Full Text of SB3571 96th General Assembly
SB3571 96TH GENERAL ASSEMBLY
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96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 SB3571
Introduced 2/10/2010, by Sen. Gary Forby SYNOPSIS AS INTRODUCED: |
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820 ILCS 185/5 |
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820 ILCS 185/10 |
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Amends the Employee Classification Act. Provides that the term "employment" does not include services performed by an individual as an operator of a truck, truck-tractor, or tractor if certain specified conditions are met. Provides that an individual performing services for a contractor is deemed to be an employee of the employer, unless the contractor is a truck owner-operator as defined in the Act. Effective January 1, 2011.
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A BILL FOR
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SB3571 |
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LRB096 18266 WGH 33641 b |
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| AN ACT concerning employment.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Employee Classification Act is amended by | 5 |
| changing Sections 5 and 10 as follows: | 6 |
| (820 ILCS 185/5)
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| Sec. 5. Definitions. As used in this Act: | 8 |
| "Construction" means any constructing, altering, | 9 |
| reconstructing, repairing, rehabilitating, refinishing, | 10 |
| refurbishing, remodeling, remediating, renovating, custom | 11 |
| fabricating, maintenance, landscaping, improving, wrecking, | 12 |
| painting, decorating, demolishing, and adding to or | 13 |
| subtracting from any building, structure, highway, roadway, | 14 |
| street, bridge, alley, sewer, ditch, sewage disposal plant, | 15 |
| water works, parking facility, railroad, excavation or other | 16 |
| structure, project, development, real property or improvement, | 17 |
| or to do any part thereof, whether or not the performance of | 18 |
| the work herein described involves the addition to, or | 19 |
| fabrication into, any structure, project, development, real | 20 |
| property or improvement herein described of any material or | 21 |
| article of merchandise. Construction shall also include moving | 22 |
| construction related materials on the job site to or from the | 23 |
| job site.
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| "Contractor" means any sole proprietor, partnership, firm, | 2 |
| corporation, limited liability company, association or other | 3 |
| legal entity permitted by law to do business within the State | 4 |
| of Illinois who engages in construction as defined in this Act. | 5 |
| "Contractor" includes a general contractor and a | 6 |
| subcontractor.
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| "Department" means the Department of Labor.
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| "Director" means the Director of the Department of Labor.
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| "Employer" means any contractor that employs individuals | 10 |
| deemed employees under Section 10 of this Act; however, | 11 |
| "employer" does not include (i) the State of Illinois or its | 12 |
| officers, agencies, or political subdivisions or (ii) the | 13 |
| federal government.
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| "Entity" means any contractor for which an individual is | 15 |
| performing services and is not classified as an employee under | 16 |
| Section 10 of this Act; however, "entity" does not include (i) | 17 |
| the State of Illinois or its officers, agencies, or political | 18 |
| subdivisions or (ii) the federal government.
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| "Interested party" means a person with an interest in | 20 |
| compliance with this Act. | 21 |
| "Performing services" means the performance of any | 22 |
| constructing, altering, reconstructing, repairing, | 23 |
| rehabilitating, refinishing, refurbishing, remodeling, | 24 |
| remediating, renovating, custom fabricating, maintenance, | 25 |
| landscaping, improving, wrecking, painting, decorating, | 26 |
| demolishing, and adding to or subtracting from any building, |
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| structure, highway, roadway, street, bridge, alley, sewer, | 2 |
| ditch, sewage disposal plant, water works, parking facility, | 3 |
| railroad, excavation or other structure, project, development, | 4 |
| real property or improvement, or to do any part thereof, | 5 |
| whether or not the performance of the work herein described | 6 |
| involves the addition to, or fabrication into, any structure, | 7 |
| project, development, real property or improvement herein | 8 |
| described of any material or article of merchandise. | 9 |
| Construction shall also include moving construction related | 10 |
| materials on the job site to or from the job site.
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| "Employment" does not include services performed by an | 12 |
| individual as an operator of a truck, truck-tractor, or | 13 |
| tractor, if the person or entity to which the individual is | 14 |
| contracted for service shows that the individual: | 15 |
| (1) is either: | 16 |
| (i) registered or licensed as a motor carrier of | 17 |
| real or personal property by the Illinois Commerce | 18 |
| Commission, the Interstate Commerce Commission, or any | 19 |
| successor agencies; or | 20 |
| (ii) operating the equipment under an | 21 |
| owner-operator lease contract with the person or | 22 |
| entity, when the person or entity is registered, | 23 |
| licensed, or both, as a motor carrier of real or | 24 |
| personal property licensed by the Illinois Commerce | 25 |
| Commission, the Interstate Commerce Commission, or any | 26 |
| successor agencies; |
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| (2) has the right to terminate the lease contract and | 2 |
| thereafter has the right to perform the same or similar | 3 |
| services, on whatever basis and whenever he or she chooses, | 4 |
| for persons or entities other than the person or entity to | 5 |
| which the individual is contracted for services; | 6 |
| (3) is not required by the person or entity to which | 7 |
| the individual is contracted for services to perform | 8 |
| services, or be available to perform services, at specific | 9 |
| times or according to a schedule or for a number of hours | 10 |
| specified by the person or entity; pickup or delivery times | 11 |
| specified by a shipper or receiver shall not be deemed | 12 |
| specified by the person or entity; | 13 |
| (4) either leases the equipment or holds title to the | 14 |
| equipment, if the individual or entity from which the | 15 |
| equipment is leased, or which holds any security or other | 16 |
| interest in the equipment, is not: | 17 |
| (i) the person or entity to which the individual is | 18 |
| contracted for service; or | 19 |
| (ii) owned, controlled, or operated by or in common | 20 |
| with, to any extent, whether directly or indirectly, | 21 |
| the person or entity to which the individual is | 22 |
| contracted for services or a family member of a | 23 |
| shareholder, owner, or partner of the person or entity; | 24 |
| (5) pays all costs of licensing and operating the | 25 |
| equipment (except when federal or State law or regulation | 26 |
| requires the carrier to pay), and the costs are not |
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| separately reimbursed by any other individual or entity; | 2 |
| and | 3 |
| (6) maintains a separate business identity, offering | 4 |
| or advertising his or her services to the public, by | 5 |
| displaying its name and address on the equipment or | 6 |
| otherwise. | 7 |
| The definition of "truck owner-operator" under this | 8 |
| Section does not apply: | 9 |
| (1) if, as a condition for retaining the individual's | 10 |
| services, the person or entity to which the individual is | 11 |
| contracted specifies the person or entity from which the | 12 |
| equipment is to be leased or purchased; or | 13 |
| (2) to any services that are required to be covered as | 14 |
| a condition of approval of this Act by the United States | 15 |
| Secretary of Labor under Section 3304(a)(6)(A) of the | 16 |
| Federal Unemployment Tax Act. | 17 |
| Nothing in this definition of "truck owner-operator" shall | 18 |
| be construed or used to effect the existence or non-existence | 19 |
| of an employment relationship other than for purposes of this | 20 |
| Act.
For purposes of this definition of "truck owner-operator": | 21 |
| (1) "Family member" means any parent, sibling, child, | 22 |
| sibling of a parent, or any of the foregoing relations by | 23 |
| marriage. | 24 |
| (2) "Ownership", "control", or "operation" may be | 25 |
| through any one or more natural persons or proxies, powers | 26 |
| of attorney, nominees, proprietorships, partnerships, |
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| associations, corporations, trusts, joint stock companies, | 2 |
| or other entities or devices, or any combination thereof. | 3 |
| (3) "Persons or entity" means a sole proprietorship, | 4 |
| partnership, association, corporation, or any other legal | 5 |
| entity. | 6 |
| (Source: P.A. 95-26, eff. 1-1-08.) | 7 |
| (820 ILCS 185/10)
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| Sec. 10. Applicability; status of individuals performing | 9 |
| service. | 10 |
| (a) For the purposes of this Act, an individual performing | 11 |
| services for a contractor is deemed to be an employee of the | 12 |
| employer except as provided in subsections (b) , and (c) , and | 13 |
| (d) of this Section. | 14 |
| (b) An individual performing services for a contractor is | 15 |
| deemed to be an employee of the contractor unless it is shown | 16 |
| that: | 17 |
| (1) the individual has been and will continue to be | 18 |
| free from control or direction over the performance of the | 19 |
| service for the contractor, both under the individual's | 20 |
| contract of service and in fact; | 21 |
| (2) the service performed by the individual is outside | 22 |
| the usual course of services performed by the contractor; | 23 |
| and
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| (3) the individual is engaged in an independently | 25 |
| established trade, occupation, profession or business; or
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| (4) the individual is deemed a legitimate sole | 2 |
| proprietor or partnership under subsection (c) of this | 3 |
| Section. | 4 |
| (c) The sole proprietor or partnership performing services | 5 |
| for a contractor as a subcontractor is deemed legitimate if it | 6 |
| is shown that: | 7 |
| (1) the sole proprietor or partnership is performing | 8 |
| the service free from the direction or control over the | 9 |
| means and manner of providing the service, subject only to | 10 |
| the right of the contractor for whom the service is | 11 |
| provided to specify the desired result;
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| (2) the sole proprietor or partnership is not subject | 13 |
| to cancellation or destruction upon severance of the | 14 |
| relationship with the contractor;
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| (3) the sole proprietor or partnership has a | 16 |
| substantial investment of capital in the sole | 17 |
| proprietorship or partnership beyond ordinary tools and | 18 |
| equipment and a personal vehicle;
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| (4) the sole proprietor or partnership owns the capital | 20 |
| goods and gains the profits and bears the losses of the | 21 |
| sole proprietorship or partnership;
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| (5) the sole proprietor or partnership makes its | 23 |
| services available to the general public or the business | 24 |
| community on a continuing basis;
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| (6) the sole proprietor or partnership includes | 26 |
| services rendered on a Federal Income Tax Schedule as an |
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| independent business or profession;
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| (7) the sole proprietor or partnership performs | 3 |
| services for the contractor under the sole | 4 |
| proprietorship's or partnership's name;
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| (8) when the services being provided require a license | 6 |
| or permit, the sole proprietor or partnership obtains and | 7 |
| pays for the license or permit in the sole proprietorship's | 8 |
| or partnership's name;
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| (9) the sole proprietor or partnership furnishes the | 10 |
| tools and equipment necessary to provide the service;
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| (10) if necessary, the sole proprietor or partnership | 12 |
| hires its own employees without contractor approval, pays | 13 |
| the employees without reimbursement from the contractor | 14 |
| and reports the employees' income to the Internal Revenue | 15 |
| Service;
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| (11) the contractor does not represent the sole | 17 |
| proprietorship or partnership as an employee of the | 18 |
| contractor to its customers; and
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| (12) the sole proprietor or partnership has the right | 20 |
| to perform similar services for others on whatever basis | 21 |
| and whenever it chooses. | 22 |
| (d) Where a sole proprietor or partnership performing | 23 |
| services for a contractor as a subcontractor is deemed not | 24 |
| legitimate under subsection (c) of this Section, the sole | 25 |
| proprietorship or partnership shall be deemed an individual for | 26 |
| purposes of this Act.
An individual performing services for a |
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LRB096 18266 WGH 33641 b |
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| contractor is deemed to be an employee of the employer, unless | 2 |
| the contractor is a truck owner-operator as defined in Section | 3 |
| 5 of this Act. | 4 |
| (e) Subcontractors or lower tiered contractors are subject | 5 |
| to all provisions of this Act.
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| (f) A contractor shall not be liable under this Act for any | 7 |
| subcontractor's failure to properly classify persons | 8 |
| performing services as employees, nor shall a subcontractor be | 9 |
| liable for any lower tiered subcontractor's failure to properly | 10 |
| classify persons performing services as employees.
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| (Source: P.A. 95-26, eff. 1-1-08.)
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| Section 99. Effective date. This Act takes effect January | 13 |
| 1, 2011.
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