HB2838sam001 101ST GENERAL ASSEMBLY

Sen. Laura Fine

Filed: 5/30/2019

10100HB2838sam001 LRB101 07526 TAE 61437 a

AMENDMENT TO HOUSE BILL 2838

AMENDMENT NO. ______. Amend House Bill 2838 by replacing everything after the enacting clause with the following:

"Section 5. The Illinois Wage Payment and Collection Act is amended by adding Section 13.5 as follows:

(820 ILCS 115/13.5 new)

Sec. 13.5. Primary contractor responsibility for wage claims in construction industry.

(a) For all contracts entered into on or after July 1, 2019, a primary contractor making or taking a contract in the State for the erection, construction, alteration, or repair of a building, structure, or other private work in the State, shall assume, and is liable for, any debt owed to a wage claimant incurred pursuant to this Act by a subcontractor at any tier acting under, by, or for the primary contractor for the wage claimant's performance of labor included in the subject of the contract between the primary contractor and the owner. This Section does not apply to work performed by a contractor of the State, a special district, a city, a county, or any political subdivision of the State.

(b) For the purposes of this Section:

"Primary contractor" means a contractor that has a direct contractual relationship with a property owner. "Primary contractor" may have the same meaning as a "general contractor" or "prime contractor". However, a property owner who acts as a primary contractor related to the erection, construction, alteration, or repair of his or her primary residence where the aggregate costs of the project amounts to less than $100,000 shall be exempt from liability under this Section.

"Private work" means any erection, construction, alteration, or repair of a building, structure, or other work that is funded or financed wholly without public funds.

"Subcontractor" means a contractor that has a contractual relationship with the primary contractor or with another subcontractor at any tier, who furnishes any goods or services in connection with the contract between the primary contractor and the property owner, but does not include contractors who solely provide goods and transport of such goods related to the contract.

(c) The primary contractor's liability under this Section shall extend only to any unpaid wages, including interest owed and reasonable attorney's fees, but shall not extend to wage supplements, penalties, or liquidated damages.

(d) A primary contractor or any other person shall not evade or commit any act that negates the requirements of this Section. This Section does not prohibit a primary contractor or subcontractor at any tier from establishing by contract or enforcing any otherwise lawful remedies against a subcontractor it hires for liability created by the nonpayment of wages by the subcontractor or by a subcontractor at any tier working under that subcontractor.

(e) If the primary contractor complies with the following requirements, the primary contractor shall not be liable for payments to a subcontractors' employees of any tier for unpaid wages for the project identified and for the specific time period. The primary contractor must obtain from the subcontractor, for each project and for each specific time period the applicable payment is being made, the following prior to making any payment to the subcontractor:

(1) An affidavit from the subcontractor that all wages have been paid for each of the employees for the specific period of time of the applicable payment on the specific project. The affidavit shall identify the project's address, and list all of the subcontractor's employees by name, address, and the last four digits of the employee's social security number.

(2) A copy of the subcontractor's payroll records identifying each employee and redacting the employee's social security number, except for the last four digits, the payroll period, the amount of wages paid, hours worked, withholdings, and other deductions made.

(3) If the subcontractor has any lower tiered subcontractors on the project, the subcontractor shall supply similar affidavits, statements, and notices as required in this Section. If the subcontractor does not have any lower tiered subcontractors, the subcontractor shall state that it did not utilize any.

Any primary contractor that receives the statements and affidavits required under this subsection is not required to conduct any additional verification as to the truthfulness of the statements set forth therein, but is entitled to rely on good faith on the statements and authorize payment to the subcontractor for the specified project and time period. Any primary contractor that complies with the requirements set forth in this Section, has a defense to any action brought by a subcontractor's employee or third party entitled to receive any unpaid wages under this Section on said employee's behalf, provided that the primary contractor did not know or should not have known that the statements and affidavits contained false or misleading information or material omissions.

(f) Any primary contractor receiving the statements and affidavits required under subsection (e) is required to maintain all statements and affidavits for a period of one year from the date of making the payment to the subcontractor for the specific period.

(g) The obligations and remedies provided in this Section shall be in addition to any obligations and remedies otherwise provided by law, except that nothing in this Section shall be construed to impose liability on a primary contractor for anything other than unpaid wages, interest owed, and reasonable attorney's fees.

(h) Claims brought pursuant to this Section shall be done so in accordance with Section 11 of this Act.

Section 99. Effective date. This Act takes effect upon becoming law.".