By Gerald L. Maatman, Jr. and Gregory Tsonis
Duane Morris Takeaways – In a significant development impacting both staffing agencies and their customers, recent legislative changes in Illinois propose to delay implementation of the equal pay provision of the Illinois Day and Temporary Labor Services Act (IDTLSA) until April 1, 2024. Further, recent guidance from the Illinois Department of Labor clarifies that the 90-day period which triggers the equal pay and benefit provision requires a temporary laborer to actually work 90 days for a client employer. A comprehensive breakdown of the 2023 amendments to the IDTLSA and the law’s significant new requirements can be found here.
Proposed Amendment And Recent Clarification To Equal Pay And Benefit Provision
On November 9, 2023, both houses of the Illinois General Assembly passed legislation that further amends Section 42 of the IDTLSA. The original IDTLSA amendments, passed on August 4, 2023, required staffing firms to provide day and temporary laborers with equal pay and benefits as workers employed directly by the client employer after 90 days of work. The new bill passed by the Illinois legislature, HB 3641, proposes to delay the start of the 90-day calculation period. Specifically, the approved bill adds language to the IDTLSA stating that “[t]he calculation of the 90 calendar days may not begin until April 1, 2024.” This proposed delay would provide employers and staffing agencies with additional time to ensure compliance with the IDTLSA’s equal pay requirements.
It is important to note that this amendment, if signed into law by Governor J. B. Pritzker, extends the timeline for compliance with the IDTLSA’s equal pay and benefits provision only. It does not, however, exempt employers and staffing agencies from adhering to other mandates of the IDTLSA, which took effect on August 4, 2023. These mandates include but are not limited to placement fee restrictions, required safety training, labor issue disclosures, and stringent recordkeeping requirements.
Further clarifying the scope of these requirements, the Illinois Department of Labor published a list of frequently asked questions following the amendments’ passage on August 4, 2023. One frequent question raised by employers and staffing agencies alike is whether the 90 days which entitle a temporary employee to equal pay and benefits is 90 days assigned at a client or 90 days actually worked. The IDOL’s recently published Day and Temporary Labor Service Agency FAQ (which can be found here) clarifies that the 90-day count “includes only days worked by a day or temporary laborer for the third-party client within a 12-month period, not simply the total duration of the contract or assignment.” Notably, even a minimal amount of time worked on any given day will count towards the 90-day total.
Implications for Employers and Staffing Agencies
This legislative update and further guidance from the Illinois Department of Labor underscore the dynamic nature of labor laws and the importance of staying informed. Given the IDTLSA’s extensive requirements and private right of action as an enforcement mechanism, employers and staffing agencies must remain vigilant in understanding and complying with the law’s evolving requirements to avoid potential legal complications.