HB3340 101ST GENERAL ASSEMBLY

LRB101 10336 JLS 55442 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB3340

Introduced , by Rep. Theresa Mah

SYNOPSIS AS INTRODUCED:

See Index

Amends the Department of Human Services Act. Contains a declaration of policy and intent. Requires the Department of Human Services, in partnership with specified State agencies, to develop and implement a plan to phase out, by July 1, 2024, authorizations under the Minimum Wage Law to pay an employee with a disability less than the minimum wage. Requires the Department to consult with specified organizations when implementing the phase-out plan. Requires the Secretary of Human Services to submit reports to the Governor and the General Assembly on the benchmarks and status of achieving the outcomes included in the phase-out plan and recommendations for funding levels or other resources necessary to implement the phase-out plan. Amends the Department of Labor Law. Prohibits the Director of Labor from authorizing a work activities center or other sheltered workshop to pay an employee who has a disability less than the minimum wage unless certain requirements are met. Amends the Illinois Council on Developmental Disabilities Law. Requires the Illinois Council on Developmental Disabilities to commission an independent study of the phase-out plan; determine whether the plans are having their intended effects; and make recommendations for possible changes in State law or policy regarding the employment of individuals with disabilities. Requires the Council to report its findings and recommendations to the Governor and the General Assembly by July 1, 2023. Amends the Minimum Wage Law. Provides that the State of Illinois shall not fund any entity that pays individuals less than the minimum wage under a certificate issued by the United States Department of Labor that authorizes Community Rehabilitation Programs to pay individuals less than the wage otherwise required for the individuals under federal law. Effective immediately, except that the provisions amending the Minimum Wage Law take effect July 1, 2024.

A BILL FOR

AN ACT concerning State government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Declaration of policy and intent. Section 14(c) of the Fair Labor Standards Act of 1938 allows employers to pay less than the minimum wage to workers who have disabilities. More than 100 Illinois entities now employ over 10,000 individuals with disabilities and pay those individuals a subminimum wage. Among those now working for less than minimum wage are people with autism, cerebral palsy, spina bifida, Down syndrome, and other intellectual, developmental, and sensory disabilities including blindness and deafness. The Illinois Employment First Act stipulates that "competitive and integrated employment shall be considered the first option when serving persons with disabilities of working age".

Section 5. The Department of Human Services Act is amended by adding Sections 1-75, 1-80, and 1-85 as follows:

(20 ILCS 1305/1-75 new)

Sec. 1-75. Phase-out plan.

(a) The Department, in partnership with other State agencies, including the Department of Labor, the Department of Healthcare and Family Services, the Department of Central Management Services, the Department of Commerce and Economic Opportunity, the Department of Employment Security, and the State Board of Education, shall develop and implement a plan to phase out, on or before July 1, 2024, authorizations under Sections 5 and 10 of the Minimum Wage Law to pay an employee with a disability less than the minimum wage otherwise required for the employee under Illinois law.

(b) The phase-out plan shall include all of the following:

(1) Benchmarks and desired outcomes for each year of the phase-out.

(2) A list of the resources necessary, including changes to State policy or service and program reimbursement rates, to ensure that individuals with disabilities receive support according to the needs and preferences of the individuals and in an integrated setting, regardless of the nature or severity of the individuals' disabilities.

(3) A description of alternative revenue options, including non-subminimum wage programs, for holders of certificates issued under Section 14(c) of the Fair Labor Standards Act of 1938.

(4) An examination of the measures needed to improve future employment and day service options for people with disabilities, including recommendations for new or reformulated day service strategies and approaches designed to strengthen statewide capacity to assure informed choice for integrated employment and integrated avocational leisure and volunteer options for every individual with a disability.

(5) A timeline and estimated costs for comprehensive training and certification of individual staff in supported employment and customized employment. The training shall also include benefits counseling and education to reduce misinformation that promotes dependency and discourages income-producing work. Training audiences shall include the following persons and organizations:

(A) Counselors from the Department's Division of Rehabilitation Services.

(B) Staff from the Department's Division of Developmental Disabilities.

(C) Organizations affiliated with the Department's Division of Rehabilitation Services or Division of Developmental Disabilities that are certified to serve persons with disabilities by the State or federal government.

(D) High school special education and transition staff.

(E) Independent Service Coordination agency staff.

(F) Community Work Incentives Coordinators.

Training content developed or approved by federal agencies shall be used, if possible, including training content from the following agencies:

(i) The Office of Disability Employment Policy in the United States Department of Labor.

(ii) The Rehabilitation Services Administration in the United States Department of Education.

(iii) The Administration for Community Living in the United States Department of Health and Human Services.

(iv) The Centers for Medicare and Medicaid Services in the United States Department of Health and Human Services.

(6) A proposal to modify the Business Enterprise Program and the State Use Program to ensure future State contracts are not awarded to entities paying workers less than the minimum wage and instead are awarded to entities that promote fully integrated work opportunities.

(7) Application for and use of all federal and State funding programs, including programs available under Medicaid waiver amendments and resources under the federal Workforce Innovation and Opportunity Act, to assist individuals with disabilities to obtain competitive, integrated employment.

(8) The tracking of outcomes of individuals with disabilities on the basis of:

(A) wages;

(B) hours worked;

(C) unemployment rates;

(D) the number of individuals who move from subminimum wage positions to competitive, integrated employment;

(E) the number of individuals who move from subminimum wage positions to nonpaying activities;

(F) the number of hours of paid supports; and

(G) the use and costs of Medicaid for acute health care and outpatient mental health care costs.

(9) In the formulation of the phase-out plan, special attention must be paid to building adequate capacity in the disability provider ecosystem to ensure individuals with all levels of disability can secure competitive, integrated employment as defined in the federal Workforce Innovation and Opportunity Act. Special attention must be given to prevent any systematic shift of income-earning activity to unpaid day habilitation activity.

(c) In implementing the phase-out plan, the Department shall consult with:

(1) the State agencies listed in subsection (a);

(2) the ARC of Illinois;

(3) the Illinois Association of Rehabilitation Facilities;

(4) the Illinois Network of Centers for Independent Living;

(5) the Illinois Task Force on Employment and Economic Opportunity for Persons with Disabilities;

(6) the Illinois Self-Advocacy Alliance;

(7) the Institute on Public Policy for People with Disabilities;

(8) the Great Lakes ADA Center;

(9) holders of certificates issued to Community Rehabilitation Programs under Section 14(c) of the Fair Labor Standards Act of 1938;

(10) the Association of People Supporting Employment First;

(11) the Illinois Association of the Deaf;

(12) the University Center of Excellence in Developmental Disabilities;

(13) the National Federation of the Blind of Illinois; and

(14) any other relevant stakeholders.

(d)(1) On or before January 1, 2020, the Secretary of Human Services shall submit the phase-out plan to the Governor and the General Assembly.

(2) On or before January 1, 2021, January 1, 2022, and January 1, 2023, the Secretary shall report to the Governor and the General Assembly on:

(A) the benchmarks and status of achieving the outcomes included in the phase-out plan; and

(B) recommendations for funding levels or other resources necessary to implement the phase-out plan.

(20 ILCS 1305/1-80 new)

Sec. 1-80. Customized work plans.

(a)(1) For each individual who is paid less than the minimum wage under Sections 5 and 10 of the Minimum Wage Law, the Department shall develop a written individualized customized work plan on or before January 1, 2021 that addresses how community integration and employment will be accomplished.

(2) The customized work plan shall be developed with input from the individual receiving services, and, where applicable, from the individual's family, the individual's vocational rehabilitation counselor, and any staff from the Department's Division of Developmental Disabilities or a Pre-Admission Screening/Independent Service Coordination agency who have interacted with the individual concerning employment and other life goals.

(3) The Department shall use appropriate communication devices and techniques, including sign language, to facilitate the involvement of the individual in the development of each customized work plan.

(b) Customized work plans shall include all of the following:

(1) A recommendation on jobs and careers that allow the job seeker to thrive and contribute to an employer's needs.

(2) A description of the supports required for the individual to work, if so desired by the individual, in the most integrated setting appropriate to complete the tasks and requirements of his or her job with minimal intrusion.

(3) A listing of barriers that prevent the individual from receiving the services and supports required for the individual to work in the most integrated setting appropriate to meet the individual's needs, including:

(A) barriers to accessing funding and resources, including for staffing, transportation, and other needed services and supports;

(B) decision-making by the individual or the individual's representative, as appropriate;

(C) barriers to accessing medical or behavioral support needs;

(D) family members' concerns or opposition; and

(E) options for activity other than compensated employment in the person's life and community.

(4) An update on the status and progress made toward addressing and resolving barriers identified under paragraph (3) in a previous customized work plan.

(c) The Department shall develop, in consultation with interested stakeholders, the protocol and format for the customized work plan.

(d) On an annual basis and at any other time requested by an individual who is paid less than the minimum wage under Sections 5 and 10 of the Minimum Wage Law, the individual and the individual's vocational rehabilitation counselor, or other responsible party designated by the Secretary, shall discuss the most integrated employment setting that is appropriate for the individual in accordance with the federal Americans with Disabilities Act. The annual review shall document in the individual's customized work plan:

(1) any discussions held under this subsection; and

(2) any recommendations that resulted from the discussions.

(e)(1) The Department shall track the progress of individuals who have customized work plans by collecting the following data:

(A) the wages of the individuals;

(B) the unemployment rates of the individuals;

(C) the number of individuals who moved from subminimum wage positions to competitive, integrated employment;

(D) the number of individuals who moved from subminimum wage positions to nonpaying activities; and

(E) the health costs, including outpatient mental health costs, paid by Medicaid for the individuals.

(2) On or before January 1, 2022, January 1, 2023, and January 1, 2024, the Secretary shall submit to the Governor and the General Assembly a summary of the data collected under paragraph (1) on a statewide and regional basis. The report to the General Assembly shall be filed with the Clerk of the House of Representatives and the Secretary of the Senate.

(20 ILCS 1305/1-85 new)

Sec. 1-85. 14c Worker Protection Fund.

(a) The 14c Worker Protection Fund is created as a special fund in the State treasury. Moneys in the Fund shall be used, subject to appropriation, by the Department to subsidize wages paid to workers with intellectual and developmental disabilities who were or could be employed in special minimum wage positions under Section 14(c) of the Fair Labor Standards Act of 1938.

(b) The Department shall adopt rules establishing a process for the administration of the Fund in an equitable and transparent manner to ensure no worker previously employed in a subminimum work position loses any opportunity for meaningful activity or employment experiences after the effective date of this amendatory Act of the 101st General Assembly.

(c) A minimum percentage of the budget for Department's Division of Developmental Disabilities shall be committed to the Fund as follows:

(1) in fiscal years 2020 and 2021, 1%;

(2) in fiscal year 2022, 2%;

(3) in fiscal year 2023, 3%;

(4) in fiscal year 2024 and each fiscal year thereafter, 4%.

Section 10. The Department of Labor Law of the Civil Administrative Code of Illinois is amended by adding Section 1505-215 as follows:

(20 ILCS 1505/1505-215 new)

Sec. 1505-215. Special wage certificates; persons with disabilities.

(a) As used in this Section:

"Director" means the Director of Labor.

"Federal certificate" means a certificate that the United States Department of Labor issues to a work activities center or other sheltered workshop to allow the work activities center or sheltered workshop to pay an individual less than the wage otherwise required for that individual under the federal Fair Labor Standards Act of 1938.

(b)(1) Subject to the limitations in this Section, the Director may not authorize a work activities center or other sheltered workshop to pay an employee who has a disability less than the minimum wage otherwise required under the Minimum Wage Law for the employee.

(2) Beginning January 1, 2022, the Director may not authorize a work activities center or other sheltered workshop to pay an employee with a disability less than the minimum wage if the work activities center or sheltered workshop was not authorized to do so before January 1, 2021 by the United States Department of Labor.

(c)(1) To authorize a work activities center or other sheltered workshop to pay less than the minimum wage, the Director shall:

(A) issue a State certificate that sets wages for employees of the work activities center or sheltered workshop;

(B) accept a federal certificate for the work activities center or sheltered workshop; or

(C) grant an exception for the work activities center or sheltered workshop, but only if:

(i) the Director has not issued a State certificate to the work activities center or sheltered workshop;

(ii) the work activities center or sheltered workshop is not eligible for a federal certificate; and

(iii) the Director investigates and holds a hearing on the exception.

(2) The Director shall accept a federal certificate if a work activities center or other sheltered workshop submits that federal certificate to the Director within 10 days after the work activities center or sheltered workshop receives the federal certificate.

(d)(1) Each certificate that the Director issues under this Section shall state the period for which the certificate is in effect.

(2) The acceptance of a federal certificate does not apply automatically to an individual whom a work activities center or other sheltered workshop continues to employ after the individual completes a training program that the work activities center or sheltered workshop runs.

(e)(1) The Director may revoke acceptance of a federal certificate if:

(A) the United States Department of Labor revokes the federal certificate; or

(B) at any time before revocation by the Department of Labor and after an investigation and hearing, the Director finds good cause to revoke the acceptance.

(2) The Director shall send notice of a hearing under this subsection, by certified mail, to the holder of the federal certificate at least 30 days before the hearing.

Section 15. The Illinois Council on Developmental Disabilities Law is amended by adding Section 2008 as follows:

(20 ILCS 4010/2008 new)

Sec. 2008. Independent study on phase-out and customized work plans.

(a) The Illinois Council on Developmental Disabilities shall:

(1) commission an independent study of the phase-out plan and the customized work plans described in Sections 1-75 and 1-80 of the Department of Human Services Act;

(2) determine through the study:

(A) whether the plans are having their intended effects;

(B) how many people have transitioned from subminimum wage work to competitive, integrated employment opportunities;

(C) whether there are any significant, related, regional, or demographic trends; and

(D) whether there are health care savings or costs as a result of the plans; and

(3) make any related recommendations for possible changes in State law or policy regarding the employment of individuals with disabilities.

(b) On or before July 1, 2023, the Illinois Council on Developmental Disabilities shall report its findings and recommendations to the Governor and the General Assembly.

Section 20. The Minimum Wage Law is amended by changing Section 10 as follows:

(820 ILCS 105/10) (from Ch. 48, par. 1010)

Sec. 10. (a) The Director shall make and revise administrative regulations, including definitions of terms, as he deems appropriate to carry out the purposes of this Act, to prevent the circumvention or evasion thereof, and to safeguard the minimum wage established by the Act. Regulations governing employment of learners may be issued only after notice and opportunity for public hearing, as provided in subsection (c) of this Section.

(b) (Blank). In order to prevent curtailment of opportunities for employment, avoid undue hardship, and safeguard the minimum wage rate under this Act, the Director may also issue regulations providing for the employment of workers with disabilities at wages lower than the wage rate applicable under this Act, under permits and for such periods of time as specified therein; and providing for the employment of learners at wages lower than the wage rate applicable under this Act. However, such regulation shall not permit lower wages for persons with disabilities on any basis that is unrelated to such person's ability resulting from his disability, and such regulation may be issued only after notice and opportunity for public hearing as provided in subsection (c) of this Section.

(c) Prior to the adoption, amendment or repeal of any rule or regulation by the Director under this Act, except regulations which concern only the internal management of the Department of Labor and do not affect any public right provided by this Act, the Director shall give proper notice to persons in any industry or occupation that may be affected by the proposed rule or regulation, and hold a public hearing on his proposed action at which any such affected person, or his duly authorized representative, may attend and testify or present other evidence for or against such proposed rule or regulation. Rules and regulations adopted under this Section shall be filed with the Secretary of State in compliance with "An Act concerning administrative rules", as now or hereafter amended. Such adopted and filed rules and regulations shall become effective 10 days after copies thereof have been mailed by the Department to persons in industries affected thereby at their last known address.

(d) The commencement of proceedings by any person aggrieved by an administrative regulation issued under this Act does not, unless specifically ordered by the Court, operate as a stay of that administrative regulation against other persons. The Court shall not grant any stay of an administrative regulation unless the person complaining of such regulation files in the Court an undertaking with a surety or sureties satisfactory to the Court for the payment to the employees affected by the regulation, in the event such regulation is affirmed, of the amount by which the compensation such employees are entitled to receive under the regulation exceeds the compensation they actually receive while such stay is in effect.

(Source: P.A. 99-143, eff. 7-27-15.)

(820 ILCS 105/5 rep.)

Section 25. The Minimum Wage Law is amended by repealing Section 5.

Section 30. The State Finance Act is amended by adding Section 5.891 as follows:

(30 ILCS 105/5.891 new)

Sec. 5.891. The 14c Worker Protection Fund.

Section 99. Effective date. This Act takes effect upon becoming law, except that Sections 20 and 25 of this Act take effect July 1, 2024.