I.          Introduction

The Illinois General Assembly has imposed several new mandates on employers during this past legislative session.  Along with a new Family Military Leave Act (P.A. 94-0589), Springfield has also provided amendments substantially rewriting and expanding upon the Day and Temporary Labor Services Act (820 ILCS 175/1, et seq) and adding specific protections for hotel workers to the One Day Rest in Seven Act (820 ILCS 140/3.1). The amendments to the Day and Temporary Labor Services Act are not effective until January 1, 2006, but the new Family Military Leave Act and the One Day Rest in Seven amendments immediately became law effective with the Governor’s signature.  Enforcement of the later act, however, has already been stayed by action of the Circuit Court in Cook County.

II.         Illinois Family Military Leave Act

The new Family Military Leave Act provides guaranteed unpaid leave for the employees of qualifying employers, with a protected right of return and protection of employment benefits during the leave. The Act’s broad reach and certain ambiguities of the statute may cause employers pause.  Every qualifying employer with fifteen or more employees should carefully review its leave procedures to insure compliance, as the Act carries with it a private right of action for employees to seek enforcement for alleged violations.

A.         Coverage

The Act is very broad in its definition of covered employees, specifically including independent contractors, and appearing broad enough to encompass temporary workers placed in a company by an agency.   The definition of employees “includes” employees having at least twelve months tenure and not less than 1,250 work hours prior to seeking leave, but, as drafted, the tenure requirement is not specifically stated as a qualifying condition. 

Employer is defined to mean any person, partnership, corporation, association or other business entity and all units of state and local government.  Only employers with 15 or more employees are required to extend leave: employers with 15-50 employees are required to allow 15-days leave, those with more than 50 employees are required to allow 30-days leave. 

The leave entitlement is extended to the spouse and parents of a person “called to military service lasting longer than 30 days with the State or United States pursuant to the orders of the Governor or the President of the United States.”  The leave is allowed “during the time federal or State deployment orders are in effect…”  While these provisions clearly apply to National Guard and inactive reserve members, it appears they also extend to the families of active reserve members who are called to active duty, either individually or as part of unit activation.  The provision clearly does not apply to duty of less than 30 days or to normal weekend or summer drill periods. 

The phrase “deployment orders” is not defined in the statue: it is not clear if the phrase is intended to have a specific meaning as a military term of art or is simply the legislature’s choice of words.    Lt. Governor Pat Quinn, who strongly supported the Act, commented that:  "My office heard from family members of numerous citizen soldiers called to active duty who had quit their jobs or were fired simply because they wanted to spend time with their loved ones before shipping out." BNA Daily Labor Report, Aug.16, 2005.  The language, however, is a potentially troubling issue and may be fairly interpreted to extend to any time during the military member’s active service and not just during the shipping out phase.

B.         Leave Allowed

The leave allowed is unpaid, but return to work and employment benefits are both protected.  If the protected leave is more than five consecutive days, fourteen days notice to the employer is required, along with consultation with the employer to schedule the leave “so as to not unduly disrupt the operations of the employer.”  If the leave is less than five consecutive days, the employee is only required to give such “advance notice as is practicable.”  The employer is allowed to require appropriate certification from the military of the employee’s eligibility for leave.

The statute also provides that family military leave shall not be taken unless the employee has “exhausted all accrued vacation leave, personal leave, compensatory leave…” and any other leave available other than sick or disability leave.  Interesting questions may arise where the employee has vacation or similar leave available, but the employer’s policies preclude taking it at the desired time or without prior arrangements.  Presumably, the statute would be interpreted to allow leave under those circumstances, but this provision is potentially at odds with section 20(d) of the Act, which states that nothing in the Act is to “diminish the contract rights or seniority status of any other employee.”  Conflicts between scheduled vacations, protected leave and staffing requirements will require delicate balancing, but employees taking less than five consecutive days leave appear to be holding a trump card on both employers and co-employees. 

C.        Protections Afforded

On return from family military leave, an employee “shall be restored by the employer to the position held by the employee when the leave commenced or to a position with equivalent seniority status, employee benefits, pay and other terms and conditions of employment.”  Protected terms and conditions are not enumerated, but presumably would include shift, location and comparable responsibilities.  Failure to return is allowed where the employer proves that action was “because of conditions unrelated to the employee’s exercise of rights under this Act.”

The Act further provides that employers are to “make it possible for employees to continue their benefits at the employee’s expense...” but goes on to say that the employer and employee may negotiate employer payment of benefit costs for the leave period.  Negotiation of such advantage is not mandatory and it is not specified how such negotiation is to proceed, particularly in unionized work places.  The Act does provide that it shall not be the basis for diminishing any rights conferred by either a collective bargaining agreement or an employee benefit plan, but also provides that the statutory rights cannot be diminished by such an agreement or plan.

D.        Prohibited Acts & Enforcement

Employers are prohibited from interfering with, restraining or denying the exercise of any rights under the Act, and from discharging, fining, suspending, expelling, disciplining or in any other way discriminating against employees who exercise rights or those opposing any practice made unlawful by the Act.

The only enforcement mechanism provided is a civil action by affected employees for injunctive and equitable relief.  In addition to enjoining actual or potential violations, the court is authorized to grant any equitable relief “that is necessary and appropriate to redress the violation or to enforce this Act.”  No provision for is made for damages, nor is there a specific provision of attorney’s fees. Also lacking is any mechanism for enforcement by the Department of Labor.   The Act lacks a generalized statement of purpose or public policy and, for that reason, may be of questionable use in attempting to plead a common law retaliatory discharge action.

III.       Day and Temporary Labor Services Act

The Day and Temporary Labor Services Act, first enacted in 2000, has been substantially revised and expanded to now include specific private rights of action and provisions prohibiting retaliation. Potential penalties under Department of Labor enforcement are widely increased.  Billed by Gov. Blagojevich as making Illinois the most aggressive state in protecting day laborer rights, the statute imposes substantial new burdens on day labor agencies and their clients.

A.        The definitions provisions are largely unchanged. Day labor means:

labor or employment that is occasional or irregular at which a person is employed for not longer than the time period required to complete the assignment for which the person was hired and where wage payments are made directly or indirectly by the day and temporary labor service agency or the third party client employer for work undertaken by day or temporary laborers pursuant to a contract between the day and temporary labor service agency with the third party client.
(820 ILCS 175/5).

Clerical and professional workers are specifically excluded, but manufacturing and industrial, seasonal and agricultural workers and other temporary manual labor positions are included.

B.         Notice provisions are expanded. (820 ILCS 175/10).  Where notice of assignments were previously required only on employee request, the new Act requires such notice at the time of dispatch to include name of the worker, name and address of their destination, the client to which they are assigned, nature of the work, and the terms for transportation and meals.  A new notice of non-placement is to be given at the laborer’s request when the day laborer is available for work but not assigned.

C.        New recordkeeping provisions (820 ILCS 175/12) include requirements that the agency keep for THREE (3) years the name, address and phone number of each client to which laborers are assigned, the client’s responsible agent, the location, type of work, hours and pay rate for each laborer, the client’s qualification criteria, copies of all contracts and notices between the agency and client, specific wage deduction information, verification of the cost of equipment or meals charged to the laborer, race and gender of each assigned laborer.   Such records are to be available for Department of Labor inspection and laborer specific information shall be reviewable by the laborer.  The agency is required to make forms requesting such information available to laborers at the agency office.

D.        Day labor agencies are now forbidden from charging for transportation from their offices to the client’s work site and strict limitations are placed on referring workers for transportation.   (820 ILCS 175/20). Agencies are responsible for any third party provider of transportation other than legitimate public transportation or worker selected transportation.  Transportation is to be provided in safe, insured and properly equipped vehicles.   Agencies and clients are now also prohibited from charging day laborers for meals not actually eaten. (820 ILCS 175/15).

E.         Specifically itemized pay statements are now required (820 ILCS 175/30), clearly stating the client for whom work was performed, hours, pay rates, total earnings and all deductions.  Where the work is for a single day, a detailed Work Verification Form must be provided at the end of that day, stating the date, the worker’s name, the work location and the hours worked.  Civil penalties of $500 for first violations and up to $2,500 for subsequent violations can be imposed, with each laborer, for each day, constituting a separate violation.    Vouchers and other non-negotiable forms of payment are prohibited.   The aggregate deduction for meals, equipment and transportation shall not reduce the net hourly wage below minimum wage guidelines, although deductions for non-returned reusable equipment are allowed.

F.         Laborers assigned to a third party client, but not actually utilized, are entitled to a minimum of FOUR (4) hours of what amounts to ‘show up’ pay. (820 ILCS 175/30(g)).

G.        Strict limitations are placed on referral fees agencies can charge where the laborer is permanently hired by the client. (820 ILCS 175/40). Unless the position qualifies as skilled labor, the maximum commission is the amount the laborer would have earned the agency over 60 days, less what was actually received in commission for that laborer over the preceding 12 months. Skilled labor is defined as involving an advanced application, screening and an interview. 

H.        Registration continues to be required, but the provisions are toughened. (820 ILCS 175/45).   Registration requires proof of an account with the Department of Employment Security and proof of workers’ compensation insurance covering all employees.   Fees are increased to $1000 for each agency and $250 for each additional branch office.   Operating without valid registration is prohibited and penalties up to $500 per day are authorized.    Notices regarding the Act’s provisions are to be posted at each agency location, in English or any other language generally understood in the community.    Third party clients now have an obligation to confirm the agency’s valid registration, before entering an agreement and at least twice annually thereafter, or face penalties of up to $500 per day.    Third party clients also now share legal responsibility for the agency’s compliance with minimum wage and wage payment laws. (820 ILCS 175/85).

I.          Probably the most significant amendments are the addition of a new private right of action and specific retaliation provisions.  The broad retaliation provision (820 ILCS 175/90) protects workers from retaliation by the agency, third party client or either of their agents, by discharge or other retaliation for protected acts, including complaints to the agency, the client, a co-worker, a community organization or in any public or governmental hearing, that rights under the act have been violated; causing a proceeding under the Act to be instituted; and, testifying or preparing to testify in such a proceeding.  Community organization for purposes of this provision is not defined.  

The statute also creates a private right of action for persons “aggrieved by a violation of this Act or any rule adopted under this Act...” by either an agency or a third party client (820 ILCS 175/95). Suit may be filed where the offenses occurred or where any laborer who is party to the action resides, without regard to exhaustion of administrative remedies. Actions may be brought individually or on behalf of other laborers similarly situated.   Recoverable damages for a wage and hour violation are the actual amount of lost wages, plus an additional equal amount.  Health, safety or notice provisions carry penalties of $500 per violation.  Retaliation, however, can result in “all legal or equitable relief as may be appropriate.”   Each type of action includes a provision for payment of the plaintiff’s attorney’s fees.

A somewhat unusual limitations period is included: three years from the date of the laborer’s final employment by the agency or third party client.  That limitations period is tolled if the agency or client has deterred the action by contacting or threatening to contact a law enforcement agency, presumably a reference to immigration authorities.

Although the retaliation provisions may appear to extend liability for retaliation to managers and supervisors with agent language, the private right of action provisions omit such reference and refer only to claims against agencies or third party clients.

IV.       One Day Rest In Seven Act

Hotel workers in Cook County are given new rights under the One Day Rest In Seven Act (820 ILCS 140/3.1).   Whether that legislation passes constitutional muster is currently open to debate.  On a challenge by the Illinois Hotel and Lodging Association, Judge Patrick McGann of the Cook County Circuit Court stayed enforcement of the amendments on August 18, 2005. The association challenged the new law both on federal preemption and special legislation grounds.  The matter is, at the time of this writing, proceeding toward trial with a briefing schedule set and further case management conference scheduled for early January, 2006.

The legislation, applicable only in Cook County, extents only to hotel attendants, those who clean or put in order guest rooms in a hotel or other similar establishment. The amendments create two new entitlements.  Each attendant who works at least seven (7) hours is to receive TWO (2) paid 15 minute breaks per shift, plus an unpaid 30 minute meal break.  A break room providing chairs, tables, a comfortable environment and clean drinking water is to be provided.   Records of each attendant’s break periods are required.  Employers who fail to provide required breaks are liable to the attendant for three times the attendant’s regular hourly rate of pay for each day of violation.

Additionally, it is made unlawful for the employer or its agent or representative to take action against any person in retaliation for exercise of the newly created rights.  An interesting new burden of proof, similar to the familiar McDonnell Douglas burden shifting approach, is created specifically for this statute:

In any civil proceeding brought under this subsection (f), if the plaintiff establishes that he or she was employed by the defendant, exercised rights under this Section, or alleged in good faith that the defendant was not complying with this Section, and was thereafter terminated, demoted, or otherwise penalized by the defendant, then a rebuttable presumption shall arise that the defendant's action was taken in retaliation for the exercise of rights established by this Section. To rebut the presumption, the defendant must prove that the sole reason for the termination, demotion, or penalty was a legitimate business reason.

The provision omits temporal limitations, apparently immunizing for life any employee who makes such a complaint.  Even a mixed motive conclusion would result in employee victory.  The damages provisions award prevailing plaintiffs:

All remedies available under law or in equity, including but not limited to damages, back pay, reinstatement, or injunctive relief. Any person terminated in violation of this Section shall recover treble his or her lost normal daily compensation and fringe benefits, together with interest thereon, and any consequential damages suffered by the employee. The court shall award reasonable attorney's fees and costs to a prevailing plaintiff in an enforcement action under this Section.

For covered employers, either a failure to abide by the new requirements or retaliation may be costly, if the amendments survive the association’s challenge.

V.        Conclusion

The General Assembly has continued its run of creating new mandates upon employers and expanding employee rights and privileges.  These three enactments will affect employers to varying degrees, but are must know for employment attorneys.  While the day labor provisions are not effective until the first of the year, both of the remaining statutes are effective immediately and require an affected employer’s attention. Cook County  practitioners, in particular, should monitor the status of the litigation before Judge McGann on the hotel worker amendments to the One Day Rest In Seven Act.   Litigation clarifying some of the ambiguous or conflicting provisions of these statutes, or taking advantage of the newly created private rights of action, will most likely follow.

Michael Gifford is a member of the Labor & Employment Group at Howard & Howard. He  represents employers in a wide variety of labor and employment matters. For more information, please  contact Michael Gifford at (309) 672-1483 or email   mdg@h2law.com.

Copyright 2005 Howard & Howard Attorneys, P.C. This publication is intended to provide information only and does not constitute legal advice.