SB3650ham001 103RD GENERAL ASSEMBLY

Rep. Edgar Gonzalez, Jr.

Filed: 5/14/2024

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 3650

2    AMENDMENT NO. ______. Amend Senate Bill 3650 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Day and Temporary Labor Services Act is
5amended by changing Sections 5, 10, 11, 42, 45, 55, and 85 and
6by adding Section 43 as follows:
 
7    (820 ILCS 175/5)
8    Sec. 5. Definitions. As used in this Act:
9    "Applicant" means a natural person who seeks a work
10assignment at a day and temporary labor service agency.
11    "Day or temporary laborer" means a natural person who
12contracts for employment with a day and temporary labor
13service agency.
14    "Day and temporary labor" means work performed by a day or
15temporary laborer at a third party client, the duration of
16which may be specific or undefined, pursuant to a contract or

 

 

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1understanding between the day and temporary labor service
2agency and the third party client. "Day and temporary labor"
3does not include labor or employment of a professional or
4clerical nature.
5    "Day and temporary labor service agency" means any person
6or entity engaged in the business of employing day or
7temporary laborers to provide services, for a fee, to or for
8any third party client pursuant to a contract with the day and
9temporary labor service agency and the third party client.
10    "Department" means the Department of Labor.
11    "Interested party" means an organization that monitors or
12is attentive to compliance with public or worker safety laws,
13wage and hour requirements, or other statutory requirements.
14    "Labor dispute" means any controversy concerning wages,
15hours, terms, or conditions of employment.
16    "Third party client" means any person that contracts with
17a day and temporary labor service agency for obtaining day or
18temporary laborers.
19    "Person" means every natural person, firm, partnership,
20co-partnership, limited liability company, corporation,
21association, business trust, or other legal entity, or its
22legal representatives, agents, or assigns.
23(Source: P.A. 103-437, eff. 8-4-23.)
 
24    (820 ILCS 175/10)
25    Sec. 10. Employment notice and application receipt.

 

 

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1Notice.
2    (a) Employment notice. Whenever a day and temporary labor
3service agency agrees to send one or more persons to work as
4day or temporary laborers, the day and temporary labor service
5agency shall provide to each day or temporary laborer, at the
6time of dispatch, a statement containing the following items
7on a form approved by the Department:
8        (1) the name of the day or temporary laborer;
9        (2) the name and nature of the work to be performed,
10    including a list of basic job duties, and the types of
11    equipment, protective clothing, and training that are
12    required for the task;
13        (3) the wages offered;
14        (4) the name and address, including county, of the
15    destination of each day or temporary laborer;
16        (5) terms of transportation; and
17        (6) whether a meal or equipment, or both, are
18    provided, either by the day and temporary labor service
19    agency or the third party client, and the cost of the meal
20    and equipment, if any; and .
21        (7) for a day or temporary laborer entitled to the pay
22    requirements described in Section 42, either:
23            (A) the seniority and hourly wage of the
24        comparator being used to determine the wage if the
25        wage is determined under paragraph (1) of subsection
26        (a) of Section 42; or

 

 

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1            (B) the standard occupational classification used
2        if the wage is determined under paragraph (2) of
3        subsection (a) of Section 42.
4    If a day or temporary laborer is assigned to the same
5assignment for more than one day, the day and temporary labor
6service agency is required to provide the employment notice
7only on the first day of the assignment and on any day that any
8of the terms listed on the employment notice are changed.
9    If the day or temporary laborer is not placed with a third
10party client or otherwise contracted to work for that day, the
11day and temporary labor service agency shall, upon request,
12provide the day and temporary laborer with a confirmation that
13the day or temporary laborer sought work, signed by an
14employee of the day and temporary labor service agency, which
15shall include the name of the agency, the name and address of
16the day or temporary laborer, and the date and the time that
17the day or temporary laborer receives the confirmation.
18     (b) (Blank). No day and temporary labor service agency
19may send any day or temporary laborer to any place where a
20strike, a lockout, or other labor trouble exists.
21    (b-5) Application receipt. If an applicant seeks a work
22assignment as a day or temporary laborer with a day and
23temporary labor service agency, including in-person, online,
24or through an app-based system, and is not placed with a third
25party client or otherwise contracted to work for that day by
26the day and temporary labor service agency, the day and

 

 

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1temporary labor service agency shall provide the applicant
2with a confirmation that the applicant sought work, signed by
3an employee of the day and temporary labor service agency, on a
4form approved by the Department, that shall include:
5        (1) the name and location of the day and temporary
6    labor service agency and branch office;
7        (2) the name and address of the applicant;
8        (3) the date and the time that the applicant sought
9    the work assignment;
10        (4) the manner in which the applicant sought the work
11    assignment; and
12        (5) the specific work sites or type of jobs sought by
13    the applicant, if applicable.
14     (c) The Department shall recommend to day and temporary
15labor service agencies that those agencies employ personnel
16who can effectively communicate information required in
17subsections (a) and (b-5) (b) to day or temporary laborers in
18Spanish, Polish, or any other language that is generally
19understood in the locale of the day and temporary labor
20service agency.
21(Source: P.A. 99-78, eff. 7-20-15; 100-517, eff. 6-1-18.)
 
22    (820 ILCS 175/11)
23    Sec. 11. Right to refuse assignment to a labor dispute.
24    (a) No day and temporary labor service agency may send a
25day or temporary laborer to a place where a strike, a lockout,

 

 

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1or work stoppage other labor trouble exists because of a labor
2dispute or where a picket, bannering, or handbilling exists
3because of a labor dispute without providing, at or before the
4time of dispatch, a statement, in writing and in a language
5that the day and temporary laborer understands, informing the
6day or temporary laborer of the labor dispute and the day or
7temporary laborer's right to refuse the assignment without
8prejudice to receiving another assignment.
9    (b) The failure by a day and temporary labor service
10agency to provide any of the information required by this
11Section shall constitute a notice violation under Section 95.
12The failure of a day and temporary labor service agency to
13provide each piece of information required by this Section at
14each time it is required by this Section shall constitute a
15separate and distinct notice violation. If a day and temporary
16labor service agency claims that it has provided a notice as
17required under this Section electronically, the day and
18temporary labor service agency shall bear the burden of
19showing that the notice was provided if there is a dispute.
20(Source: P.A. 103-437, eff. 8-4-23.)
 
21    (820 ILCS 175/42)
22    Sec. 42. Equal pay for equal work.
23    (a) A day and temporary labor service agency shall pay a A
24day or temporary laborer who is assigned to work and performs
25work at the same a third party client for more than 720 hours

 

 

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1within a 12-month period, beginning on or after April 1, 2024,
2in accordance with one of the following methods: 90 calendar
3days shall be paid not less than the rate of pay and equivalent
4benefits as the lowest paid
5        (1) Third party client employee compensation as a
6    basis for compensation. The day or temporary laborer shall
7    be paid as follows:
8            (A) if there is a directly hired comparator
9        employee of the third party client with the same or
10        substantially similar level of seniority at the
11        company and performing the same or substantially
12        similar work on jobs the performance of which requires
13        substantially similar skill, effort, and
14        responsibility, and that are performed under similar
15        working conditions, not less than the straight-time
16        hourly rate of pay or hourly equivalent of the lowest
17        paid directly hired comparator employee of the third
18        party client who is entitled to overtime under the
19        Fair Labor Standards Act of 1938, as amended, with the
20        same or substantially similar level of seniority at
21        the company and performing the same or substantially
22        similar work on jobs the performance of which requires
23        substantially similar skill, effort, and
24        responsibility, and that are performed under similar
25        working conditions; or .
26            (B) if If there is not a directly hired comparator

 

 

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1        comparative employee of the third party client, the
2        day or temporary laborer shall be paid not less than
3        the straight-time hourly rate of pay or hourly and
4        equivalent benefits of the lowest paid directly direct
5        hired employee of the third party client who is
6        entitled to overtime under the Fair Labor Standards
7        Act of 1938, as amended, company with the closest
8        level of seniority at the third party client company.
9        A day and temporary labor service agency may pay the
10        hourly cash equivalent of the actual cost benefits in
11        lieu of benefits required under this Section.
12        (2) Bureau of Labor Statistics data as a basis for
13    compensation. At the sole discretion of the third party
14    client, the day or temporary laborer shall be paid as
15    follows:
16            (A) if a day or temporary laborer has been
17        assigned to work and performs work at the same third
18        party client for more than 720 hours within a 12-month
19        period, not less than the median base hourly rate, or
20        hourly equivalent if paid on a salary basis, of
21        workers working in the same or a substantially similar
22        job classification, as reflected in the detail level
23        of the most recent Standard Occupational
24        Classification System published by the United States
25        Department of Labor's Bureau of Labor Statistics, in
26        the same metropolitan area or non-metropolitan area of

 

 

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1        Illinois where the work is performed, as reflected in
2        the most recent Occupational Employment and Wage
3        Statistics Survey, or any successor publication,
4        published by the United States Department of Labor's
5        Bureau of Labor Statistics; or
6            (B) if a day or temporary laborer has been
7        assigned to work and performs work at the same third
8        party client for more than 4,160 hours within a
9        48-month period, not less than the 75th percentile
10        base hourly rate, or hourly equivalent if paid on a
11        salary basis, of workers working in the same or
12        substantially similar job classification, as reflected
13        in the detail level of the most recent Standard
14        Occupational Classification System published by the
15        United States Department of Labor's Bureau of Labor
16        Statistics, in the same metropolitan area or
17        non-metropolitan area of Illinois where the work is
18        performed, as reflected in the most recent
19        Occupational Employment and Wage Statistics Survey, or
20        any successor publication, published by the United
21        States Department of Labor's Bureau of Labor
22        Statistics.
23        The Department shall provide on its website a link to
24    the publications specified in this paragraph and a link to
25    the United States Department of Labor's guidance on
26    determining standard occupational classifications.

 

 

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1    (b) A day and temporary labor agency shall provide a day or
2temporary laborer who is assigned to work and performs work at
3the same third party client for more than 720 hours within a
412-month period, beginning on or after April 1, 2024,
5substantially similar benefits to the job classification of
6employees performing the same or substantially similar work on
7jobs and performed under similar working conditions. A day and
8temporary labor service agency may pay the hourly average cash
9equivalent of the actual cost of the benefits the third party
10client provides the applicable directly hired employees in
11lieu of benefits required under this subsection.
12    (c) Upon request, a third party client to which a day or
13temporary laborer has been assigned to work and performed work
14for more than 720 hours within a 12-month period or 4,160 hours
15within a 48-month period 90 calendar days shall be obligated
16to timely provide the day and temporary labor service agency
17with all necessary information related to job duties, working
18conditions, pay, seniority, and benefits it provides to the
19applicable classification of directly hired employees
20necessary for the day and temporary labor service agency to
21comply with this Section. Upon receipt of the accurate and
22complete information described in this subsection from the
23third party client, it shall be the responsibility and duty of
24the day and temporary labor service agency to calculate and
25determine the straight-time hourly rate of pay and the
26benefits it shall offer to the day or temporary laborer,

 

 

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1including any cash equivalent. The failure by a third party
2client to provide any of the information required under this
3Section shall constitute a notice violation by the third party
4client under Section 95. For purposes of this Section, the day
5and temporary labor service agency shall be considered a
6person aggrieved as described in Section 95. For the purposes
7of this Section, the calculation of the 90 calendar days may
8not begin until April 1, 2024.
9    (d) For purposes of this Section, "seniority" means the
10number of calendar months a day or temporary laborer has been
11assigned to and worked at the third party client compared to
12the number of calendar months a directly hired comparator
13employee has been employed by the third party client.
14(Source: P.A. 103-437, eff. 8-4-23; 103-564, eff. 11-17-23.)
 
15    (820 ILCS 175/43 new)
16    Sec. 43. Exception to equal pay requirements. The
17requirements set forth in Section 42 shall not apply to any
18company where the direct hire employees of the third party
19client performing the same or substantially similar work as
20the day or temporary laborers assigned to work at the third
21party client are covered by a valid collective bargaining
22agreement in effect on April 1, 2024 for the period covered by
23that current collective bargaining agreement. Thereafter, the
24hourly cash payment specified in subsection (b) of Section 42
25shall not be required if the direct hire employees of the third

 

 

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1party client performing the same or substantially similar work
2as the day or temporary laborers assigned to work at the third
3party client are covered by a valid collective bargaining
4agreement for any period covered by that collective bargaining
5agreement.
 
6    (820 ILCS 175/45)
7    Sec. 45. Registration; Department of Labor.
8    (a) A day and temporary labor service agency which is
9located, operates or transacts business within this State
10shall register with the Department of Labor in accordance with
11rules adopted by the Department for day and temporary labor
12service agencies and shall be subject to this Act and any rules
13adopted under this Act. Each day and temporary labor service
14agency shall provide proof of an employer account number
15issued by the Department of Employment Security for the
16payment of unemployment insurance contributions as required
17under the Unemployment Insurance Act, and proof of valid
18workers' compensation insurance in effect at the time of
19registration covering all of its employees. If, at any time, a
20day and temporary labor service agency's workers' compensation
21insurance coverage lapses, the agency shall have an
22affirmative duty to report the lapse of such coverage to the
23Department and the agency's registration shall be suspended
24until the agency's workers' compensation insurance is
25reinstated. The Department may assess each day and temporary

 

 

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1labor service agency a non-refundable registration fee not
2exceeding $3,000 per year per agency and a non-refundable fee
3not to exceed $750 for each branch office or other location
4where the agency regularly contracts with day or temporary
5laborers for services. The fee may be paid by check, money
6order, or the State Treasurer's E-Pay program or any successor
7program, and the Department may not refuse to accept a check on
8the basis that it is not a certified check or a cashier's
9check. The Department may charge an additional fee to be paid
10by a day and temporary labor service agency if the agency, or
11any person on the agency's behalf, issues or delivers a check
12to the Department that is not honored by the financial
13institution upon which it is drawn. The Department shall also
14adopt rules for violation hearings and penalties for
15violations of this Act or the Department's rules in
16conjunction with the penalties set forth in this Act.
17    (a-1) At the time of registration with the Department of
18Labor each year, the day and temporary labor service agency
19shall submit to the Department of Labor a report containing
20the information identified in paragraph (9) of subsection (a)
21of Section 12, broken down by branch office, in the aggregate
22for all day or temporary laborers assigned within Illinois and
23subject to this Act during the preceding year. This
24information shall be submitted on a form created by the
25Department of Labor. The Department of Labor shall aggregate
26the information submitted by all registering day and temporary

 

 

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1labor service agencies by removing identifying data and shall
2have the information available to the public only on a
3municipal and county basis. As used in this paragraph,
4"identifying data" means any and all information that: (i)
5provides specific information on individual worker identity;
6(ii) identifies the service agency in any manner; and (iii)
7identifies clients utilizing the day and temporary labor
8service agency or any other information that can be traced
9back to any specific registering day and temporary labor
10service agency or its client. The information and reports
11submitted to the Department of Labor under this subsection by
12the registering day and temporary labor service agencies are
13exempt from inspection and copying under Section 7.5 of the
14Freedom of Information Act.
15    (b) It is a violation of this Act to operate a day and
16temporary labor service agency without first registering with
17the Department in accordance with subsection (a) of this
18Section. The Department shall create and maintain at regular
19intervals on its website, accessible to the public: (1) a list
20of all registered day and temporary labor service agencies in
21the State whose registration is in good standing; (2) a list of
22day and temporary labor service agencies in the State whose
23registration has been suspended, including the reason for the
24suspension, the date the suspension was initiated, and the
25date, if known, the suspension is to be lifted; and (3) a list
26of day and temporary labor service agencies in the State whose

 

 

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1registration has been revoked, including the reason for the
2revocation and the date the registration was revoked. The
3Department has the authority to assess a penalty against any
4day and temporary labor service agency that fails to register
5with the Department of Labor in accordance with this Act or any
6rules adopted under this Act of $500 for each violation. Each
7day during which a day and temporary labor service agency
8operates without registering with the Department shall be a
9separate and distinct violation of this Act.
10    (c) A day and temporary labor service agency applying for
11registration with the Department An applicant is not eligible
12to register to operate a day and temporary labor service
13agency under this Act if the day and temporary labor service
14agency applying for registration with the Department applicant
15or any of its officers, directors, partners, or managers or
16any owner of 25% or greater beneficial interest:
17        (1) has been involved, as owner, officer, director,
18    partner, or manager, of any day and temporary labor
19    service agency whose registration has been revoked or has
20    been suspended without being reinstated within the 5 years
21    immediately preceding the filing of the application; or
22        (2) is under the age of 18.
23    (d) Every agency shall post and keep posted at each
24location, in a position easily accessible to all day or
25temporary laborers s, notices as supplied and required by the
26Department containing a copy or summary of the provisions of

 

 

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1the Act and a notice which informs the public of a toll-free
2telephone number for day or temporary laborers and the public
3to file wage dispute complaints and other alleged violations
4by day and temporary labor service agencies. Every day and
5temporary labor service agency employing day or temporary
6laborers who communicate with the day and temporary labor
7service agency by electronic communication shall also provide
8all required notices by email to its day or temporary laborers
9or on a website, regularly used by the employer to communicate
10work-related information, that all day or temporary laborers
11are able to regularly access, freely and without interference.
12Such notices shall be in English and any other language
13generally understood in the locale of the day and temporary
14labor service agency.
15(Source: P.A. 103-201, eff. 1-1-24; 103-437, eff. 8-4-23;
16revised 12-15-23.)
 
17    (820 ILCS 175/55)
18    Sec. 55. Enforcement by the Department. It shall be the
19duty of the Department to enforce the provisions of this Act
20when, in the Department's judgment, there is cause and
21sufficient resources for investigation. The Department shall
22have the power to conduct investigations in connection with
23the administration and enforcement of this Act and any
24investigator with the Department shall be authorized to visit
25and inspect, at all reasonable times, any places covered by

 

 

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1this Act and shall be authorized to inspect, at all reasonable
2times, contracts for the employment of all day or temporary
3laborers entered into by a third party client if the
4Department has received a complaint indicating that the third
5party client may have contracted with a day and temporary
6labor service agency that is not registered under this Act.
7The Department shall conduct hearings in accordance with the
8Illinois Administrative Procedure Act upon written complaint
9by an investigator of the Department or any interested person
10of a violation of the Act. After the hearing, if supported by
11the evidence, the Department may (i) issue and cause to be
12served on any party an order to cease and desist from further
13violation of the Act, (ii) take affirmative or other action as
14deemed reasonable to eliminate the effect of the violation,
15(iii) deny, suspend, or revoke any registration under this
16Act, and (iv) determine the amount of any civil penalty
17allowed by the Act. The Director of Labor or his or her
18representative may compel, by subpoena, the attendance and
19testimony of witnesses and the production of books, payrolls,
20records, papers, and other evidence in any investigation or
21hearing and may administer oaths to witnesses. Nothing in this
22Act applies to labor or employment of a clerical or
23professional nature.
24(Source: P.A. 103-437, eff. 8-4-23.)
 
25    (820 ILCS 175/85)

 

 

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1    Sec. 85. Third party clients.
2    (a) It is a violation of this Act for a third party client
3to enter into a contract for the employment of day or temporary
4laborers with any day and temporary labor service agency not
5registered under Section 45 of this Act. A third party client
6has a duty to verify a day and temporary labor service agency's
7status with the Department before entering into a contract
8with such an agency, and on March 1 and September 1 of each
9year. A day and temporary labor service agency shall be
10required to provide each of its third party clients with proof
11of valid registration issued by the Department at the time of
12entering into a contract. A day and temporary labor service
13agency shall be required to notify, both by telephone and in
14writing, each day or temporary laborer it employs and each
15third party client with whom it has a contract within 24 hours
16of any denial, suspension, or revocation of its registration
17by the Department. All contracts between any day and temporary
18labor service agency and any third party client shall be
19considered null and void from the date any such denial,
20suspension, or revocation of registration becomes effective
21and until such time as the day and temporary labor service
22agency becomes registered and considered in good standing by
23the Department as provided in Section 50 and Section 55. Upon
24request, the Department shall provide to a third party client
25a list of entities registered as day and temporary labor
26service agencies. The Department shall provide on the Internet

 

 

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1a list of entities registered as day and temporary labor
2service agencies. A third party client may rely on information
3provided by the Department or maintained on the Department's
4website pursuant to Section 45 of this Act and shall be held
5harmless if such information maintained or provided by the
6Department was inaccurate. Any third party client that
7violates this provision of the Act is subject to a civil
8penalty of not less than $100 and not to exceed $1,500. Each
9day during which a third party client contracts with a day and
10temporary labor service agency not registered under Section 45
11of this Act shall constitute a separate and distinct offense.
12    (b) If a third party client leases or contracts with a day
13and temporary service agency for the services of a day or
14temporary laborer, the third party client shall share all
15legal responsibility and liability for the payment of wages
16under the Illinois Wage Payment and Collection Act and the
17Minimum Wage Law.
18    (c) Before the assignment of an employee to a worksite
19employer, a day and temporary labor service agency must:
20        (1) inquire about the client company's safety and
21    health practices and hazards at the actual workplace where
22    the day or temporary laborer will be working to assess the
23    safety conditions, workers tasks, and the client company's
24    safety program; these activities are required at the start
25    of any contract to place day or temporary laborers and may
26    include visiting the client company's actual worksite. If,

 

 

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1    during the inquiry or anytime during the period of the
2    contract, the day and temporary labor service agency
3    becomes aware of existing job hazards that are not
4    mitigated by the client company, the day and temporary
5    labor service agency must make the client company aware,
6    urge the client company to correct it, and document these
7    efforts, otherwise the day and temporary labor service
8    agency must remove the day or temporary laborers from the
9    client company's worksite;
10        (2) provide training to the day or temporary laborer
11    for general awareness safety training for recognized
12    industry hazards the day or temporary laborer may
13    encounter at the client company's worksite. Industry
14    hazard training must be completed, in the preferred
15    language of the day or temporary laborer, and must be
16    provided at no expense to the day or temporary laborer.
17    The training date and training content must be maintained
18    by the day and temporary staffing agency and provided to
19    the day or temporary laborer;
20        (3) transmit a general description of the training
21    program including topics covered to the client company,
22    whether electronically or on paper, at the start of the
23    contract with the client company;
24        (4) provide the Department's hotline number for the
25    employee to call to report safety hazards and concerns as
26    part of the employment materials provided to the day or

 

 

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1    temporary laborer; and
2        (5) inform the day or temporary laborer who the day or
3    temporary laborer should report safety concerns to at the
4    workplace.
5    Nothing in this Section shall diminish any existing client
6company or a day and temporary labor service agency's
7responsibility as an employer to provide a place of employment
8free from recognized hazards or to otherwise comply with other
9health and safety or employment laws. The client company and
10the day and temporary labor service agency are responsible for
11compliance with this Section and the rules adopted under this
12Section.
13    (d) Before the day or temporary laborer engages in work
14for a client company, the client company must:
15        (1) document and inform the day and temporary labor
16    service agency about anticipated job hazards likely
17    encountered by the day or temporary laborer;
18        (2) review the safety and health awareness training
19    provided by the day and temporary labor service agency to
20    determine if it addresses recognized hazards for the
21    client company's industry;
22        (3) provide specific training tailored to the
23    particular hazards at the client company's worksite
24    consistent with training requirements provided for in
25    standards, guidances, or best practices issued by the
26    federal Occupational Safety and Health Administration; and

 

 

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1        (4) document and maintain records of site-specific
2    training and provide confirmation that the training
3    occurred to the day and temporary labor service agency
4    within 3 business days of providing the training.
5    (e) If the client company changes the job tasks or work
6location and new hazards may be encountered, the client
7company must:
8        (1) inform both the day and temporary labor service
9    agency and the day or temporary laborer; and
10        (2) inform both the day and temporary labor service
11    agency staffing agency and the day or temporary laborer of
12    job hazards not previously covered before the day or
13    temporary laborer undertakes the new tasks and update
14    personal protective equipment and training for the new job
15    tasks consistent with training requirements provided for
16    in standards, guidances, or best practices issued by the
17    federal Occupational Safety and Health Administration, if
18    necessary.
19    (f) A day and temporary labor service agency or day or
20temporary laborer may refuse a new job task at the worksite
21when the task has not been reviewed or if the day or temporary
22laborer has not had appropriate training to do the new task.
23    (g) A client company that supervises a day or temporary
24laborer must provide worksite specific training to the day or
25temporary laborer and must allow a day and temporary labor
26service agency to visit any worksite where the day or

 

 

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1temporary laborer works or will be working to observe and
2confirm the client company's training and information related
3to the worksite's job tasks, safety and health practices, and
4hazards.
5(Source: P.A. 103-437, eff. 8-4-23.)
 
6    Section 99. Effective date. This Act takes effect upon
7becoming law.".