AUTHORITY: Implementing and authorized by Section 11b(c) of the Prevailing Wage Act [820 ILCS 130/11b(c)].

SOURCE: Adopted at 21 Ill. Reg. 6845, effective May 20, 1997; amended at 25 Ill. Reg. 930, effective January 5, 2001.

SUBPART A: GENERAL PROVISIONS

 

Section 353.100  Purpose of this Part

 

This Part implements Public Act 88-359, Section 5 (codified at 820 ILCS 130/11b), an amendment to the Prevailing Wage Act [820 ILCS 130], that requires the Director of Labor (in a manner s/he deems appropriate) to investigate the alleged discharge, discipline, or discrimination against "whistleblowers" in violation of Section 11b(a) of the Act, and to take affirmative action to remedy such conduct, including but not limited to ordering the removal of any information contained in personnel files and the rehiring or reinstatement of whistleblowers with backpay.

 

Section 353.110  Definitions

 

            "Act" means the Prevailing Wage Act [820 ILCS 130].

 

            "Application" means a signed and completed form (provided by the Director of the Illinois Department of Labor) requesting the Director of Labor to review a discharge, discipline or discrimination that allegedly violates Section 11b(a) of the Act.

 

            "Authorized representative of employees" means an individual from a union or  collective bargaining unit who exercises any rights afforded by the Act on behalf of him/herself or a member of the union or collective bargaining unit.

 

            "Complainant" means an employee or an authorized representative of employees who believes that s/he has been discharged, disciplined, or discriminated against in violation of Section 11b(a) of the Act, and has filed an application with the Director of the Illinois Department of Labor.

 

            "Day" means a calendar day.

 

            "Department" means the Illinois Department of Labor.

 

            "Director" means the Director of the Department or a duly authorized representative.

 

            "Employee" means a laborer, worker, and/or mechanic covered by the Act.

 

            "Party" means a Complainant or a Respondent.

 

            "Person" means one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any group of persons.

 

            "Respondent" means any person who has allegedly violated Section 11b(a) of the Act.

SUBPART B: OBLIGATIONS AND PROHIBITED CONDUCT

 

Section 353.200  Obligations and Prohibited Conduct

 

No person shall discharge, discipline, or in any other way discriminate against, or cause to be discharged, disciplined, or discriminated against, any employee or any authorized representative of employees by reason of the fact that the employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this Act, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of this Act, or offers any evidence of any violation of this Act. (Section 11b(a) of the Act)

SUBPART C: ADMINISTRATION AND ENFORCEMENT

 

Section 353.300  Filing an Application

 

a)         An application may be filed by a Complainant, by his/her duly authorized representative, or by his/her attorney.

 

b)         An application shall be filed with the Director at the Department's Chicago or Springfield office.

 

c)         An application shall be filed within 30 days after the alleged discharge, discipline, or discrimination occurred.

 

d)         Filing requirements shall be construed to mean the Director's receipt of the application. The Complainant shall file his/her application by telephone facsimile, telegram, hand delivery, or next-day delivery service, or U.S. Mail. Proof that the filing was dispatched by the prescribed date shall be prima facie proof that the filing was timely received.

 

Section 353.310  Investigation

 

a)         Upon receipt of an application under this Part, the Director shall notify the Respondent of the existence of the application, and furnish the Respondent with a copy of the application to enable a reasonable response.

 

b)         The Respondent's response must be filed with the Director at the Department's Chicago office within 10 days after notification.

 

c)         The Director shall investigate and gather data concerning such case, and as part of the investigation may enter and inspect such places and records (and make copies thereof), may interview the Respondent and the Respondent's employees, and may require the production of any documentary or other evidence deemed necessary to determine whether prohibited conduct has occurred.

 

d)         The Director may issue an administrative subpoena to compel the attendance of a witness and/or the production of documents upon his/her determination that the information to be produced by a subpoena is necessary and relevant to his/her investigation, and that the Director cannot obtain the information by any other reasonable means.

 

e)         Investigations under this Part shall be conducted in a manner which protects the confidentiality of any person, other than the Complainant, who provides information on a confidential basis.

 

Section 353.320  Issuance of Decision

 

a)         The Director shall make findings of fact, including whether a violation of Section 11b(a) of the Act occurred. The Director shall issue his/her findings in a decision by certified mail to the parties.

 

b)         If the Director finds that a violation did not occur, s/he shall issue a decision denying the application. The decision shall advise the Complainant that the findings of fact shall become the final order of the Director denying the application unless, within 15 days of its receipt, the Complainant files a request for a hearing on the application with the Director at the Department's Chicago office.

 

c)         If the Director finds that a violation has occurred, s/he shall issue a decision incorporating his/her findings and requiring the Respondent to take such affirmative action to remedy the conduct as the Director deems appropriate. The decision shall advise the Respondent that the findings of fact shall become the final order of the Director unless, within 15 days after its receipt, the Respondent files a request for a hearing on the application with the Director at the Department's Chicago office.

 

d)         The Director may, in his/her discretion, make a determination of no finding. The parties and the Director shall be in joint agreement that such finding is appropriate to the investigation and may be made to promote the effective resolution of the review requested.

 

e)         Filing requirements shall be construed to mean the Director's receipt of the request. The party requesting a hearing shall file by telephone facsimile, telegram, hand delivery, or next-day delivery service. Proof that the filing was dispatched by the prescribed date shall be prima facie proof that the filing was timely received.

 

Section 353.330  Request for Hearing

 

The request shall be prominently marked "REQUEST FOR HEARING" on both the letter and the envelope. The request must set forth the reasons why the party believes the Director misconstrued the evidence or misapplied the law to the facts, and any newly discovered evidence which the party could not have discovered during the Director's investigation. The party requesting a hearing shall serve copies of the request on the opposing party on the same day and in the same manner that the party files the request for the hearing with the Director.

 

Section 353.340  Hearings

 

Upon receipt of a properly filed "request for hearing", the Director shall convene an administrative hearing pursuant to the provisions of the Illinois Administrative Procedure Act [5 ILCS 100] and 56 Ill. Adm. Code 120.

 

(Source:  Amended at 25 Ill. Reg. 930, effective January 5, 2001)

 

Section 353.350  Judicial Review

 

A final order issued by the Director under Section 11b of the Act and this Part is subject to judicial review under the Administrative Review Law [735 ILCS 5/Art. 3].