SB0047 99TH GENERAL ASSEMBLY

LRB099 03700 HEP 23712 b

99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
SB0047

Introduced 1/15/2015, by Sen. James F. Clayborne, Jr.

SYNOPSIS AS INTRODUCED:

820 ILCS 175/2
820 ILCS 175/5
820 ILCS 175/12
820 ILCS 175/95

Amends the Day and Temporary Labor Services Act. In the Section containing legislative findings, adds a finding that temporary laborers are vulnerable to discriminatory practices. Defines "day or temporary labor applicant". In a Section concerning recordkeeping, provides that the day and temporary labor service agency shall keep a record of the race, ethnicity, and gender of each day or temporary laborer or day or temporary labor applicant, as provided by the person who requests employment with or is contracted by the day and temporary labor service agency (instead of "the race and gender of each day or temporary laborer sent by the day and temporary labor service agency"). Provides that the day and temporary labor service agency shall provide each day or temporary labor applicant with and retain a copy of a written notice signed by an employee of the day and temporary labor agency and specifying the date, time, and location the applicant requested employment. Provides that at the time of annual registration, the day and temporary labor service agency shall submit to the Department of Labor, on a form created by the Department, a report containing the information required by the new provisions, grouped by branch office, in the aggregate for all day or temporary laborers assigned within this State in the prior year. Provides that in the case of a health and safety or notice violation, a private right of action exists for compensatory damages and an amount between $50 and $500 for each violation (instead of "up to $500 for the violation"). Makes corresponding changes.

A BILL FOR

AN ACT concerning employment.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Day and Temporary Labor Services Act is amended by changing Sections 2, 5, 12, and 95 as follows:

(820 ILCS 175/2)

Sec. 2. Legislative Findings. The General Assembly finds as follows:

Over 300,000 workers work as day or temporary laborers in Illinois.

Approximately 150 day labor and temporary labor service agencies with nearly 600 branch offices are licensed throughout Illinois. In addition, there is a large, though unknown, number of unlicensed day labor and temporary labor service agencies that operate outside the radar of law enforcement.

Recent studies and a survey of low-wage day or temporary laborers themselves finds that as a group, they are particularly vulnerable to abuse of their labor rights, including unpaid wages, failure to pay for all hours worked, minimum wage and overtime violations, and unlawful deduction from pay for meals, transportation, equipment and other items, and discriminatory practices.

Current law is inadequate to protect the labor and employment rights of these workers.

At the same time, in Illinois and in other states, democratically run nonprofit day labor centers, which charge no fee for their services, have been established to provide an alternative for day or temporary laborers to solicit work on street corners. These centers are not subject to this Act.

(Source: P.A. 94-511, eff. 1-1-06.)

(820 ILCS 175/5)

Sec. 5. Definitions. As used in this Act:

"Day or temporary laborer" means a natural person who contracts for employment with a day and temporary labor service agency.

"Day or temporary labor applicant" means a natural person who requests a job assignment through a day and temporary labor service agency, whether in person, verbally, in writing, or through an online application process.

"Day and temporary labor" means work performed by a day or temporary laborer at a third party client, the duration of which may be specific or undefined, pursuant to a contract or understanding between the day and temporary labor service agency and the third party client. "Day and temporary labor" does not include labor or employment of a professional or clerical nature.

"Day and temporary labor service agency" means any person or entity engaged in the business of employing day or temporary laborers to provide services, for a fee, to or for any third party client pursuant to a contract with the day and temporary labor service agency and the third party client.

"Department" means the Department of Labor.

"Third party client" means any person that contracts with a day and temporary labor service agency for obtaining day or temporary laborers.

"Person" means every natural person, firm, partnership, co-partnership, limited liability company, corporation, association, business trust, or other legal entity, or its legal representatives, agents, or assigns.

(Source: P.A. 94-511, eff. 1-1-06; 95-499, eff. 8-28-07.)

(820 ILCS 175/12)

Sec. 12. Recordkeeping.

(a) Whenever a day and temporary labor service agency sends one or more persons to work as day or temporary laborers, the day and temporary labor service agency shall keep the following records relating to that transaction:

(1) the name, address and telephone number of each third party client, including each worksite, to which day or temporary laborers were sent by the agency and the date of the transaction;

(2) for each day or temporary laborer: the name and address, the specific location sent to work, the type of work performed, the number of hours worked, the hourly rate of pay and the date sent. The term "hours worked" has the meaning ascribed to that term in 56 Ill. Adm. Code 210.110 and in accordance with all applicable rules or court interpretations under 56 Ill. Adm. Code 210.110. The third party client shall be required to remit all information required under this subsection to the day and temporary labor service agency no later than 7 days following the last day of the work week worked by the day or temporary laborer. Failure of a third party client to remit such information to a day and temporary labor service agency shall not be a defense to the recordkeeping requirement of this Section;

(3) the name and title of the individual or individuals at each third party client's place of business responsible for the transaction;

(4) any specific qualifications or attributes of a day or temporary laborer, requested by each third party client;

(5) copies of all contracts, if any, with the third party client and copies of all invoices for the third party client;

(6) copies of all employment notices provided in accordance with subsection (a) of Section 10;

(7) deductions to be made from each day or temporary laborer's compensation made by either the third party client or by the day and temporary labor service agency for the day or temporary laborer's transportation, food, equipment, withheld income tax, withheld social security payments and every other deduction;

(8) verification of the actual cost of any equipment or meal charged to a day or temporary laborer;

(9) the race, ethnicity, and gender of each day or temporary laborer or applicant, as provided by the person who requests employment with or is contracted sent by the day and temporary labor service agency. The day and temporary labor service agency shall provide each day or temporary labor applicant with and retain a copy of a written notice signed by an employee of the day and temporary labor agency and specifying the date, time, and location the applicant requested employment , as provided by the day or temporary laborer; and

(10) any additional information required by rules issued by the Department.

(b) The day and temporary labor service agency shall maintain all records under this Section for a period of 3 years from their creation. The records shall be open to inspection by the Department during normal business hours. Records described in paragraphs (1), (2), (3), (6), (7), and (8) of subsection (a) shall be available for review or copying by that day or temporary laborer during normal business hours within 5 days following a written request. In addition, a day and temporary labor service agency shall make records related to the number of hours billed to a third party client for that individual day or temporary laborer's hours of work available for review or copying during normal business hours within 5 days following a written request. The day and temporary labor service agency shall make forms, in duplicate, for such requests available to day or temporary laborers at the dispatch office. The day or temporary laborer shall be given a copy of the request form. At the time of registration with the Department under Section 45 of this Act, the day and temporary labor service agency shall submit to the Department, on a form created by the Department, a report containing the information identified in paragraph (9) of subsection (a) of this Section, grouped by branch office, in the aggregate for all day or temporary laborers assigned within this State in the prior year. It is a violation of this Section to make any false, inaccurate or incomplete entry into any record required by this Section, or to delete required information from any such record. Failure by the third party client to remit time records to the day and temporary labor service agency as provided in paragraph (a)(2) shall constitute a notice violation by a third party client under Section 95 of this Act unless the third party client has been precluded from submitting such time records for reasons beyond its control. A failure by the third party client to provide time records in accordance with this subsection (b) shall not be a notice violation and shall not be the basis for a suit or other action under Section 95 of this Act against the day and temporary labor service agency.

(Source: P.A. 94-511, eff. 1-1-06; 95-499, eff. 8-28-07.)

(820 ILCS 175/95)

Sec. 95. Private Right of Action.

(a) A person aggrieved by a violation of this Act or any rule adopted under this Act by a day and temporary labor service agency or a third party client may file suit in circuit court of Illinois, in the county where the alleged offense occurred or where any day or temporary laborer who is party to the action resides, without regard to exhaustion of any alternative administrative remedies provided in this Act. A day and temporary labor service agency aggrieved by a violation of this Act or any rule adopted under this Act by a third party client may file suit in circuit court of Illinois, in the county where the alleged offense occurred or where the day and temporary labor service agency which is party to the action is located. Actions may be brought by one or more day or temporary laborers for and on behalf of themselves and other day or temporary laborers similarly situated. A day or temporary laborer whose rights have been violated under this Act by a day and temporary labor service agency or a third party client or a day and temporary labor service agency whose rights have been violated under this Act by a third party client is entitled to collect:

(1) in the case of a wage and hour violation, the amount of any wages, salary, employment benefits, or other compensation denied or lost to the day or temporary laborer or day and temporary labor service agency by reason of the violation, plus an equal amount in liquidated damages;

(2) in the case of a health and safety or notice violation, compensatory damages and an amount between $50 and up to $500 for each the violation of each subpart of each Section;

(3) in the case of unlawful retaliation, all legal or equitable relief as may be appropriate; and

(4) attorney's fees and costs.

(b) The right of an aggrieved person to bring an action under this Section terminates upon the passing of 3 years from the final date of employment by the day and temporary labor agency or the third party client or upon the passing of 3 years from the date of termination of the contract between the day and temporary labor service agency and the third party client. This limitations period is tolled if a day labor employer has deterred a day and temporary labor service agency or day or temporary laborer's exercise of rights under this Act by contacting or threatening to contact law enforcement agencies.

(Source: P.A. 96-1185, eff. 7-22-10.)