Several amendments to the Illinois Day and Temporary Labor Services Act will become effective June 1, 2018. Staffing agencies (also known as “suppliers”) and user employers (“users”) are finding that some of the law’s requirements are not lessons in clarity. We took a handful of the most frequently asked questions (FAQs) regarding the new Illinois law, looked into a crystal ball, and compiled likely answers to those questions below. (Please note that we cannot be sure of any answers until practice, the courts, and/or the state dictate them to us. In other words, please do not rely on any of this educated spit-balling.)
1. Does the Act only apply to industrial/commercial positions?
Yes. The law explicitly excludes professional or clerical placements.
2. Can a supplier proceed with a day or temporary laborer’s work assignment if he or she refuses to complete the required Illinois race and gender form?
The new amendments do not directly answer this question, but a supplier can probably proceed in assigning the laborer to the user. It is likely that under Section 12 of the Act, the supplier’s obligation ends in asking its laborers to fully complete the form. It is unlikely that the Act’s purpose was to compel individuals to disclose personal identifying information if they do not want to do so.
3. Does a supplier have to pay a laborer if the laborer is dispatched to the user’s location? Can the supplier recuperate any costs from the user for a canceled request?
While the Act does not explicitly address these questions, the Act appears to require payment when a laborer is actually dispatched to an assignment. If the laborer is not actually dispatched, it likely can be considered a canceled request for workers. However, if the laborer was dispatched to the user before the user canceled its request, it is likely that the supplier must pay the laborer four hours’ wages (or two hours’ wages if the supplier finds the laborer another assignment). There is nothing in the Act that explicitly prohibits the user from recuperating these costs from the supplier.
4. Can suppliers text laborers the details that must be provided in the employment notice, or does this information have to be directly handed to laborers?
Pursuant to Section 10 of the Act, it appears this information needs to be provided to the laborers on a form at the time of dispatch. Texting likely would not be considered a “form” under the Act and potentially could be an unreliable method to ensure laborers are receiving the required information. Thus, suppliers may want to hand the form to the laborers at the time of dispatch.
5. Do laborers need to sign the employment notice?
The Act does not state that a laborer is required to sign the employment notice. However, pursuant to Section 10 of the Act, a supplier employee signature is required if the laborer is not placed on that day and requests a confirmation statement. Specifically, the Act states that a supplier “shall, upon request, provide the day and temporary laborer with a confirmation that the day or temporary laborer sought work, signed by an employee of the [supplier], which shall include the name of the [supplier], the name and address of the day or temporary laborer, and the date and the time that the day or temporary laborer receives the confirmation.”
6. The Act requires that a supplier attempt to place a current laborer into a permanent position with a user and that placement fees, subject to a fee cap, may be charged to a user that employs a laborer. Do these fee restrictions apply to the placement of “skilled labor”? What fee may a supplier charge a user for “skilled labor”?
It appears the stated fee caps in Section 40 would not apply. The Act does not provide any further details on what type of fees should apply for “skilled labor.”
7. The Act states that suppliers and users cannot retaliate against any laborer who exercises any rights granted under the Act. Can suppliers and users still provide warnings for no shows, no calls, and the like?
Yes, as long as the supplier and user issue discipline in a consistent and nondiscriminatory manner, and do not issue discipline for any retaliatory or pretextual reason.
8. How do I register as a Supplier under the Act?
Direct your browser to https://www2.illinois.gov/idol/Laws-Rules/FLS/Pages/DTLSA-Instructions.aspx.
9. Where do I find the required posters?
Direct your browser to https://www2.illinois.gov/idol/Employees/Documents/DLposterE.pdf.
10. Can the supplier charge placement fees?
Yes. The supplier can charge limited placement fees to users who offer employment to the laborers.