the representative of the client company to whom laborers should report safety concerns at the workplace, and stating that safety hazards and concerns may also be reported to the Department by calling the Department's Day and Temporary Labor Services Act toll-free hotline at 1-877-314-7052 or emailing DOL.DayLabor@illinois.gov.

• On or before a temporary laborer’s first day working at a client company each year, the day and temporary labor service agency shall provide general safety training to each day or temporary laborer for each client company that the day or temporary laborer is dispatched to. The third-party client may also conduct such training.

• Temporary laborer trainings must occur on the clock and at no expense to the temporary laborer.

• The training of temporary laborers must reflect all existing job hazards known to the client company. This must include training on the following:
  
  • hazards that require use of personal protective equipment;
  • 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; and
  • emergency action plans.

• Finally, the training must include information regarding actions taken by the third-party client to eliminate, control, or otherwise mitigate or protect workers from the hazards, as well as what steps workers should take to avoid or control the hazards. This must include emergency evacuation and shelter-in-place procedures.

The Emergency Rules also define key terms regarding Workplace Safety issues:

• Hazard is defined as “any source of potential for damage, harm, or adverse health effect that, if left uncontrolled, could result in an injury or illness of a worker.”

• Labor Dispute is defined as “any controversy concerning wages, hours, terms or conditions of employment.”

More information on the amendments can be found here.