As forecasted in our recent blog Illinois Employer Midsummer “Roundup”: Eight to Know and Two to Watch, our two bills “to watch” are now law. On August 4, Governor Pritzker signed HB 2862 into law, effective immediately, imposing new obligations on employers who use temporary employees, including providing information on their regular employees’ compensation to staffing companies and documenting and keeping records of training provided to the staffing company employee.
And on August 11, Governor Pritzker signed HB 3129 into law, meaning Illinois employers with 15 or more employees have to include the “pay scale and benefits” in any job posting starting January 1, 2025.
We highlight a few key points of each new law below, and for more details, check out our Illinois Midsummer “Roundup” blog.
HB 2862: Employers who use temporary employees have new obligations under amendments to the Illinois Day and Temporary Labor Services Act–effective immediately
- Employers using temporary employees are obligated to provide their regular employees’ information to staffing company
Effective immediately, employers who use temporary employees are required to provide the staffing company with information regarding their regular employees’ job duties, pay, and benefits upon request to allow the staffing company to comply with new equal pay and equal benefits obligations. Those obligations require the staffing company to pay temporary workers who are assigned to a client for more than 90 calendar days the same wages and benefits the client provides to its lowest paid comparable employee.
On August 7, 2023, the Illinois Department of Labor (IDOL) issued emergency rules clarifying the new law’s ambiguity regarding this 90-day threshold. Under the regulations, the 90-day period began to run on August 4, 2023 (the effective date of the law), so the earliest date on which temporary employees can reach the 90-day threshold is November 2, 2023. The rules also provide that the 90-calendar day threshold is determined by aggregating the number of days worked by a temporary employee in “any 12-month period, whether consecutively or intermittently.” Therefore, staffing companies will need to closely monitor employee assignments to ensure they do not run afoul of the Act. (IDOL also issued proposed permanent rules on August 7, 2023 to eventually replace the emergency rules. The minimum public comment period for the proposed rules runs through October 2, 2023.)
- Employers have to meet new health and safety-related requirements
Before a staffing company employee starts to work at a client’s worksite, the client must:
- Document and inform the staffing company employee of any anticipated job hazards to be encountered
- Review the safety and health awareness training the staffing company employee received from the staffing company to determine whether such training addresses the recognized hazards for the industry
- Provide specific training in the particular hazards of the worksite; and
- Document and maintain records of worksite-specific training and confirm to the staffing company within three business days of the training that such training was completed. (And if the client requires a staffing company employee to switch roles, updated safety training must be given to address any specific hazards of the new role.)
The client must also allow the staffing company to visit the worksite to confirm the training and information provided to staffing company employees.
Penalties for violations of the new law range from $100 to $18,000 for a first violation, and $250 to $7,500 for each repeat violation. The law also allows the Illinois Attorney General to request that a circuit court suspend or revoke a temporary agency’s registration for any violations of the new law.
HB 3129: “Pay scale and benefits” required in job postings starting January 1, 2025
- Illinois employers with 15 or more employees must include “pay scale and benefits” in job postings–and the requirement applies to positions in Illinois or reporting to Illinois
As explained, Illinois employers with 15 or more employees will have to disclose “pay scale and benefits” (more on the definition below) in any job posting starting January 1, 2025. The disclosure requirement applies to positions that will be physically performed (at least in part) in Illinois, as well as those that will be physically performed outside of Illinois where the employee reports to a supervisor, office or other work site in Illinois. So US employers with remote or hybrid employees who work outside of Illinois but report to a supervisor or office in the state need to pay close attention.
- “Pay scale and benefits” broadly defined
The definition of “pay scale and benefits” is broad, continuing the trend we’ve seen in other states requiring inclusion of stock-based compensation, but without any clear guidance as to what to disclose in this regard. “Pay scale and benefits” are defined in the law as the “wage or salary, or the wage or salary range, and a general description of the benefits and other compensation, including, but not limited to, bonuses, stock options, or other incentives the employer reasonably expects in good faith to offer for the position, set by reference to any applicable pay scale, the previously determined range for the position, the actual range of others currently holding equivalent positions, or the budgeted amount for the position, as applicable.”
- Hyperlinking can satisfy the disclosure requirement
Employers can satisfy the disclosure requirement by hyperlinking to a publicly viewable webpage that includes this information. In addition, posting a relevant and up-to-date general benefits description in an easily accessible, central, and public location on an employer’s website and referring to the website posting in the job posting satisfies the benefits posting requirement.
- Job postings are not required
HB 3129 specifies that it does not require an employer to make a job posting. However, if a public or internal posting for a job, promotion, transfer or other employment opportunity has not been made available to the applicant, an employer (or employment agency) must disclose the position’s pay scale and benefits to an applicant prior to any offer or discussion of compensation, and at the applicant’s request.
- Recordkeeping required for five years
The new law requires employers to maintain pay scale and benefits records for each position, as well as the job posting for each position, for at least five years (along with the already-required recordkeeping under the Act that requires employers to preserve the name, address, occupation and wages paid to employees).
- Penalties and enforcement
Any person who claims to be aggrieved by a violation of HB 3129 can file a complaint with the Illinois Department of Labor within one year of the date of the alleged violation. IDOL has authority to investigate and if a violation is found, the agency will issue a notice to the employer that includes the applicable penalty and a period to cure the violation. A job posting violation will be considered as one violation regardless of the number of duplicative postings listing the job opening.
Penalties vary depending on whether violating postings are active or “not active” when IDOL issues the notice of violation, as well as the number of prior violations. For active postings, cure periods and fines range from a 14-days cure period and up to $500 for the first offense, to no cure period and a fine not to exceed $10,000 for third and subsequent offenses. For postings that are “not active,” fines range from up to $250 for the first offense to up to $10,000 for third and subsequent offenses. (For specific details on penalties and fines, see our previous blog).
For both active and “not active” postings, the first offense may be a single violating job posting or multiple violating job postings that the IDOL identifies at the same time, while second and third offenses are single job postings. IDOL has discretion to determine the amount of fines, as well as to waive civil penalties.
For more details on HB 3129 and HB 2862, see our prior blog, and for assistance navigating these new laws, contact your Baker McKenzie employment attorney.