SB1792 94TH GENERAL ASSEMBLY

LRB094 08113 WGH 41317 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB1792

Introduced 2/25/2005, by Sen. Miguel del Valle

SYNOPSIS AS INTRODUCED:

820 ILCS 175/2 new
820 ILCS 175/5
820 ILCS 175/10
820 ILCS 175/12 new
820 ILCS 175/15
820 ILCS 175/20
820 ILCS 175/30
820 ILCS 175/35
820 ILCS 175/40
820 ILCS 175/45
820 ILCS 175/50
820 ILCS 175/55
820 ILCS 175/70
820 ILCS 175/75
820 ILCS 175/85
820 ILCS 175/90 new
820 ILCS 175/95 new
820 ILCS 175/97 new

Amends the Day and Temporary Labor Services Act. Adds legislative findings and provisions concerning recordkeeping, retaliation, private rights of action, and severability. Makes numerous changes concerning definitions, employment notices, meals, transportation, wage payment, notices to laborers, regulation of day and temporary labor service agencies, registration of day and temporary labor service agencies, violations, enforcement, penalties, regulation of third party employers, and other matters.

FISCAL NOTE ACT MAY APPLY

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 5, 10, 15, 20, 30, 35, 40, 45, 50, 55, 70, 75, and 85 and adding Sections 2, 12, 90, 95, and 97 as follows:

(820 ILCS 175/2 new)

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.

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 have been established to provide an alternative for day or temporary laborers to soliciting work on street corners. These centers charge no fee for their services. These centers are not subject to this Act.

(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 and temporary labor" means labor or employment that is occasional or irregular at which a person is employed for not longer than the time period required to complete the assignment for which the person was hired and where wage payments are made directly or indirectly by the day and temporary labor service agency or the third party employer for work undertaken by day or temporary laborers pursuant to a contract between the day and temporary labor service agency with the third party employer. "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 employer pursuant to a contract with the day and temporary labor service and the third party employer.

"Department" means the Department of Labor.

"Third party employer" means any person that contracts with a day and temporary labor service agency for the employment of 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. 91-579, eff. 1-1-00; 92-783, eff. 1-1-03.)

(820 ILCS 175/10)

Sec. 10. Employment Notice Statement.

(a) Whenever a day and temporary labor service agency agrees to send one or more persons to work as day or temporary laborers, the day and temporary labor service agency shall provide to each , upon request by a day or temporary laborer, at the time of dispatch, provide to the day or temporary laborer a statement containing the following items on a form approved by the Department:

(1) the name of the day or temporary laborer;

(2) the name "Name and nature of the work to be performed; ",

(3) the "wages offered;

(4) the name and address of the destination of each day or temporary laborer; ", "destination of the person employed",

(5) terms "terms of transportation; ", and

(6) whether whether a meal or and equipment, or both, is provided, either by the day and temporary labor service agency or the third party employer, and the cost of the meal and equipment, if any.

If the day or temporary laborer is not placed with a third party employer or otherwise contracted to work for that day, the day and temporary labor service agency shall provide the day and temporary laborer with a confirmation that the day or temporary laborer sought work, signed by an employee of the day and temporary labor service agency, which shall include the name of the agency, 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.

(b) No day and temporary labor service agency may send any day or temporary laborer to any place where a strike, a lockout, or other labor trouble exists.

(c) The Department shall recommend to day and temporary labor service agencies that those agencies employ personnel who can effectively communicate information required in subsections (a) and (b) to day or temporary laborers in Spanish, Polish, or any other language that is generally understood used in the locale of the day and temporary labor service agency.

(Source: P.A. 92-783, eff. 1-1-03; 93-375, eff. 1-1-04.)

(820 ILCS 175/12 new)

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 employer, 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;

(3) the name and title of the individual or individuals at each third party employer'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 employer;

(5) copies of all contracts with and invoices for the third party employer;

(6) the period of employment for each day or temporary laborer at the third party employer, and for periods lasting longer than one day, any requirement that the day or temporary laborer report to the day and temporary labor service agency, and at what intervals the day or temporary laborer is required to report;

(7) deductions to be made from each day or temporary laborer's compensation made by either the third party employer 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 and gender of each day or temporary laborer sent by the day and temporary labor service agency, as provided by the day or temporary laborer; and

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

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 relating to an individual day or temporary laborer shall be available for review or copying by that day or temporary laborer during normal business hours within 5 days following a verbal or written request. 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.

(820 ILCS 175/15)

Sec. 15. Meals. A day and temporary labor service agency or a third party employer shall not charge a day or temporary laborer for any meal not consumed by the day and temporary laborer and, if consumed, no more than the actual cost of a meal. In no case shall the purchase of a meal be a condition of employment for a day or temporary laborer.

(Source: P.A. 91-579, eff. 1-1-00; 92-783, eff. 1-1-03.)

(820 ILCS 175/20)

Sec. 20. Transportation.

(a) A day and temporary labor service agency or a third party employer or a contractor or agent of either shall charge no fee more than the actual cost to transport a day or temporary laborer to or from the designated work site.

(b) A day and temporary labor service agency is responsible for the conduct and performance of any person who transports a day or temporary laborer from the agency to a work site, unless the transporter is: (1) a public mass transportation system as defined in Section 2 of the Local Mass Transit District Act; (2) the day or temporary laborer providing his or her own transportation; or (3) selected exclusively by and at the sole choice of the day or temporary laborer for transportation in a vehicle not owned or operated by the day and temporary labor service agency. Any day and temporary labor service agency that knows or should know that a motor vehicle used for the transportation of day or temporary laborers is unsafe, not equipped as required by this Act or by any rule adopted under this Act, may not allow the motor vehicle to be used for the transporting of day laborers.

(c) A day and temporary labor service agency may not refer a day or temporary laborer to any person for transportation to a work site unless that person is (1) a public mass transportation system as defined in Section 2 of the Local Mass Transit District Act or (2) providing the transportation at a fee no greater than that specified in subsection (a) of this Section. Directing the day or temporary laborer to accept a specific car pool as a condition of work shall be considered a referral by the day and temporary labor service agency. Any mention or discussion of the cost of a car pool shall be considered a referral by the agency.

(d) ; however, the total cost to each day or temporary laborer shall not exceed 3% of the day or temporary laborer's daily wages. Any motor vehicle that is owned or operated by the day and temporary labor service agency or a third party employer, or a contractor or agent of either, or to which a day and temporary labor service agency refers a day or temporary laborer, which is used for the transportation of day or temporary laborers shall have proof of financial responsibility as provided for in Chapter 8 of the Illinois Vehicle Code or as required by Department rules. The driver of the vehicle shall hold a valid license to operate motor vehicles in the correct classification and shall be required to produce the license immediately upon demand by the Department, its inspectors or deputies, or any other person authorized to enforce this Act. The Department shall forward a violation of this subsection to the appropriate law enforcement authorities or regulatory agencies, whichever is applicable.

(e) No motor vehicle that is owned or operated by the day and temporary labor service agency or a third party employer, or a contractor or agent of either, or to which a day and temporary labor service agency refers a day or temporary laborer, which is used for the transportation of day or temporary laborers may be operated if it is occupied by more passengers than recommended by the manufacturer of the vehicle if the vehicle is manufactured as a passenger vehicle. If the vehicle is manufactured for use other than as a passenger vehicle, then it may not accommodate more passengers than provided for by the manufacturer in passenger vehicles of like style or rating. The Department shall forward a violation of this subsection to the appropriate law enforcement authorities or regulatory agencies, whichever is applicable.

(Source: P.A. 91-579, eff. 1-1-00; 92-783, eff. 1-1-03.)

(820 ILCS 175/30)

Sec. 30. Wage Payment and Notice.

(a) At the end of each work day and at the time of the payment of wages, a day and temporary labor service agency shall provide each day or temporary laborer with a detailed an itemized statement, on a form approved by the Department, listing the following:

(1) the name, address and telephone number of each third party employer at which the day or temporary laborer worked;

(2) the number of hours worked by the day or temporary laborer at each third party employer each day during the pay period;

(3) the rate of payment for each hour worked, including any premium rate or bonus;

(4) the total pay period earnings;

(5) all deductions made from the day or temporary laborer's compensation made either by the third party employer or by the day and temporary labor service agency, and the purpose for which deductions were made, including for the day or temporary laborer's transportation, food, equipment, withheld income tax, withheld social security payments, and every other deduction; and

(6) any additional information required by rules issued by the Department showing in detail each deduction made from the wages.

(b) A day and temporary labor service agency shall provide each worker an annual earnings summary within a reasonable time after the preceding calendar year, but in no case later than February 1. A day and temporary labor service agency shall, at the time of each wage payment, give notice to day or temporary laborers of the availability of the annual earnings summary or post such a notice in a conspicuous place in the public reception area.

(c) At the request of a day or temporary laborer, a day and temporary labor service agency shall hold the daily wages of the day or temporary laborer and make either weekly or semi-monthly payments. The wages shall be paid in a single check representing the wages earned during the period, either weekly or semi-monthly, designated by the day or temporary laborer in accordance with the Illinois Wage Payment and Collection Act. Day and temporary labor service agencies that make daily wage payments shall provide written notification to all day or temporary laborers of the right to request weekly or semi-monthly checks. The day and temporary labor service agency may provide this notice by conspicuously posting the notice at the location where the wages are received by the day or temporary laborers.

(d) No day and temporary labor service agency shall charge any day or temporary laborer for cashing a check issued by the agency for wages earned by a day or temporary laborer who performed work through that agency.

(e) Day or temporary laborers shall be paid no less than the wage rate stated in the notice as provided in Section 10 of this Act for all the work performed on behalf of the third party employer in addition to the work listed in the written description.

(f) The total amount deducted for meals, equipment, and transportation may not cause a day or temporary laborer's hourly wage to fall below the State or federal minimum wage.

(g) A day or temporary laborer who is contracted by a day and temporary labor service agency to work at a third party employer's worksite but is not contracted by the third party employer shall be paid for all hours required to travel to and from the third party employer's worksite.

(Source: P.A. 91-579, eff. 1-1-00; 92-783, eff. 1-1-03.)

(820 ILCS 175/35)

Sec. 35. Public Access Area. Each day and temporary labor service agency shall provide adequate seating in the public access area of the offices of the agency. The public access area shall be the location for the employment and wage notices required by Section 45 10 of this Act and any other State or federally mandated posting. The public access area shall allow for access to restrooms and water.

(Source: P.A. 91-579, eff. 1-1-00; 92-783, eff. 1-1-03.)

(820 ILCS 175/40)

Sec. 40. Work Restriction. No day and temporary labor service agency shall restrict the right of a day or temporary laborer to accept a permanent position with a third party employer to whom the day or temporary laborer has been referred for work or restrict the right of such third party employer to offer such employment to a day or temporary laborer. Any action by a day and temporary labor service agency to interfere with the right of a day or temporary laborer to accept a permanent position with a third party employer to whom the day or temporary laborer has been referred for work or to restrict the right of the third party employer to offer the employment to a day or temporary laborer shall be considered an act of retaliation against the day or temporary day laborer. A Nothing in this Section shall restrict a day and temporary labor service agency may not charge from receiving a placement fee to a from the third party employer for employing a day or temporary laborer for whom a contract for work was effected by the day and temporary labor service agency.

(Source: P.A. 91-579, eff. 1-1-00; 92-783, eff. 1-1-03.)

(820 ILCS 175/45)

Sec. 45. Registration; Department of Labor.

(a) A day and temporary labor service agency which is located, operates or transacts business within this State shall register with the Department of Labor in accordance with rules adopted by the Department for day and temporary labor service agencies and shall be subject to this Act and any rules adopted under this Act that operate within the State. The Department may assess each day and temporary labor service agency a non-refundable registration fee not exceeding $1,000 $250 per year per agency and a non-refundable fee not to exceed $250 for each branch office or other location where the agency regularly contracts with day or temporary laborers for services. The fee may be paid by check or money order and the Department may not refuse to accept a check on the basis that it is not a certified check or a cashier's check. The Department may charge an additional fee to be paid by a day and temporary labor service an agency if the agency, or any person on the agency's behalf, issues or delivers a check to the Department that is not honored by the financial institution upon which it is drawn. The Department shall also adopt rules for violation hearings and penalties for violations of this Act or the Department's rules in conjunction with the fines and penalties set forth in this Act.

(b) It is a violation of this Act to operate a day and temporary labor service agency without first registering with the Department in accordance with subsection (a) of this Section. The Department has the authority to assess a penalty against any day and temporary labor service agency that fails to register with the Department of Labor in accordance with this Act or any rules adopted under this Act of $500 for each violation. Each day during which a day and temporary labor service agency operates without registering with the Department shall be a separate and distinct violation of this Act.

(c) An applicant is not eligible to register to operate a day and temporary labor service agency under this Act if the applicant or any of its officers, directors, partners, or managers or any owner of 25% or greater beneficial interest:

(1) has been involved, as owner, officer, director, partner, or manager, of any day and temporary labor service agency whose registration has been revoked or has been suspended without being reinstated within the 7 years immediately preceding the filing of the application; or

(2) is under the age of 18.

(d) Every agency shall post and keep posted at each location, in a position easily accessible to all employees, notices as supplied and required be the Department containing a copy or summary of the provisions of the Act and The Department shall cause to be posted in each agency a notice which informs the public of a toll-free telephone number for day or temporary laborers and the public to file wage dispute complaints and other alleged violations by day and temporary labor service agencies. Such notices shall be in English or any other language generally understood in the locale of the day and temporary labor service agency.

(Source: P.A. 91-579, eff. 1-1-00; 92-783, eff. 1-1-03.)

(820 ILCS 175/50)

Sec. 50. Violations. The Department shall have the authority to deny, suspend, or revoke the registration of a day and temporary labor service agency if warranted by public health and safety concerns or violations of this Act.

(Source: P.A. 91-579, eff. 1-1-00; 92-783, eff. 1-1-03.)

(820 ILCS 175/55)

Sec. 55. Enforcement. It shall be the duty of the Department to enforce the provisions of this Act. The Department shall have the power to conduct investigations in connection with the administration and enforcement of this Act and any investigator with the Department shall be authorized to visit and inspect, at all reasonable times, any places covered by this Act and shall be authorized to inspect, at all reasonable times, contracts for the employment of all day or temporary laborers entered into by a third party employer if the Department has received a complaint indicating that the third party employer may have contracted with a day and temporary labor service agency that is not registered under this Act. The Department shall conduct hearings in accordance with the Illinois Administrative Procedure Act upon written complaint by an investigator of the Department or any interested person of a violation of the Act. After the hearing, if supported by the evidence, the Department may (i) issue and cause to be served on any party an order to cease and desist from further violation of the Act, (ii) take affirmative or other action as deemed reasonable to eliminate the effect of the violation, (iii) deny, suspend, or revoke any registration under this Act, and (iv) determine the amount of any civil penalty allowed by the Act. The Director of Labor or his or her representative may compel, by subpoena, the attendance and testimony of witnesses and the production of books, payrolls, records, papers, and other evidence in any investigation or hearing and may administer oaths to witnesses; however, proprietary lists of a day and temporary labor service agency are not subject to subpoena. Nothing in this Act applies to labor or employment of a clerical or professional nature.

(Source: P.A. 92-783, eff. 1-1-03; 93-441, eff. 1-1-04.)

(820 ILCS 175/70)

Sec. 70. Penalties.

(a) A day and temporary labor service agency that violates any of the provisions of this Act or any rule adopted under this Act concerning registration, transportation, equipment, meals, wages, or waiting rooms shall be subject to a civil penalty not to exceed $1,000 $500 for each violation any violations found in the first audit by the Department and not to exceed $5,000 for any repeat violation violations found by in the second audit by the Department within 7 years. For purposes of this subsection, each violation of this Act for each day or temporary laborer and for each day the violation continues shall constitute a separate and distinct violation. For any violations that are found in a third audit by the Department that are within 7 years of the earlier violations, the Department may revoke the registration of the violator. In determining the amount of a penalty, the Director shall consider the appropriateness of the penalty to the day and temporary labor service agency charged, upon the determination of the gravity of the violations. For any violation determined by the Department to be willful which is within 7 years of an earlier violation, the Department may revoke the registration of the violator. The amount of the penalty, when finally determined, may be:

(1) Recovered in a civil action brought by the Director of Labor in any circuit court. In this litigation, the Director of Labor shall be represented by the Attorney General.

(2) Ordered by the court, in an action brought by any party for a violation under this Act, to be paid to the Director of Labor.

(b) The Department shall adopt rules for violation hearings and penalties for violations of this Act or the Department's rules in conjunction with the penalties set forth in this Act.

Any administrative determination by the Department as to the amount of each penalty shall be final unless reviewed as provided in Section 60 of this Act.

(Source: P.A. 92-783, eff. 1-1-03.)

(820 ILCS 175/75)

Sec. 75. Willful violations.

(a) Whoever willfully violates any of the provisions of this Act or any rule adopted under this Act, or whoever obstructs the Department of Labor, its inspectors or deputies, or any other person authorized to inspect places of employment under this Act shall be liable for penalties up to double the statutory amount.

(b) Whoever willfully violates any of the provisions of this Act or any rule adopted under this Act which results in an underpayment to a day or temporary laborer shall be liable to the Department for up to 20% of the employer's total underpayment and shall also be liable to the employee for punitive damages in the amount of 2% of the amount of any such underpayments for each month following the date of payment during which the underpayments remain unpaid.

(c) The Director may promulgate rules for the collection of these penalties. The penalty shall be imposed in cases in which an employer's conduct is proven by a preponderance of the evidence to be willful. The penalty may be recovered in a civil action brought by the Director of Labor in any circuit court. In any such action, the Director of Labor shall be represented by the Attorney General. guilty of a Class A misdemeanor. Each day during which a violation of this Act continues shall constitute a separate and distinct offense, and the employment of any person in violation of the Act shall, with respect to each person so employed, constitute a separate and distinct offense. Whenever, in the opinion of the Department, a violation of the Act has occurred, the Department shall report the violation to the Attorney General of this State who shall have authority to prosecute all reported violations.

(Source: P.A. 92-783, eff. 1-1-03.)

(820 ILCS 175/85)

Sec. 85. Third party employers.

(a) It is a violation of this Act for a third party employer to enter into a contract Third party employers are prohibited from entering into contracts for the employment of day or temporary laborers with any day and temporary labor service agency not registered under Section 45 of this Act. A third party employer has a duty to verify a day and temporary labor service agency's status with the Department before entering into a contract with such an agency. Upon request, the Department shall provide to a third party employer a list of entities registered as day and temporary labor service agencies. The Department shall provide on the Internet a list of entities registered as day and temporary labor service agencies. Any third party employer that violates this provision of the Act is subject to a civil penalty not to exceed $500. Each day during which a third party employer contracts with a day and temporary labor service agency not registered under Section 45 of this Act shall constitute a separate and distinct offense.

(b) If a third party employer leases or contracts with a day and temporary service agency for the services of day or temporary laborer, the third party employer shall be a joint employer of the day or temporary laborer and shall share all legal responsibility and liability for the payment of wages under the Illinois Wage Payment and Collection Act and the Minimum Wage Law.

(Source: P.A. 93-441, eff. 1-1-04.)

(820 ILCS 175/90 new)

Sec. 90. Retaliation.

(a) Prohibition. It is a violation of this Act for a day and temporary labor service agency or third party employer, or any agent of a day and temporary labor service agency or third party employer, to retaliate through discharge or in any other manner against any day or temporary laborer for exercising any rights granted under this Act. Such retaliation shall subject a day and temporary labor service agency or third party employer, or both, to civil penalties pursuant to this Act or a private cause of action.

(b) Protected Acts from Retaliation. It is a violation of this Act for a day and temporary labor service agency or third party employer to retaliate against a day or temporary laborer for:

(1) making a complaint to the day or temporary laborer's employer, to a co-worker, to a community organization, before a public hearing, or to a State or federal agency that rights guaranteed under this Act have been violated;

(2) causing to be instituted any proceeding under or related to this Act; or

(3) testifying or preparing to testify in an investigation or proceeding under this Act.

(820 ILCS 175/95 new)

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 employer may file suit in circuit court of Illinois without regard to exhaustion of any alternative administrative remedies provided in this Act. 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 employer 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 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 up to $500 for 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.

If a finding of liability is established against a violator under this Section and the violator's registration has previously been revoked under Section 50, 55, or 70 of this Act, then any aggrieved party may name any or all corporate officers individually as defendants in any such action.

(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 employer. This limitations period is tolled if a day labor employer has deterred a day or temporary laborer's exercise of rights under this Act by contacting or threatening to contact law enforcement agencies.

(820 ILCS 175/97 new)

Sec. 97. Severability. Should one or more of the provisions of this Act be held invalid, such invalidity shall not affect any of the valid provisions hereof.