Illinois Law Changes Impact Job Postings, Obligations to Temporary Workers

The IDTLSA amendments take effect immediately, while the IEPA amendments go into effect on January 1, 2025.

Pay Transparency in Job Postings

On August 11, 2023, Governor Pritzker signed into law Illinois Equal Pay Act amendments requiring employers with 15 or more employees to post wage and benefits information in all job postings effective January 1, 2025.

Posting Requirement

The amendments require employers with 15 or more employees to provide the “pay scale and benefits” for each job posting. In lieu of posting the pay scale and benefits directly in the job posting, an employer can also fulfill the disclosure requirements by including a hyperlink to a publicly viewable webpage listing all the required pay scale and benefits information for the position. An employer also fulfills the disclosure requirement by providing that information, or a hyperlink, to any third party posting the position on behalf of the employer.

Pay Scale and Benefits

“Pay scale and benefits” means the wage or salary, or wage or salary range, for the position, as well as a general description of the benefits and other compensation, including bonuses, stock options, or other incentives the employer “reasonably expects in good faith” to offer for the position.

Covered Positions

The amendments apply to any position where the work will be performed, even in part, within Illinois as well as positions where the employee reports to a supervisor, office, or other worksite within Illinois.

Non-Posted Positions

The law does not require employers to create job postings for every position. If the employer has not made a public or internal posting for the job available to the applicant, the employer “shall disclose … the pay scale and benefits to be offered for the position prior to any offer or discussion of compensation and at the applicant’s request.”

Promotions Posting Requirement

An employer is required to announce or post all opportunities for promotion to current employees within 14 days after the employer makes an external job posting for the position.

Penalties

Current or former employees and applicants can file a complaint with the Illinois Department of Labor (IDOL) within one year from the alleged violation. For active job postings, the IDOL can fine employers between $500 (for a first offense) and $10,000 (for third and subsequent offenses) per offense. For non-active job postings, the IDOL can fine employers between $250 (for a first offense) and $10,000 (for third and subsequent offenses) per offense.

Equal Pay and Safety Training for Temporary Workers

The Illinois Day and Temporary Labor Services Act amendments were signed into law on August 4, 2023. The IDOL has issued proposed rules for the amendments with a 45-day public comment period running through October 2, 2023. In the interim, on August 7, the IDOL filed emergency rules that became effective immediately. The emergency rules are set to expire at the end of a 150-day period (January 4, 2024) or upon the adoption of permanent rules, whichever is earlier. Some key provisions of the amendments and emergency rules are summarized below.

Eligible Temporary Workers

The amendments do not apply to temporary workers who perform work of a “professional or clerical nature.”

Equal Pay Requirement

The amendments require eligible temporary workers who work for a client-employer for at least 90 calendar days to be paid the same or a greater rate of pay and equivalent benefits of the lowest paid, directly hired employee of the client-employer performing substantially similar work, under similar working conditions, and with the same level of seniority. The 90-day period can be within a 12-month period and worked consecutively or intermittently. Should no comparator exist, the temporary worker must be paid at least the same amount of pay and benefits as the lowest paid, directly hired employee with equivalent seniority. “Benefits” means “health care, vision, dental, life insurance, retirement, leave (paid and unpaid), other similar employee benefits, and other employee benefits as required by State or federal law.” Staffing agencies may pay each temporary worker the hourly cash equivalent of the actual cost benefits in lieu of providing equivalent benefits.

The client-employer, upon request, must provide a staffing agency with all necessary information related to job duties, pay, and benefits of directly hired employees necessary for the staffing agency to comply with these requirements.

Temporary workers currently staffed at client-employers must receive equal pay no later than 90 days after the effective date of the amendments, by November 2, 2023, if the worker has worked there more than 90 days as of that date.

Job Hazards/Safety Training

Before assigning a worker to a client-employer, a staffing agency must inquire about the client-employer’s safety and health practices and known hazards at the worksite where the temporary worker will be working to “assess the safety conditions, workers tasks, and client-employer safety program.” If the staffing agency becomes aware of hazards at the client-employer worksite that are not mitigated, it must inform the client-employer of the hazard and urge the client-employer to correct it and document such efforts.

A 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.”

Prior to placement, the staffing agency also must provide to the temporary worker general awareness safety training for recognized industry hazards that the temporary worker may encounter at the worksite, in the worker’s preferred language and at no expense to the worker. The training must include training on all existing job hazards known to the client-employer or the staffing agency, and must include, at a minimum, any of the following types of hazards present: hazards that necessitate the 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. The training also must include information regarding actions taken by the client-employer to eliminate, control, or otherwise protect workers from the hazards, and steps workers should take to avoid or control the hazards, including emergency evacuation and shelter-in-place procedures. The staffing agency must transmit a general description of the training program, including topics covered, to the client-employer at the start of the engagement.

The staffing agency also must provide at the time of dispatch, to each worker sent to work at a client-employer, a statement with the following, among other information:

1. The name and nature of the work to be performed;
2. The wages offered;
3. Information regarding safety hazards and concerns at the client-employer, identifying the representative of the client-employer to whom workers should report safety concerns at the workplace, and a statement that safety hazards and concerns may be reported to the Department by calling the IDTLSA toll-free hotline at 1-877-314-7052 or emailing DOL.DayLabor@illinois.gov; and
4. If a strike, lockout, or other labor dispute exists, then a written statement in the primary language of the worker notifying them of a strike, lockout, or other labor dispute and the worker’s right to refuse the assignment.

Before the temporary worker begins work for a client-employer, the client-employer must:

1. Document and inform the staffing agency about anticipated job hazards likely encountered by the temporary worker;
2. Review the safety and health awareness training provided by the staffing agency to determine if it addresses recognized hazards for the client-employer’s industry;
3. Provide training tailored to the particular hazards at the client-employer’s worksite; and
4. Document and maintain records of site-specific training and provide confirmation to the staffing agency that the training occurred within 3 business days of providing the training.

If the worker’s job tasks or work location will be changed and there will be new hazards, the client-employer must inform both the staffing agency and temporary worker of that fact and of the additional hazards and update the PPE and training for the new job tasks as needed.

If the client-employer will be supervising the temporary worker, it must provide worksite specific training to the worker and allow the staffing agency to visit any worksite where the temporary workers work or will be working to “observe and confirm” the training and information provided related to the worksite’s job tasks, safety and health practices, and hazards.

Labor Disputes

Staffing agencies must inquire about whether there is a strike, lockout, or other labor dispute before placing workers at a client-employer, and if there is a dispute, the client-employer must inform the staffing agency. Temporary workers can refuse to work at a location where there is a strike, lockout, or other labor dispute.

Recordkeeping

Staffing agencies are required to maintain records of:

1. All safety hazard training and disclosures required by the IDTLSA, including documentation signed by the temporary worker indicating they received the required training,
2. Records of information used to determine compensation and benefits, and
3. Records related to any notice of a labor dispute, and documentation signed by the temporary worker acknowledging they have the right to refuse to work at the site of a labor dispute.

Client-employers must keep records of:

1. All known safety hazards, including steps taken to mitigate or control the hazards, and
2. Records relating to the compensation of directly hired employees used for comparison purposes to achieve the equal pay requirements.

The IDOL’s proposed rules would also require client-employers to keep records of staffing agency contracts (including proof the staffing agency has a valid certificate of registration from the IDOL), and personnel records for each temporary worker assigned to the client-employer.

Penalties

Failure to comply with these changes can come with steep penalties. Staffing agencies and client-employers who violate the Act can be assessed penalties of $100 to $18,000 for violations, and $250 to $7,500, for each repeat violation within three years. A separate violation occurs for each day or worker, and for each day the violation continues.

Interested Party Rights

The amendments create rights for any “interested party,” 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,” to initiate civil actions against staffing agencies and client-employers based on a “reasonable belief” of a violation within the preceding three years. The interested party must first submit a complaint to the IDOL. If the interested party prevails in a civil action, it is entitled to 10% of the statutory penalties assessed, attorney’s fees, and expenses incurred.

AFS attorneys are available to answer questions and assist employers in complying with these new laws.