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Rep. Carol Ammons
Filed: 3/9/2017
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1 | | AMENDMENT TO HOUSE BILL 690
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2 | | AMENDMENT NO. ______. Amend House Bill 690 by replacing |
3 | | everything after the enacting clause with the following:
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4 | | "Section 5. The Day and Temporary Labor Services Act is |
5 | | amended by changing Sections 2, 5, 10, 12, 20, 30, 40, 45, 85, |
6 | | 90, and 95 as follows:
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7 | | (820 ILCS 175/2)
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8 | | Sec. 2. Legislative Findings.
The General Assembly finds |
9 | | as follows: |
10 | | Over 300,000 workers work as day or temporary laborers in |
11 | | Illinois. |
12 | | Approximately 150 day labor and temporary labor service |
13 | | agencies with nearly 600 branch offices are licensed throughout |
14 | | Illinois. In addition, there is a large, though unknown, number |
15 | | of unlicensed day labor and temporary labor service agencies |
16 | | that operate outside the radar of law enforcement. |
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1 | | Recent studies and a survey of low-wage day or temporary |
2 | | laborers themselves finds that as a group, they are |
3 | | particularly vulnerable to abuse of their labor rights, |
4 | | including unpaid wages, failure to pay for all hours worked, |
5 | | minimum wage and overtime violations, and unlawful deduction |
6 | | from pay for meals, transportation, equipment and other items |
7 | | as well as discriminatory practices . |
8 | | Current law is inadequate to protect the labor and |
9 | | employment rights of these workers. |
10 | | At the same time, in Illinois and in other states, |
11 | | democratically run nonprofit day labor centers, which charge no |
12 | | fee for their services, have been established to provide an |
13 | | alternative for day or temporary laborers to solicit work on |
14 | | street corners. These centers are not subject to this Act.
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15 | | (Source: P.A. 94-511, eff. 1-1-06.)
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16 | | (820 ILCS 175/5)
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17 | | Sec. 5. Definitions. As used in this Act:
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18 | | "Day or temporary laborer" means an individual a natural |
19 | | person who contracts
for employment
with a day and temporary |
20 | | labor service agency.
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21 | | "Day and temporary labor" means work performed by a day or |
22 | | temporary laborer at a third party client, the duration of |
23 | | which may be specific or undefined, pursuant to a contract or |
24 | | understanding between the day and temporary labor service |
25 | | agency and the third party client.
"Day and temporary labor" |
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1 | | does not include labor or employment of
a professional or
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2 | | clerical nature.
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3 | | "Day and temporary labor service agency" means any person |
4 | | or
entity engaged in
the business of employing day or temporary |
5 | | laborers to provide
services, for a fee, to or for any
third |
6 | | party client pursuant to a contract with the day and temporary
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7 | | labor service agency and
the third party client.
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8 | | "Department" means the Department of Labor.
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9 | | "Third party client" means any person that contracts with a
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10 | | day and temporary labor
service agency for obtaining day or |
11 | | temporary laborers.
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12 | | "Person" means every natural person, firm, partnership, |
13 | | co-partnership, limited liability company, corporation, |
14 | | association, business trust, or other legal entity, or its |
15 | | legal representatives, agents, or assigns.
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16 | | (Source: P.A. 94-511, eff. 1-1-06; 95-499, eff. 8-28-07.)
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17 | | (820 ILCS 175/10)
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18 | | Sec. 10. Employment Notice.
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19 | | (a) Whenever a day and temporary labor service agency |
20 | | agrees
to send one or more persons to work as day or temporary |
21 | | laborers,
the day and temporary labor service
agency shall |
22 | | provide to each day or temporary laborer, at the time of |
23 | | dispatch, a
statement containing the following items on a form |
24 | | approved by the Department: |
25 | | (1) the name of the day or temporary laborer; |
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1 | | (2) the name and nature of the work to be
performed; |
2 | | (3) the
wages
offered; |
3 | | (4) the name and address of the destination of each day |
4 | | or temporary laborer; |
5 | | (5) terms of transportation;
and |
6 | | (6) whether a meal or equipment, or both, are provided, |
7 | | either by the
day and temporary labor service
agency or the |
8 | | third party client, and the cost of the meal and equipment, |
9 | | if any ; |
10 | | (7) for multi-day assignments, the schedule; and |
11 | | (8) the length of the assignment. |
12 | | In the event of a change in the schedule, shift, or |
13 | | location of an assignment for a multi-day assignment of a day |
14 | | or temporary laborer, the day and temporary labor service |
15 | | agency shall provide written notice of such change not less |
16 | | than 48 hours in advance to the day or temporary laborer, where |
17 | | possible. The day and temporary labor service agency shall bear |
18 | | the burden of showing it was not possible to provide such |
19 | | notice where required .
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20 | | If a day or temporary laborer is assigned to the same |
21 | | assignment for more than one day, the day and temporary labor |
22 | | service agency is required to provide the employment notice |
23 | | only on the first day of the assignment and on any day that any |
24 | | of the terms listed on the employment notice are changed.
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25 | | If the day or temporary laborer is not placed with a third |
26 | | party client or otherwise contracted to work for that day, the |
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1 | | day and temporary labor service agency shall, upon request, |
2 | | provide the day and temporary laborer with a confirmation that |
3 | | the day or temporary laborer sought work, signed by an employee |
4 | | of the day and temporary labor service agency, which shall |
5 | | include the name of the agency, the name and address of the day |
6 | | or temporary laborer, and the date and the time that the day or |
7 | | temporary laborer receives the confirmation.
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8 | | (b) No day and temporary labor service agency may send any
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9 | | day or temporary laborer to any place
where a strike, a |
10 | | lockout, or other labor trouble exists.
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11 | | (c) The
Department shall recommend to day and temporary |
12 | | labor service
agencies that those agencies
employ personnel who |
13 | | can effectively
communicate information required in |
14 | | subsections (a) and (b) to day or
temporary laborers in
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15 | | Spanish, Polish, or any other language that is generally |
16 | | understood in the locale of
the day and temporary labor service |
17 | | agency.
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18 | | (Source: P.A. 99-78, eff. 7-20-15.)
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19 | | (820 ILCS 175/12)
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20 | | Sec. 12. Recordkeeping. |
21 | | (a) Whenever a day and temporary labor service agency sends |
22 | | one or more persons to work as day or temporary laborers, the |
23 | | day and temporary labor service agency shall keep the following |
24 | | records relating to that transaction : |
25 | | (1) the name, address and telephone number of each |
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1 | | third party client, including each worksite, to which day |
2 | | or temporary laborers were sent by the agency and the date |
3 | | of the transaction; |
4 | | (2) for each day or temporary laborer: the name and |
5 | | address, the specific location sent to work, the type of |
6 | | work performed, the number of hours worked, the hourly rate |
7 | | of pay and the date sent. The term "hours worked" has the |
8 | | meaning ascribed to that term in 56 Ill. Adm. Code 210.110 |
9 | | and in accordance with all applicable rules or court |
10 | | interpretations under 56 Ill. Adm. Code 210.110. The third |
11 | | party client shall be required to remit all information |
12 | | required under this subsection to the day and temporary |
13 | | labor service agency no later than 7 days following the |
14 | | last day of the work week worked by the day or temporary |
15 | | laborer. Failure of a third party client to remit such |
16 | | information to a day and temporary labor service agency |
17 | | shall not be a defense to the recordkeeping requirement of |
18 | | this Section; |
19 | | (3) the name and title of the individual or individuals |
20 | | at each third party client's place of business responsible |
21 | | for the transaction; |
22 | | (4) any specific qualifications or attributes of a day |
23 | | or temporary laborer, requested by each third party client; |
24 | | (5) copies of all contracts, if any, with the third |
25 | | party client and copies of all invoices for the third party |
26 | | client; |
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1 | | (6) copies of all employment notices provided in |
2 | | accordance with subsection (a) of Section 10; |
3 | | (7) deductions to be made from each day or temporary |
4 | | laborer's compensation made by either the third party |
5 | | client or by the day and temporary labor service agency for |
6 | | the day or temporary laborer's transportation, food, |
7 | | equipment, withheld income tax, withheld social security |
8 | | payments and every other deduction; |
9 | | (8) verification of the actual cost of any equipment or |
10 | | meal charged to a day or temporary laborer; |
11 | | (9) the race and gender of each day or temporary |
12 | | laborer sent by the day and temporary labor service agency, |
13 | | as provided by the day or temporary laborer;
and |
14 | | (10) any additional information required by rules |
15 | | issued by the Department. |
16 | | (b) The day and temporary labor service agency shall |
17 | | maintain all records under this Section for a period of 3 years |
18 | | from their creation. The records shall be open to inspection by |
19 | | the Department during normal business hours. Records described |
20 | | in paragraphs (1), (2), (3), (6), (7), and (8) of subsection |
21 | | (a) shall be available for review or copying by that day or |
22 | | temporary laborer during normal business hours within 5 days |
23 | | following a written request. In addition, a day and temporary |
24 | | labor service agency shall make records related to the number |
25 | | of hours billed to a third party client for that individual day |
26 | | or temporary laborer's hours of work available for review or |
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1 | | copying during normal business hours within 5 days following a |
2 | | written request. The day and temporary labor service agency |
3 | | shall make forms, in duplicate, for such requests available to |
4 | | day or temporary laborers at the dispatch office. The day or |
5 | | temporary laborer shall be given a copy of the request form. It |
6 | | is a violation of this Section to make any false, inaccurate or |
7 | | incomplete entry into any record required by this Section, or |
8 | | to delete required information from any such record. Failure by |
9 | | the third party client to maintain and remit accurate time |
10 | | records to the day and temporary labor service agency as |
11 | | provided in paragraph (a)(2) shall constitute a notice |
12 | | violation by a third party client under Section 95 of this Act |
13 | | unless the third party client has been precluded from |
14 | | submitting such time records for reasons beyond its control. A |
15 | | failure by the third party client to provide time records in |
16 | | accordance with this subsection (b) shall not be a notice |
17 | | violation and shall not be the basis for a suit or other action |
18 | | under Section 95 of this Act against the day and temporary |
19 | | labor service agency.
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20 | | (Source: P.A. 94-511, eff. 1-1-06; 95-499, eff. 8-28-07.)
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21 | | (820 ILCS 175/20)
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22 | | Sec. 20. Transportation. |
23 | | (a) A day and temporary labor service
agency or a third
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24 | | party client or a contractor or agent of either shall charge no |
25 | | fee to transport a
day or temporary
laborer to or from the |
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1 | | designated work site. |
2 | | (b) A day and temporary labor service agency is responsible |
3 | | for the conduct and performance of any person who transports a |
4 | | day or temporary laborer from the agency to a work site, unless |
5 | | the transporter is: (1) a public mass transportation system as |
6 | | defined in Section 2 of the Local Mass Transit District Act; |
7 | | (2) a common carrier; (3) the day or temporary laborer |
8 | | providing his or her own transportation; or (4) selected |
9 | | exclusively by and at the sole choice of the day or temporary |
10 | | laborer for transportation in a vehicle not owned or operated |
11 | | by the day and temporary labor service agency. If any day and |
12 | | temporary labor service agency provides transportation to a day |
13 | | or temporary laborer or refers a day or temporary laborer as |
14 | | provided in subsection (c), the day and temporary labor service |
15 | | agency may not allow a motor vehicle to be used for the |
16 | | transporting of day or temporary laborers if the agency knows |
17 | | or should know that the motor vehicle used for the |
18 | | transportation of day or temporary laborers is unsafe or not |
19 | | equipped as required by this Act or by any rule adopted under |
20 | | this Act, unless the vehicle is: (1) the property of a public |
21 | | mass transportation system as defined in Section 2 of the Local |
22 | | Mass Transit District Act; (2) the property of a common |
23 | | carrier; (3) the day or temporary laborer's personal vehicle; |
24 | | or (4) a vehicle of a day or temporary laborer used to carpool |
25 | | other day or temporary laborers and which is selected |
26 | | exclusively by and at the sole choice of the day or temporary |
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1 | | laborer for transportation. |
2 | | (c) A day and temporary labor service agency may not refer |
3 | | a day or temporary laborer to any person for transportation to |
4 | | a work site unless that person is (1) a public mass |
5 | | transportation system as defined in Section 2 of the Local Mass |
6 | | Transit District Act or (2) providing the transportation at no |
7 | | fee. Directing the day or temporary laborer to accept a |
8 | | specific car pool as a condition of work shall be considered a |
9 | | referral by the day and temporary labor service agency. Any |
10 | | mention or discussion of the cost of a car pool shall be |
11 | | considered a referral by the agency. Informing a day or |
12 | | temporary laborer of the availability of a car pool driven by |
13 | | another day or temporary laborer shall not be considered a |
14 | | referral by the agency. |
15 | | (d) Any
motor vehicle that is owned or operated by the day
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16 | | and temporary labor service agency or a
third party client, or |
17 | | a contractor or agent of either, or to which a day and |
18 | | temporary labor service agency refers a day or temporary |
19 | | laborer, which is used for the
transportation of day or |
20 | | temporary laborers shall have proof of
financial |
21 | | responsibility as
provided for in Chapter 8 of the Illinois |
22 | | Vehicle Code or as required by Department rules. The driver of |
23 | | the vehicle shall hold a valid license to operate motor |
24 | | vehicles in the correct classification and shall be required to |
25 | | produce the license immediately upon demand by the Department, |
26 | | its inspectors or deputies, or any other person authorized to |
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1 | | enforce this Act. The Department shall forward a violation of |
2 | | this subsection to the appropriate law enforcement authorities |
3 | | or regulatory agencies, whichever is applicable.
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4 | | (e) No motor vehicle that is owned or operated by the day |
5 | | and temporary labor service agency or a third party client, or |
6 | | a contractor or agent of either, or to which a day and |
7 | | temporary labor service agency refers a day or temporary |
8 | | laborer, which is used for the transportation of day or |
9 | | temporary laborers may be operated if it does not have a seat |
10 | | and a safety belt for each passenger. The Department shall |
11 | | forward a violation of this subsection to the appropriate law |
12 | | enforcement authorities or regulatory agencies, whichever is |
13 | | applicable.
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14 | | (f) If the day or temporary laborer is provided |
15 | | transportation from the point of application to the worksite by |
16 | | the hiring labor service agency operating pursuant to this Act, |
17 | | the day or temporary laborer shall also be provided |
18 | | transportation back to the point of application, unless the day |
19 | | or temporary laborer advises or agrees prior to leaving for the |
20 | | place of employment to obtain alternative transportation after |
21 | | the work shift is completed. |
22 | | (Source: P.A. 94-511, eff. 1-1-06.)
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23 | | (820 ILCS 175/30)
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24 | | Sec. 30. Wage Payment and Notice.
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25 | | (a) At the time of
payment of wages, a day and temporary
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1 | | labor service agency
shall provide each day or temporary |
2 | | laborer with a detailed
itemized
statement, on the day or |
3 | | temporary laborer's paycheck stub or on a form approved by the |
4 | | Department, listing the following: |
5 | | (1) the name, address, and telephone number of each |
6 | | third party client at which the day or temporary laborer |
7 | | worked. If this information is provided on the day or |
8 | | temporary laborer's paycheck stub, a code for each third |
9 | | party client may be used so long as the required |
10 | | information for each coded third party client is made |
11 | | available to the day or temporary laborer; |
12 | | (2) the number of hours worked by the day or temporary |
13 | | laborer at each third party client each day during the pay |
14 | | period. If the day or temporary laborer is assigned to work |
15 | | at the same work site of the same third party client for |
16 | | multiple days in the same work week, the day and temporary |
17 | | labor service agency may record a summary of hours worked |
18 | | at that third party client's worksite so long as the first |
19 | | and last day of that work week are identified as well. The |
20 | | term "hours worked" has the meaning ascribed to that term |
21 | | in 56 Ill. Adm. Code 210.110 and in accordance with all |
22 | | applicable rules or court interpretations under 56 Ill. |
23 | | Adm. Code 210.110; |
24 | | (3) the rate of payment for each hour worked, including |
25 | | any premium rate or bonus; |
26 | | (4) the total pay period earnings; |
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1 | | (5) all deductions made from the day or temporary |
2 | | laborer's compensation made either by the third party |
3 | | client or by the day and temporary labor service agency, |
4 | | and the purpose for which deductions were made, including |
5 | | for the day or temporary laborer's transportation, food, |
6 | | equipment, withheld income tax, withheld social security |
7 | | payments, and every other deduction; and |
8 | | (5.5) the current maximum amount of a placement fee |
9 | | which the day and temporary labor service agency may charge |
10 | | to a third party client to directly hire the day or |
11 | | temporary laborer pursuant to subsection (a) of Section 40; |
12 | | and |
13 | | (6) any additional information required by rules |
14 | | issued by the Department.
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15 | | (a-1) For each day or temporary laborer who is contracted |
16 | | to work a single day, the third party client shall, at the end |
17 | | of the work day, provide such day or temporary laborer with a |
18 | | Work Verification Form, approved by the Department, which shall |
19 | | contain the date, the day or temporary laborer's name, the work |
20 | | location, and the hours worked on that day. Any third party |
21 | | client who violates this subsection (a-1) may be subject to a |
22 | | civil penalty not to exceed $500 for each violation found by |
23 | | the Department. Such civil penalty may increase to $2,500 for a |
24 | | second or subsequent violation. For purposes of this subsection |
25 | | (a-1), each violation of this subsection (a-1) for each day or |
26 | | temporary laborer and for each day the violation continues |
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1 | | shall constitute a separate and distinct violation.
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2 | | (b) A day and temporary labor service agency shall provide |
3 | | each
worker an annual
earnings summary within a reasonable time |
4 | | after the preceding calendar
year, but in no case later than |
5 | | February 1. A day and temporary
labor service agency shall,
at |
6 | | the time of each wage payment, give notice to day or temporary |
7 | | laborers
of the
availability of the annual earnings summary or |
8 | | post such a notice in a
conspicuous place in the public |
9 | | reception area.
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10 | | (c) At the request of a day or temporary
laborer, a day and |
11 | | temporary labor service agency shall
hold the daily wages of |
12 | | the day or temporary laborer and make
either weekly, bi-weekly, |
13 | | or semi-monthly
payments. The wages shall be paid in a single |
14 | | check, or, at the day or temporary laborer's sole option, by |
15 | | direct deposit or other manner approved by the Department, |
16 | | representing
the wages earned during the period, either weekly, |
17 | | bi-weekly, or semi-monthly,
designated by the day or temporary |
18 | | laborer in accordance with the
Illinois Wage Payment
and |
19 | | Collection Act. Vouchers or any other method of payment which |
20 | | is not generally negotiable shall be prohibited as a method of |
21 | | payment of wages. Day and temporary labor service agencies that
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22 | | make daily wage
payments shall provide written notification to |
23 | | all day or temporary
laborers of the right to
request weekly, |
24 | | bi-weekly, or semi-monthly checks. The day and temporary
labor |
25 | | service agency may
provide this notice by conspicuously posting |
26 | | the notice at the location
where the wages are received by the |
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1 | | day or temporary laborers.
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2 | | (d) No day and temporary labor service agency shall charge |
3 | | any
day or temporary laborer for
cashing a check issued by the |
4 | | agency for wages earned by a
day or temporary laborer who
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5 | | performed work through that agency. No day and temporary labor |
6 | | service agency or third party client shall charge any day or |
7 | | temporary laborer for the expense of conducting any consumer |
8 | | report, as that term is defined in the Fair Credit Reporting |
9 | | Act, 15 U.S.C. 1681a(d), any criminal background check of any |
10 | | kind, or any drug test of any kind.
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11 | | (e) Day or temporary laborers shall be paid no less than |
12 | | the
wage rate stated in the
notice as provided in Section 10 of |
13 | | this Act for all the work performed on
behalf of the third |
14 | | party client in addition to the work listed in the
written |
15 | | description.
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16 | | (f) The total amount deducted for meals, equipment, and |
17 | | transportation may not cause a day or temporary laborer's |
18 | | hourly wage to fall below the State or federal minimum wage. |
19 | | However, a day and temporary labor service agency may deduct |
20 | | the actual market value of reusable equipment provided to the |
21 | | day or temporary laborer by the day and temporary labor service |
22 | | agency which the day or temporary laborer fails to return, if |
23 | | the day or temporary laborer provides a written authorization |
24 | | for such deduction at the time the deduction is made. |
25 | | (g) A day or temporary laborer who is contracted by a day |
26 | | and temporary labor service agency to work at a third party |
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1 | | client's worksite but is not utilized by the third party client |
2 | | shall be paid by the day and temporary labor service agency for |
3 | | a minimum of 4 hours of pay at the agreed upon rate of pay. |
4 | | However, in the event the day and temporary labor service |
5 | | agency contracts the day or temporary laborer to work at |
6 | | another location during the same shift, the day or temporary |
7 | | laborer shall be paid by the day and temporary labor service |
8 | | agency for a minimum of 2 hours of pay at the agreed upon rate |
9 | | of pay.
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10 | | (h) A third party client is required to pay wages and |
11 | | related payroll taxes to a licensed day and temporary labor |
12 | | service agency for services performed by the day or temporary |
13 | | laborer for the third party client according to payment terms |
14 | | outlined on invoices, service agreements, or stated terms |
15 | | provided by the day and temporary labor service agency. A third |
16 | | party client who fails to comply with this subsection (h) is |
17 | | subject to the penalties provided in Section 70 of this Act. |
18 | | The Department shall review a complaint filed by a licensed day |
19 | | and temporary labor agency. The Department shall review the |
20 | | payroll and accounting records of the day and temporary labor |
21 | | service agency and the third party client for the period in |
22 | | which the violation of this Act is alleged to have occurred to |
23 | | determine if wages and payroll taxes have been paid to the |
24 | | agency and that the day or temporary laborer has been paid the |
25 | | wages owed him or her. |
26 | | (Source: P.A. 95-499, eff. 8-28-07; 96-1185, eff. 7-22-10.)
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1 | | (820 ILCS 175/40)
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2 | | Sec. 40. Work Restriction , Placement Reporting, Health and |
3 | | Safety Training, and Equivalent Pay and Benefits . |
4 | | (a) No day and temporary labor service
agency shall
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5 | | restrict the right of a day or temporary laborer to accept a
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6 | | permanent position with a third
party client to whom the day or |
7 | | temporary laborer has been
referred for
work or restrict the |
8 | | right of such third party client to offer such
employment to a |
9 | | day or temporary laborer. A day and temporary labor service |
10 | | agency may charge a placement fee to a third party client for |
11 | | employing a day or temporary laborer for whom a contract for |
12 | | work was effected by the day and temporary labor service agency |
13 | | not to exceed the equivalent of the total daily commission rate |
14 | | the day and temporary labor service agency would have received |
15 | | over a 60-day period, reduced by the equivalent of the daily |
16 | | commission rate the day and temporary labor service agency |
17 | | would have received for each day the day or temporary laborer |
18 | | has performed work for the day and temporary labor service |
19 | | agency in the preceding 12 months. Days worked at a day and |
20 | | temporary labor service agency in the 12 months preceding the |
21 | | effective date of this amendatory Act of the 94th General |
22 | | Assembly
shall be included for purposes of calculating the |
23 | | maximum placement fee described in this Section. However, |
24 | | placement of a day or temporary laborer who is contracted by a |
25 | | day and temporary labor service agency to provide skilled labor |
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1 | | shall not be subject to any placement fee cap. For purposes of |
2 | | this Section, a day or temporary laborer who performs "skilled |
3 | | labor" shall apply only where the day and temporary labor |
4 | | service agency performs an advanced application process, a |
5 | | screening process, which may include processes such as advanced |
6 | | testing, and a job interview. Any day and temporary labor |
7 | | service agency which charges a placement fee to a third party |
8 | | client for employing a day or temporary laborer must include on |
9 | | the Wage Payment and Notice form of each affected day or |
10 | | temporary laborer the maximum amount of a fee that may be |
11 | | charged to a third party client by the day and temporary labor |
12 | | service agency. Failure to provide such information shall |
13 | | constitute a separate notice violation for each day the day and |
14 | | temporary labor service agency fails to provide the required |
15 | | information. No fee provided for under this Section may be |
16 | | assessed or collected by the day and temporary labor service |
17 | | agency when the day or temporary laborer is offered permanent |
18 | | work following the suspension or revocation of the day and |
19 | | temporary labor service agency's registration by the |
20 | | Department.
|
21 | | (b) Each year, at the time of registration with the |
22 | | Department as required by Section 45, each day and temporary |
23 | | labor service agency shall submit to the Department, on a form |
24 | | created by the Department, the number of day or temporary |
25 | | laborers such agency has placed in a permanent position
with a |
26 | | third party client in the preceding 12 months as well as the |
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1 | | percentage such permanent placements represent of the total |
2 | | number of day or temporary laborers contracted by the agency |
3 | | during the same period. Each day a day and temporary labor |
4 | | service agency fails to fully comply with the requirements of |
5 | | this subsection shall constitute a separate notice violation. |
6 | | (c) Any day or temporary laborer assigned to work at a |
7 | | third party client shall not be paid less than the same average |
8 | | rate of pay and equivalent benefits as a permanent employee of |
9 | | the third party client performing the same or substantially |
10 | | similar work on jobs the performance of which requires equal |
11 | | skill, effort, and responsibility, and which are performed |
12 | | under similar working conditions. Each violation of this |
13 | | subsection for each affected day or temporary laborer shall |
14 | | constitute a separate wage and hour violation. |
15 | | (d) Any day and temporary labor service agency and third
|
16 | | party client must comply with all applicable Occupational |
17 | | Safety and Health Administration (OSHA) standards for all day |
18 | | or temporary laborers including, but not limited to, |
19 | | recordkeeping, safety and health training, powered industrial |
20 | | trucks, bloodborne pathogens, hazard communications, personal |
21 | | protective equipment, whistleblower rights, and recordkeeping. |
22 | | Under OSHA, both third party clients and day and temporary |
23 | | service agencies are joint employers of day or temporary |
24 | | laborers, and are both responsible for providing and |
25 | | maintaining a safe work environment for these laborers. To |
26 | | ensure that OSHA standards are met for day or temporary |
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1 | | laborers, third party clients and temporary and day labor |
2 | | service agencies must implement the following actions laid out |
3 | | by OSHA in its Temporary Worker Initiative: |
4 | | (1) The day and temporary labor service agency and the |
5 | | third party client must set out their respective |
6 | | responsibilities for compliance with all relevant OSHA |
7 | | standards in their contract. |
8 | | (2) The tasks the day or temporary laborer is expected |
9 | | to perform, and the safety and health responsibilities of |
10 | | each employer as stated in the day and temporary labor |
11 | | service agency-third party client contract should be |
12 | | communicated to the laborer before the laborer begins work |
13 | | at the job site. |
14 | | (3) Day and temporary labor service agencies have a |
15 | | duty to inquire into the conditions of their laborers' |
16 | | assigned workplaces at third party clients. They must |
17 | | ensure that they are sending laborers to a safe workplaces. |
18 | | (4) Ignorance of hazards is not an excuse. |
19 | | (5) Day and temporary labor service agencies must |
20 | | determine what conditions exist at their third party |
21 | | clients, what hazards may be encountered, and how best to |
22 | | ensure protection for the day or temporary laborers. |
23 | | (6) The day and temporary labor service agency has the |
24 | | duty to inquire and verify that the third party client has |
25 | | fulfilled its responsibilities for a safe workplace. |
26 | | (7) Third party clients must provide day or temporary |
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1 | | laborers with the identical OSHA required safety training, |
2 | | protective equipment and other safeguards that are |
3 | | provided to the third party client's directly hired |
4 | | employees performing similar or the same work. |
5 | | (8) The key is communication between the day and |
6 | | temporary labor service agency and the third party client |
7 | | to ensure that the necessary protections are provided. |
8 | | (9) The day and temporary labor service agencies need |
9 | | not become experts on specific workplace hazards, but must |
10 | | determine what conditions exist at their third party |
11 | | clients, what hazards may be encountered, and how best to |
12 | | ensure protection for the day or temporary laborers. |
13 | | (10) The day and temporary labor service agency has the |
14 | | duty to inquire and verify that the host has fulfilled its |
15 | | responsibilities for a safe workplace. |
16 | | (11) Just as important, third party clients must treat |
17 | | laborers like third party client's directly hired workers |
18 | | in terms of training and safety and health protections. |
19 | | (Source: P.A. 94-511, eff. 1-1-06.)
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20 | | (820 ILCS 175/45)
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21 | | Sec. 45. Registration; Department of Labor. |
22 | | (a) A day and temporary
labor service
agency which is |
23 | | located, operates or transacts business within this State shall |
24 | | register with the Department of Labor in accordance with rules
|
25 | | adopted by the Department for day and temporary labor service
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1 | | agencies and shall be subject to this Act and any rules adopted |
2 | | under this Act. Each day and temporary labor service agency |
3 | | shall provide proof of an employer account number issued by the |
4 | | Department of Employment Security for the payment of |
5 | | unemployment insurance contributions as required under the |
6 | | Unemployment Insurance Act, and proof of valid workers' |
7 | | compensation insurance in effect at the time of registration |
8 | | covering all of its employees. If, at any time, a day and |
9 | | temporary labor service agency's workers' compensation |
10 | | insurance coverage lapses, the agency shall have an affirmative |
11 | | duty to report the lapse of such coverage to the Department and |
12 | | the agency's registration shall be suspended until the agency's |
13 | | workers' compensation insurance is reinstated. The Department |
14 | | may assess each day and temporary labor service agency a |
15 | | non-refundable
registration fee
not exceeding $2,000 $1,000 |
16 | | per year per agency and a non-refundable fee not to exceed $750 |
17 | | $250 for each branch office or other location where the agency |
18 | | regularly contracts with day or temporary laborers for |
19 | | services. The fee may be paid by check or money order
and the |
20 | | Department may not refuse to accept a check on the basis that |
21 | | it is
not a certified check or a cashier's check. The |
22 | | Department may charge an
additional fee to be paid by a day and |
23 | | temporary labor service agency if the agency, or any person on |
24 | | the
agency's behalf, issues or delivers a check to the |
25 | | Department that is not
honored by the financial institution |
26 | | upon which it is drawn. The Department
shall also adopt rules
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1 | | for violation
hearings and penalties for violations of this Act |
2 | | or the Department's rules
in conjunction with the penalties set |
3 | | forth in this Act. |
4 | | (a-5) At the time of registration with the Department each |
5 | | year, a day and temporary labor service agency shall provide |
6 | | the Department with a report containing the information |
7 | | identified in paragraph (9) of subsection (a) of Section 12, |
8 | | broken down by branch office, in the aggregate for all day or |
9 | | temporary laborers assigned within Illinois in the prior year |
10 | | to be submitted on a form created by the Department. |
11 | | (b) It is a violation of this Act to operate a day and |
12 | | temporary labor service agency without first registering with |
13 | | the Department in accordance with subsection (a) of this |
14 | | Section. The Department shall create and maintain at regular |
15 | | intervals on its website, accessible to the public: (1) a list |
16 | | of all registered day and temporary labor service agencies in |
17 | | the State whose registration is in good standing; (2) a list of |
18 | | day and temporary labor service agencies in the State whose |
19 | | registration has been suspended, including the reason for the |
20 | | suspension, the date the suspension was initiated, and the |
21 | | date, if known, the suspension is to be lifted; and (3) a list |
22 | | of day and temporary labor service agencies in the State whose |
23 | | registration has been revoked, including the reason for the |
24 | | revocation and the date the registration was revoked. The |
25 | | Department has the authority to assess a penalty against any |
26 | | day and temporary labor service agency that fails to register |
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1 | | with the Department of Labor in accordance with this Act or any |
2 | | rules adopted under this Act of $500 for each violation. Each |
3 | | day during which a day and temporary labor service agency |
4 | | operates without registering with the Department shall be a |
5 | | separate and distinct violation of this Act. |
6 | | (b-5) No day and temporary labor service agency may |
7 | | register without obtaining a surety bond issued by a surety |
8 | | company admitted to do business in this State. The principal |
9 | | sum of the bond shall not be less than $150,000. A copy of the |
10 | | bond shall be filed with the Department. |
11 | | The bond required by this Section shall be in favor of, and |
12 | | payable to, the people of the State of Illinois, and shall be |
13 | | for the benefit of any employee damaged by his or her |
14 | | employer's failure
to pay wages, interest on wages, or fringe |
15 | | benefits, or damaged by violation of this Section. |
16 | | Thirty days prior to the cancellation or termination of
any
|
17 | | surety bond required by this Section, the surety shall send |
18 | | written notice to both the employer and the Department |
19 | | identifying the bond and the date of the cancellation or |
20 | | termination. |
21 | | An employer shall not conduct any business until the |
22 | | employer
obtains a new surety bond and files a copy of it with |
23 | | the Department. |
24 | | This subsection does not apply to an employer covered by a |
25 | | valid collective bargaining agreement, if the agreement |
26 | | expressly provides for all of the following: |
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1 | | (i) Wages. |
2 | | (ii) Hours of work. |
3 | | (iii) Working conditions. |
4 | | (iv) An expeditious process to resolve disputes |
5 | | concerning nonpayment of wages. |
6 | | (v) The employer has documented that a current workers' |
7 | | compensation insurance policy is in effect for the |
8 | | employees. |
9 | | (vi) The employer is otherwise in compliance with all |
10 | | provisions of this Section. |
11 | | (b-6) The principal executive officer of a day and |
12 | | temporary labor service agency shall certify under oath at the |
13 | | time of registration of the day and temporary labor service |
14 | | agency each year on a form created by the Department that: |
15 | | (1) the signing officer has reviewed the registration |
16 | | form of the day and temporary labor service agency and |
17 | | confirmed the information is true and accurate to the best |
18 | | of his or her knowledge; |
19 | | (2) the signing officer has reviewed the recordkeeping |
20 | | practices of the day and temporary labor service agency and |
21 | | confirmed that the recordkeeping practices comply with the |
22 | | requirements of Section 12 to the best of his or her |
23 | | knowledge; |
24 | | (3) the signing officer has reviewed the day and |
25 | | temporary labor service agency's filing as required by |
26 | | subsection (b) of Section 40 related to
the placement of |
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1 | | day or temporary laborers in permanent positions with third |
2 | | party clients and has confirmed that such practices comply |
3 | | with the requirements of Section 20 to the best of his or |
4 | | her knowledge; |
5 | | (4) the signing officer has reviewed the day and |
6 | | temporary labor service agency's practices related to the |
7 | | transportation of day or temporary laborers and has |
8 | | confirmed that such practices comply with the requirements |
9 | | of Section 20 to the best of his or her knowledge; |
10 | | (5) the signing officer has reviewed and is responsible |
11 | | for the surety bond posted by the agency and its renewals; |
12 | | and |
13 | | (6) the signing officer: |
14 | | (A) is responsible for establishing and |
15 | | maintaining internal controls to comply with the |
16 | | recordkeeping requirements; and |
17 | | (B) has evaluated the effectiveness of the |
18 | | internal controls. |
19 | | (c) An applicant is not eligible to register to operate a |
20 | | day and temporary labor service agency under this Act if the |
21 | | applicant or any of its officers, directors, partners, or |
22 | | managers or any owner of 25% or greater beneficial interest: |
23 | | (1) has been involved, as owner, officer, director, |
24 | | partner, or manager, of any day and temporary labor service |
25 | | agency whose registration has been revoked or has been |
26 | | suspended without being reinstated within the 5 years |
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1 | | immediately preceding the filing of the application; or |
2 | | (2) is under the age of 18. |
3 | | (d) Every agency shall post and keep posted at each |
4 | | location, in a position easily accessible to all employees, |
5 | | notices as supplied and required by the Department containing a |
6 | | copy or summary of the provisions of the Act and
a notice which |
7 | | informs
the public of a toll-free telephone number for day or |
8 | | temporary laborers
and the public to
file wage dispute |
9 | | complaints and other alleged violations by
day and temporary |
10 | | labor service
agencies. Such notices shall be in English or any |
11 | | other language generally understood in the locale of the day |
12 | | and temporary labor service agency.
|
13 | | (e) No day and temporary labor service agency shall be |
14 | | permitted to register to operate in Illinois until it has |
15 | | complied with the requirements of this Section. |
16 | | (Source: P.A. 94-511, eff. 1-1-06.)
|
17 | | (820 ILCS 175/85)
|
18 | | Sec. 85. Third party clients. |
19 | | (a) It is a violation of this Act for a third party client |
20 | | to enter into a contract for the employment of
day or temporary |
21 | | laborers with any day and temporary labor service agency
not |
22 | | registered under Section 45 of this Act.
A third party client |
23 | | has a duty to verify a day and temporary labor service agency's |
24 | | status with the Department before entering into a contract with |
25 | | such an agency, and on March 1 and September 1 of each year. A |
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1 | | day and temporary labor service agency shall be required to |
2 | | provide each of its third party clients with proof of valid |
3 | | registration issued by the Department at the time of entering |
4 | | into a contract. A day and temporary labor service agency shall |
5 | | be required to notify, both by telephone and in writing, each |
6 | | day or temporary laborer it employs and each third party client |
7 | | with whom it has a contract within 24 hours of any denial, |
8 | | suspension, or revocation of its registration by the |
9 | | Department. All contracts between any day and temporary labor |
10 | | service agency and any third party client shall be considered |
11 | | null and void from the date any such denial, suspension, or |
12 | | revocation of registration becomes effective and until such |
13 | | time as the day and temporary labor service agency becomes |
14 | | registered and considered in good standing by the Department as |
15 | | provided in Section 50 and Section 55. Upon request, the |
16 | | Department shall provide to a third party client a list
of |
17 | | entities registered as day and temporary labor service |
18 | | agencies. The
Department shall
provide on the Internet a list |
19 | | of entities registered as day and temporary
labor service |
20 | | agencies. A third party client may rely on information provided |
21 | | by the Department or maintained on the Department's website |
22 | | pursuant to Section 45 of this Act and shall be held harmless |
23 | | if such information maintained or provided by the Department |
24 | | was inaccurate. Any third party client that violates this |
25 | | provision of the Act is subject to a civil penalty not to |
26 | | exceed $500. Each day during which a third party client |
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1 | | contracts with a day and temporary labor service agency not |
2 | | registered under Section 45 of this Act shall constitute a |
3 | | separate and distinct offense.
|
4 | | (b) If a third party client leases or contracts with a day |
5 | | and temporary service agency for the services of a day or |
6 | | temporary laborer, the third party client shall share all legal |
7 | | responsibility and liability for : (i) the payment of wages |
8 | | under the Illinois Wage Payment and Collection Act and the |
9 | | Minimum Wage Law and (ii) any obligation to pay the 4 hours' |
10 | | minimum pay as required in subsection (g) of Section 30 or |
11 | | obligation to pay statutory damages as provided in Section 95 . |
12 | | (Source: P.A. 93-441, eff. 1-1-04; 94-511, eff. 1-1-06.)
|
13 | | (820 ILCS 175/90)
|
14 | | Sec. 90. Retaliation. |
15 | | (a) Prohibition. It is a violation of this Act for a day |
16 | | and temporary labor service agency or third party client, or |
17 | | any agent of a day and temporary labor service agency or third |
18 | | party client, to retaliate through discharge or in any other |
19 | | manner against any day or temporary laborer for exercising any |
20 | | rights granted under this Act. The termination or disciplinary |
21 | | action by a day and temporary labor service agency against a |
22 | | day or temporary laborer within 90 days of the person's |
23 | | exercise of rights protected under this Act shall raise a |
24 | | rebuttable presumption of having done so in retaliation for the |
25 | | exercise of those rights. Such retaliation shall subject a day |
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1 | | and temporary labor service agency or third party client, or |
2 | | both, to civil penalties pursuant to this Act or a private |
3 | | cause of action. |
4 | | (b) Protected Acts from Retaliation. It is a violation of |
5 | | this Act for a day and temporary labor service agency or third |
6 | | party client to retaliate against a day or temporary laborer |
7 | | for: |
8 | | (1) making a complaint to a day and temporary labor |
9 | | service agency, to a third party client, to a co-worker, to |
10 | | a community organization, before a public hearing, or to a |
11 | | State or federal agency that rights guaranteed under this |
12 | | Act have been violated; |
13 | | (2) causing to be instituted any proceeding under or |
14 | | related to this Act; or |
15 | | (3) testifying or preparing to testify in an |
16 | | investigation or proceeding under this Act.
|
17 | | (Source: P.A. 94-511, eff. 1-1-06.)
|
18 | | (820 ILCS 175/95)
|
19 | | Sec. 95. Private Right of Action. |
20 | | (a) A person aggrieved by a violation of this Act or any |
21 | | rule adopted under this Act by a day and temporary labor |
22 | | service agency or a third party client may file suit in circuit |
23 | | court of Illinois, in the county where the alleged offense |
24 | | occurred or where any day or temporary laborer who is party to |
25 | | the action resides, without regard to exhaustion of any |
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1 | | alternative administrative remedies provided in this Act. A day |
2 | | and temporary labor service agency aggrieved by a violation of |
3 | | this Act or any rule adopted under this Act by a third party |
4 | | client may file suit in circuit court of Illinois, in the |
5 | | county where the alleged offense occurred or where the day and |
6 | | temporary labor service agency which is party to the action is |
7 | | located. Actions may be brought by one or more day or temporary |
8 | | laborers for and on behalf of themselves and other day or |
9 | | temporary laborers similarly situated. A day or temporary |
10 | | laborer whose rights have been violated under this Act by a day |
11 | | and temporary labor service agency or a third party client or a |
12 | | day and temporary labor service agency whose rights have been |
13 | | violated under this Act by a third party client is entitled to |
14 | | collect: |
15 | | (1) in the case of a wage and hour violation, the |
16 | | amount of any wages, salary, employment benefits, or other |
17 | | compensation denied or lost to the day or temporary laborer |
18 | | or day and temporary labor service agency by reason of the |
19 | | violation, plus an equal amount in liquidated damages; |
20 | | (2) in the case of a health and safety or notice |
21 | | violation, compensatory damages and an amount between $50 |
22 | | and up to $500 for each the violation of each subpart of |
23 | | each Section; |
24 | | (3) in the case of any violation of subsection (a) of |
25 | | Section 40 relating to any unlawful restrictions by a day |
26 | | and temporary labor service agency on the right of a day or |
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1 | | temporary laborer to accept a permanent position with a |
2 | | third party client or the right of a third party client to |
3 | | offer such employment to a day or temporary laborer, $50 |
4 | | for each day or temporary laborer affected by the day and |
5 | | temporary labor service agency's policy, practice, or |
6 | | agreement and for each day such policy, practice, or |
7 | | agreement is in effect, plus actual damages; |
8 | | (4) (3) in the case of unlawful retaliation, the |
9 | | greater of all legal or equitable relief as may be |
10 | | appropriate or $10,000, at the selection of the aggrieved |
11 | | day or temporary laborer ; and |
12 | | (5) (4) attorney's fees and costs. |
13 | | (b) The right of an aggrieved person to bring an action |
14 | | under this Section terminates upon the passing of 3 years from |
15 | | the final date of employment by the day and temporary labor |
16 | | agency or the third party client or upon the passing of 3 years |
17 | | from the date of termination of the contract between the day |
18 | | and temporary labor service agency and the third party client. |
19 | | This limitations period is tolled if a day labor employer has |
20 | | deterred a day and temporary labor service agency or day or |
21 | | temporary laborer's exercise of rights under this Act by |
22 | | contacting or threatening to contact law enforcement agencies.
|
23 | | (Source: P.A. 96-1185, eff. 7-22-10.)".
|