Rep. Elizabeth "Lisa" Hernandez

Filed: 3/19/2024

 

 


 

 


 
10300HB5345ham001LRB103 38149 SPS 71155 a

1
AMENDMENT TO HOUSE BILL 5345

2    AMENDMENT NO. ______. Amend House Bill 5345 by replacing
3everything after the enacting clause with the following:
 
4    "Section 1. Short title; references to Act.
5    (a) Short title. This Act may be cited as the High Road
6Restaurant Program Act.
7    (b) References to Act. This Act may be referred to as the
8One Fair Wage with Tips on Top Act.
 
9    Section 5. High Road Restaurant Program.
10    (a) The Department of Commerce and Economic Opportunity
11shall create the High Road Restaurant Program to recognize
12restaurants that voluntarily take no allowance for gratuities
13under subsection (c) of the Minimum Wage Law.
14    (b) To qualify for recognition as a High Road Restaurant
15under the program, an owner of a restaurant must certify, on a
16form created by the Department, that the restaurant has

 

 

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1satisfied the following requirements:
2        (1) that it takes no allowance for gratuities under
3    subsection (c) of Section 4 of the Minimum Wage Law;
4        (2) that all of the restaurant's owners and employees
5    have completed an equity training program approved by the
6    Department under Section 10; and
7        (3) that it has not been found to have violated the
8    Illinois Wage Payment and Collection Act or the Minimum
9    Wage Law by the Department of Labor or a court within the
10    prior 3 years.
 
11    Section 10. Equity training program. The Department of
12Commerce and Economic Opportunity shall approve an equity
13training program that trains restaurant owners and employees
14on how to achieve equity among employees in the restaurant
15while maintaining profitability and eliminating the subminimum
16wage for workers who have customarily received gratuities. To
17develop the content of the training and provide the training,
18the Department may work with non-profit organizations with an
19established history of working toward the goal of a full
20minimum wage plus gratuities for employees who have
21customarily received gratuities, eliminating the subminimum
22wage for such employees, and with a history of advancing
23racial equity in restaurants. The Director of Commerce and
24Economic Opportunity shall have the authority to approve any
25equity training program under this Section and certify any

 

 

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1organization to provide the training that meets the criteria
2described in this Section. Under no circumstances may a
3restaurant owner charge an employee a fee for participation in
4an equity training program. For purposes of this Section,
5"equity" means efforts, regulations, policies, programs,
6standards, processes, and any other functions of government or
7principles of law and governance intended to: (1) identify and
8remedy past and present patterns of discrimination or
9inequality, and disparities in outcome; (2) ensure that
10patterns of discrimination, inequality, and disparities in
11outcome, whether intentional or unintentional, are neither
12reinforced nor perpetuated; and (3) prevent the emergence and
13persistence of foreseeable future patterns of discrimination
14against or disparities in outcome against minority persons, as
15that term is defined in Section 2 of the Business Enterprise
16for Minorities, Women, and Persons with Disabilities Act.
 
17    Section 15. Benefits of program membership. The Department
18of Commerce and Economic Opportunity shall certify restaurants
19participating in the High Road Restaurant Program that satisfy
20the requirements described in subsection (b) of Section 5 and
21provide those restaurants with the following benefits:
22        (1) issuing the owner of a restaurant a certificate
23    identifying the restaurant as a certified High Road
24    Restaurant, that may be posted inside of the restaurant;
25        (2) be listed on the Department's website as a

 

 

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1    certified High Road Restaurant; and
2        (3) provide access to zero interest loans to assist
3    with the restaurant's participation in the High Road
4    Restaurant Program, subject to appropriation.
 
5    Section 20. Revocation of certification under the program.
6    (a) Upon a finding that a restaurant certified under this
7Act has committed a substantial violation of the Illinois Wage
8Payment and Collection Act or the Minimum Wage Law, the
9Department of Commerce and Economic Opportunity shall revoke
10the certification as soon as practicable. Upon written notice
11of the revocation of the certification, the restaurant shall
12be removed from the Department's website and shall not be
13permitted to display any previously issued High Road
14Restaurant certification.
15    (b) The Department shall fine any restaurant that violates
16any provision of this Act up to $1,500 per day for each
17violation, payable to the Department of Commerce and Economic
18Opportunity to administer and enforce this Act.
 
19    Section 25. Rulemaking. The Department of Commerce and
20Economic Opportunity may adopt rules to implement and enforce
21the provisions of this Act.
 
22    Section 30. Repeal. This Act is repealed on January 1,
232028.
 

 

 

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1    Section 90. The Minimum Wage Law is amended by changing
2Sections 3, 4, and 9 and by adding Section 12.1 as follows:
 
3    (820 ILCS 105/3)  (from Ch. 48, par. 1003)
4    Sec. 3. As used in this Act:
5    (a) "Director" means the Director of the Department of
6Labor, and "Department" means the Department of Labor.
7    (b) "Wages" means compensation due to an employee by
8reason of his employment, including allowances determined by
9the Director in accordance with the provisions of this Act for
10gratuities and, when furnished by the employer, for meals and
11lodging actually used by the employee.
12    (c) "Employer" includes any individual, partnership,
13association, corporation, limited liability company, business
14trust, governmental or quasi-governmental body, or any person
15or group of persons acting directly or indirectly in the
16interest of an employer in relation to an employee, for which
17one or more persons are gainfully employed on some day within a
18calendar year. An employer is subject to this Act in a calendar
19year on and after the first day in such calendar year in which
20he employs one or more persons, and for the following calendar
21year.
22    (d) "Employee" includes any individual permitted to work
23by an employer in an occupation, and includes, notwithstanding
24subdivision (1) of this subsection (d), one or more domestic

 

 

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1workers as defined in Section 10 of the Domestic Workers' Bill
2of Rights Act, but does not include any individual permitted
3to work:
4        (1) For an employer employing fewer than 4 employees
5    exclusive of the employer's parent, spouse or child or
6    other members of his immediate family.
7        (2) As an employee employed in agriculture or
8    aquaculture (A) if such employee is employed by an
9    employer who did not, during any calendar quarter during
10    the preceding calendar year, use more than 500 man-days of
11    agricultural or aquacultural labor, (B) if such employee
12    is the parent, spouse or child, or other member of the
13    employer's immediate family, (C) if such employee (i) is
14    employed as a hand harvest laborer and is paid on a piece
15    rate basis in an operation which has been, and is
16    customarily and generally recognized as having been, paid
17    on a piece rate basis in the region of employment, (ii)
18    commutes daily from his permanent residence to the farm on
19    which he is so employed, and (iii) has been employed in
20    agriculture less than 13 weeks during the preceding
21    calendar year, (D) if such employee (other than an
22    employee described in clause (C) of this subparagraph):
23    (i) is 16 years of age or under and is employed as a hand
24    harvest laborer, is paid on a piece rate basis in an
25    operation which has been, and is customarily and generally
26    recognized as having been, paid on a piece rate basis in

 

 

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1    the region of employment, (ii) is employed on the same
2    farm as his parent or person standing in the place of his
3    parent, and (iii) is paid at the same piece rate as
4    employees over 16 are paid on the same farm.
5        (3) (Blank).
6        (4) As an outside salesman.
7        (5) As a member of a religious corporation or
8    organization.
9        (6) At an accredited Illinois college or university
10    employed by the college or university at which he is a
11    student who is covered under the provisions of the Fair
12    Labor Standards Act of 1938, as heretofore or hereafter
13    amended.
14        (7) For a motor carrier and with respect to whom the
15    U.S. Secretary of Transportation has the power to
16    establish qualifications and maximum hours of service
17    under the provisions of Title 49 U.S.C. or the State of
18    Illinois under Section 18b-105 (Title 92 of the Illinois
19    Administrative Code, Part 395 - Hours of Service of
20    Drivers) of the Illinois Vehicle Code.
21        (8) As an employee employed as a player who is 28 years
22    old or younger, a manager, a coach, or an athletic trainer
23    by a minor league professional baseball team not
24    affiliated with a major league baseball club, if (A) the
25    minor league professional baseball team does not operate
26    for more than 7 months in any calendar year or (B) during

 

 

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1    the preceding calendar year, the minor league professional
2    baseball team's average receipts for any 6-month period of
3    the year were not more than 33 1/3% of its average receipts
4    for the other 6 months of the year.
5    The above exclusions from the term "employee" may be
6further defined by regulations of the Director.
7    (e) "Occupation" means an industry, trade, business or
8class of work in which employees are gainfully employed.
9    (f) "Gratuities" means voluntary monetary contributions to
10an employee from a guest, patron or customer in connection
11with services rendered.
12    (g) "Outside salesman" means an employee regularly engaged
13in making sales or obtaining orders or contracts for services
14where a major portion of such duties are performed away from
15his employer's place of business.
16    (h) "Day camp" means a seasonal recreation program in
17operation for no more than 16 weeks intermittently throughout
18the calendar year, accommodating for profit or under
19philanthropic or charitable auspices, 5 or more children under
2018 years of age, not including overnight programs. The term
21"day camp" does not include a "day care agency", "child care
22facility" or "foster family home" as licensed by the Illinois
23Department of Children and Family Services.
24    (i) "Interested party" means an organization that monitors
25or is attentive to compliance with public or worker safety
26laws, wage and hour requirements, or other statutory

 

 

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1requirements.
2(Source: P.A. 99-758, eff. 1-1-17; 100-192, eff. 8-18-17.)
 
3    (820 ILCS 105/4)  (from Ch. 48, par. 1004)
4    Sec. 4. (a)(1) Every employer shall pay to each of his
5employees in every occupation wages of not less than $2.30 per
6hour or in the case of employees under 18 years of age wages of
7not less than $1.95 per hour, except as provided in Sections 5
8and 6 of this Act, and on and after January 1, 1984, every
9employer shall pay to each of his employees in every
10occupation wages of not less than $2.65 per hour or in the case
11of employees under 18 years of age wages of not less than $2.25
12per hour, and on and after October 1, 1984 every employer shall
13pay to each of his employees in every occupation wages of not
14less than $3.00 per hour or in the case of employees under 18
15years of age wages of not less than $2.55 per hour, and on or
16after July 1, 1985 every employer shall pay to each of his
17employees in every occupation wages of not less than $3.35 per
18hour or in the case of employees under 18 years of age wages of
19not less than $2.85 per hour, and from January 1, 2004 through
20December 31, 2004 every employer shall pay to each of his or
21her employees who is 18 years of age or older in every
22occupation wages of not less than $5.50 per hour, and from
23January 1, 2005 through June 30, 2007 every employer shall pay
24to each of his or her employees who is 18 years of age or older
25in every occupation wages of not less than $6.50 per hour, and

 

 

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1from July 1, 2007 through June 30, 2008 every employer shall
2pay to each of his or her employees who is 18 years of age or
3older in every occupation wages of not less than $7.50 per
4hour, and from July 1, 2008 through June 30, 2009 every
5employer shall pay to each of his or her employees who is 18
6years of age or older in every occupation wages of not less
7than $7.75 per hour, and from July 1, 2009 through June 30,
82010 every employer shall pay to each of his or her employees
9who is 18 years of age or older in every occupation wages of
10not less than $8.00 per hour, and from July 1, 2010 through
11December 31, 2019 every employer shall pay to each of his or
12her employees who is 18 years of age or older in every
13occupation wages of not less than $8.25 per hour, and from
14January 1, 2020 through June 30, 2020, every employer shall
15pay to each of his or her employees who is 18 years of age or
16older in every occupation wages of not less than $9.25 per
17hour, and from July 1, 2020 through December 31, 2020 every
18employer shall pay to each of his or her employees who is 18
19years of age or older in every occupation wages of not less
20than $10 per hour, and from January 1, 2021 through December
2131, 2021 every employer shall pay to each of his or her
22employees who is 18 years of age or older in every occupation
23wages of not less than $11 per hour, and from January 1, 2022
24through December 31, 2022 every employer shall pay to each of
25his or her employees who is 18 years of age or older in every
26occupation wages of not less than $12 per hour, and from

 

 

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1January 1, 2023 through December 31, 2023 every employer shall
2pay to each of his or her employees who is 18 years of age or
3older in every occupation wages of not less than $13 per hour,
4and from January 1, 2024 through December 31, 2024, every
5employer shall pay to each of his or her employees who is 18
6years of age or older in every occupation wages of not less
7than $14 per hour; and on and after January 1, 2025, every
8employer shall pay to each of his or her employees who is 18
9years of age or older in every occupation wages of not less
10than $15 per hour.
11    (2) Unless an employee's wages are reduced under Section
126, then in lieu of the rate prescribed in item (1) of this
13subsection (a), an employer may pay an employee who is 18 years
14of age or older, during the first 90 consecutive calendar days
15after the employee is initially employed by the employer, a
16wage that is not more than 50¢ less than the wage prescribed in
17item (1) of this subsection (a); however, an employer shall
18pay not less than the rate prescribed in item (1) of this
19subsection (a) to:
20        (A) a day or temporary laborer, as defined in Section
21    5 of the Day and Temporary Labor Services Act, who is 18
22    years of age or older; and
23        (B) an employee who is 18 years of age or older and
24    whose employment is occasional or irregular and requires
25    not more than 90 days to complete.
26    (3) At no time on or before December 31, 2019 shall the

 

 

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1wages paid to any employee under 18 years of age be more than
250¢ less than the wage required to be paid to employees who are
3at least 18 years of age under item (1) of this subsection (a).
4Beginning on January 1, 2025 2020, every employer shall pay to
5each of his or her employees who is under 18 years of age that
6has worked more than 650 hours for the employer during any
7calendar year a wage not less than the wage required for
8employees who are 18 years of age or older under paragraph (1)
9of subsection (a) of Section 4 of this Act. Every employer
10shall pay to each of his or her employees who is under 18 years
11of age that has not worked more than 650 hours for the employer
12during any calendar year: (1) $8 per hour from January 1, 2020
13through December 31, 2020; (2) $8.50 per hour from January 1,
142021 through December 31, 2021; (3) $9.25 per hour from
15January 1, 2022 through December 31, 2022; (4) $10.50 per hour
16from January 1, 2023 through December 31, 2023; (5) $12 per
17hour from January 1, 2024 through December 31, 2024; and (6)
18$13 per hour on and after January 1, 2025.
19    (b) No employer shall discriminate between employees on
20the basis of sex or mental or physical disability, except as
21otherwise provided in this Act by paying wages to employees at
22a rate less than the rate at which he pays wages to employees
23for the same or substantially similar work on jobs the
24performance of which requires equal skill, effort, and
25responsibility, and which are performed under similar working
26conditions, except where such payment is made pursuant to (1)

 

 

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1a seniority system; (2) a merit system; (3) a system which
2measures earnings by quantity or quality of production; or (4)
3a differential based on any other factor other than sex or
4mental or physical disability, except as otherwise provided in
5this Act.
6    (c) Before January 1, 2025, every Every employer of an
7employee engaged in an occupation in which gratuities have
8customarily and usually constituted and have been recognized
9as part of the remuneration for hire purposes is entitled to an
10allowance for gratuities as part of the hourly wage rate
11provided in Section 4, subsection (a) in an amount not to
12exceed 40% of the applicable minimum wage rate. On and after
13January 1, 2025, an employer shall not be entitled to an
14allowance for gratuities and shall pay each employee no less
15than the applicable minimum wage rate as provided in paragraph
16(1) of subsection (a). An allowance for gratuities shall only
17be taken for shifts in which an employee's wages and
18gratuities combined over that shift result in an average
19hourly wage rate equal to or greater than the hourly minimum
20wage provided in paragraph (1) of subsection (a).
21    The Director shall require each employer desiring an
22allowance for gratuities to provide substantial evidence that
23the amount claimed, which may not exceed the allowance amount
24prescribed in this subsection 40% of the applicable minimum
25wage rate, was received by the employee in the period for which
26the claim of exemption is made, and no part thereof was

 

 

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1returned to the employer, and that the employer provides, at
2the time of payment, a written accounting of the hourly wages
3paid, the gratuities earned, and the average hourly
4remuneration for each shift worked during the pay period.
5    An employer shall not keep any gratuities received by an
6employee for any purpose or allow a manager or a supervisor to
7keep any portion of an employee's gratuities, regardless of
8whether or not the employer takes an allowance for gratuities.
9Nothing in this subsection shall be construed to prohibit an
10otherwise valid pooling of gratuities among non-managerial and
11non-supervisory employees.
12    (d) No camp counselor who resides on the premises of a
13seasonal camp of an organized not-for-profit corporation shall
14be subject to the adult minimum wage if the camp counselor (1)
15works 40 or more hours per week, and (2) receives a total
16weekly salary of not less than the adult minimum wage for a
1740-hour week. If the counselor works less than 40 hours per
18week, the counselor shall be paid the minimum hourly wage for
19each hour worked. Every employer of a camp counselor under
20this subsection is entitled to an allowance for meals and
21lodging as part of the hourly wage rate provided in Section 4,
22subsection (a), in an amount not to exceed 25% of the minimum
23wage rate.
24    (e) A camp counselor employed at a day camp is not subject
25to the adult minimum wage if the camp counselor is paid a
26stipend on a onetime or periodic basis and, if the camp

 

 

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1counselor is a minor, the minor's parent, guardian or other
2custodian has consented in writing to the terms of payment
3before the commencement of such employment.
4(Source: P.A. 101-1, eff. 2-19-19.)
 
5    (820 ILCS 105/9)  (from Ch. 48, par. 1009)
6    Sec. 9. (a) Every employer subject to any provision of
7this Act or of any regulations issued under this Act shall keep
8a summary of this Act approved by the Director, and copies of
9any applicable regulations issued under this Act or a summary
10of such regulations, posted in a conspicuous and accessible
11place in or about the premises wherever any person subject to
12this Act is employed. Every employer subject to any provision
13of this Act or any regulations issued under this Act with
14employees who do not regularly report to a physical workplace,
15such as employees who work remotely or travel for work, shall
16also provide the summaries and regulations by email to its
17employees or conspicuous posting on the employer's website or
18intranet site, if such site is regularly used by the employer
19to communicate work-related information to employees and is
20able to be regularly accessed by all employees, freely and
21without interference. Employers shall be furnished copies of
22such summaries and regulations by the State on request without
23charge.
24    (b) Every employer shall provide each employee who
25receives gratuities, in writing in English and in the language

 

 

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1identified by each employee as the primary language of the
2employee, at the time of hiring and at any time the employee's
3compensation changes, a notice containing:
4        (1) the rate or rates of pay and basis thereof,
5    whether paid by the hour, shift, day, week, salary, or
6    other method, including overtime compensation rates for
7    non-exempt employees and allowances claimed as part of the
8    minimum wage, including gratuities;
9        (2) employees' rights to be compensated by their
10    employer at the rate prescribed in subsection (a) of
11    Section 4 when gratuities do not bring the employee to
12    that rate at the end of each shift;
13        (3) employee rights to retain gratuities as described
14    in this Act; and
15        (4) and other relevant employee rights deemed
16    necessary by the Director by rule.
17    The Director shall prepare templates that comply with the
18notice requirements of this subsection. The template shall
19include the information required by this subsection in 2
20languages, including English and one additional language
21determined by the Director based on the population of this
22State that speaks the language and any other factor that the
23Director deems relevant.
24(Source: P.A. 103-201, eff. 1-1-24.)
 
25    (820 ILCS 105/12.1 new)

 

 

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1    Sec. 12.1. Civil actions brought by an interested party.
2    (a) Upon a reasonable belief that an employer covered by
3this Act is in violation of any provision of this Act, an
4interested party may initiate a civil action in the county
5where the alleged offenses occurred or where any party to the
6action resides, asserting that a violation of this Act has
7occurred, as follows:
8        (1) The interested party submits to the Department of
9    Labor a complaint describing the violation and naming the
10    employer who violated this Act.
11        (2) The Department sends notice of complaint to the
12    named party alleged to have violated this Act and the
13    interested party. The named parties may contest the
14    alleged violation.
15        (3) A named party may contest the alleged violation
16    within 30 days after the receipt of the notice of
17    complaint. If a named party does not respond within 30 day
18    after the receipt of the notice of complaint, the
19    Department shall issue a notice of the right to sue to the
20    interested party in accordance with the requirements
21    described in paragraph (4).
22        (4) The Department shall issue a notice of the right
23    to sue to the interested party if one or more of the
24    following has occurred:
25            (A) the Director has determined that the
26        allegation is unjustified or that the Department does

 

 

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1        not have jurisdiction over the matter or the parties;
2        or
3            (B) the Director has determined that the
4        allegation is justified or has not made a
5        determination, and either has decided not to exercise
6        jurisdiction over the matter or has concluded
7        administrative enforcement of the matter.
8    (b) If, within 180 days after service of the notice of
9complaint to the named party and the interested party, the
10Department has not (i) resolved a contest to the alleged
11violation as described in paragraph (3) of subsection (a) or
12(ii) issued a notice of the right to sue to the interested
13party as described in paragraph (4) of subsection (a), the
14interested party may initiate a civil action for penalties.
15The limitations period for the interested party to bring an
16action for the alleged violation of the Act shall be tolled for
17the 180-day period and for the period of any mutually agreed
18extensions. At the end of the 180-day period, or any mutually
19agreed extensions, the Department shall issue a right to sue
20letter to the interested party.
21    (c) Any claim or action filed under this Section must be
22made within 3 years of the alleged conduct resulting in the
23complaint plus any period for which the limitations period has
24been tolled.
25    (d) In an action brought under this Section, an interested
26party may recover against the covered entity any statutory

 

 

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1penalties and injunctive relief. An interested party who
2prevails in a civil action shall receive 10% of any statutory
3penalties assessed, plus any attorneys' fees and expenses in
4bringing the action. The remaining 90% of any statutory
5penalties assessed shall be deposited into the Department's
6Wage Theft Enforcement Fund.
 
7    Section 95. The Illinois Wage Payment and Collection Act
8is amended by changing Section 4.1 as follows:
 
9    (820 ILCS 115/4.1)
10    Sec. 4.1. Gratuities.
11    (a) Gratuities to employees are the property of the
12employees, and employers shall not keep gratuities. Failure to
13pay gratuities owed to an employee more than 13 days after the
14end of the pay period in which such gratuities were earned
15constitutes a violation of this Act.
16    (a-5) Any service charge imposed by an employer on a
17customer shall be a gratuity as described in subsection (a)
18and is the property of the employees. An employer who imposes a
19bona fide service charge on a customer shall explicitly and
20conspicuously disclose to the consumer that all funds
21generated from the service charge are directly given to the
22employees in the form of a gratuity.
23    (b) No employer shall withhold This Section does not
24prohibit an employer from withholding from gratuities paid by

 

 

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1credit card a proportionate amount of any credit card
2processing fees that the employer must pay in connection with
3the transaction, provided that the amount withheld does not
4exceed the proportion of the amount of the tip to the amount of
5the overall bill, regardless of whether the overall bill was
6paid using a credit card. This Section does not prohibit tip
7pooling as permitted by law. This Section does not affect an
8employer's entitlement to an allowance for gratuities to the
9extent permitted under subsection (c) of Section 4 of the
10Minimum Wage Law.
11(Source: P.A. 101-509, eff. 1-1-20.)
 
12    Section 999. Effective date. This Act takes effect upon
13becoming law.".