Rep. Dan Reitz
Filed: 3/29/2004
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1 | AMENDMENT TO HOUSE BILL 4883
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2 | AMENDMENT NO. ______. Amend House Bill 4883 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 1. Short title. This Act may be cited as the | ||||||
5 | Truth in Employment
Act.
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6 | Section 3. Purpose. This Act is intended to address the | ||||||
7 | practice of misclassifying employees as independent | ||||||
8 | contractors. | ||||||
9 | Section 5. Definition. As used in this Act, "contractor" | ||||||
10 | means any person
who, in any capacity other than as the | ||||||
11 | employee of another for wages as the
sole
compensation, | ||||||
12 | undertakes to construct, alter, repair, move, wreck, or | ||||||
13 | demolish
any fixture or structure. "Contractor" includes a | ||||||
14 | subcontractor, but does not
include a person who furnishes only | ||||||
15 | materials or supplies.
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16 | Section 10. Filing by contractors. | ||||||
17 | (a) A contractor for whom a person is performing work and | ||||||
18 | is classified as an independent contractor with respect to that | ||||||
19 | work must file with the Department of Revenue a statement | ||||||
20 | regarding that person, together with a $5 filing fee. The | ||||||
21 | Department of Revenue shall adopt rules concerning the form, | ||||||
22 | contents, and filing of the statement. The statement shall |
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1 | include: the name and address of the contractor and the person | ||||||
2 | performing the work; the name and address of the general | ||||||
3 | contractor (if the general contractor is not the contractor for | ||||||
4 | whom the person is performing the work); and any other | ||||||
5 | information required by the Department of Revenue. A separate | ||||||
6 | statement shall be filed by the contractor for each calendar | ||||||
7 | year during which the worker performs work for the contractor. | ||||||
8 | The statement shall be filed no later than the first date of | ||||||
9 | the calendar year on which the worker performs work for the | ||||||
10 | contractor. | ||||||
11 | (b) A contractor that is required to file a statement under | ||||||
12 | subsection (a) and does not file the statement as required | ||||||
13 | under subsection (a) shall pay a $10 penalty in addition to the | ||||||
14 | $5 filing fee. | ||||||
15 | Section 15. Notice. | ||||||
16 | (a) The Department of Revenue, the Department of Employment | ||||||
17 | Security, and the Industrial Commission shall post a summary of | ||||||
18 | the requirements of this Act on their web sites. | ||||||
19 | (b) The Department of Revenue shall post a summary of the | ||||||
20 | requirements of this Act on bulletin boards in each office of | ||||||
21 | the Department. | ||||||
22 | (c) A contractor for whom one or more persons classified as | ||||||
23 | independent contractors are performing work shall post and keep | ||||||
24 | posted, in conspicuous places on each job site where those | ||||||
25 | persons work and in each of its offices, a notice, prepared by | ||||||
26 | the Department of Revenue, summarizing the requirements of this | ||||||
27 | Act. The Department of Revenue shall furnish copies of | ||||||
28 | summaries to contractors upon request without charge. | ||||||
29 | Section 20. Investigations. | ||||||
30 | (a) The Department of Revenue shall commence an | ||||||
31 | investigation if it finds, based on statements filed under this | ||||||
32 | Act or other information supplied to the Department or |
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1 | otherwise obtained by the Department, that there is reason to | ||||||
2 | suspect that a contractor has misclassified one or more | ||||||
3 | employees as independent contractors. | ||||||
4 | (b) The Department of Revenue shall hire as many | ||||||
5 | investigators as may be necessary to carry out the purposes of | ||||||
6 | this Act. | ||||||
7 | Section 25. Misclassification of employees as independent | ||||||
8 | contractors. | ||||||
9 | (a) If a contractor is a successful
bidder for a | ||||||
10 | construction
project and knowingly or intentionally | ||||||
11 | misclassifies one or more of its employees as
independent | ||||||
12 | contractors, the contractor is liable to an unsuccessful | ||||||
13 | bidder, or
an entity contracting with an unsuccessful bidder | ||||||
14 | (including, but not limited
to, a labor organization), for | ||||||
15 | damages suffered by the unsuccessful bidder or
entity as a | ||||||
16 | result of the unsuccessful bidder's competitive bid for the
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17 | construction project not being accepted due to the successful | ||||||
18 | bidder's
knowing or intentional misclassification of its | ||||||
19 | employees as independent contractors.
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20 | (b) If, upon completion of an investigation commenced | ||||||
21 | pursuant to subsection (a) of Section 20 of this Act,
the | ||||||
22 | Department of Revenue determines that a contractor has | ||||||
23 | knowingly or intentionally
misclassified one or more of its | ||||||
24 | employees as independent contractors on a construction
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25 | project:
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26 | (1) the Department may: (i) direct the employer to | ||||||
27 | cease its operations;
(ii) direct the employer to pay $250 | ||||||
28 | for each day during which the violation
continues; (iii) | ||||||
29 | direct the employer to pay $500 for each day during which a | ||||||
30 | second or subsequent violation
occurs that involves | ||||||
31 | different employees than those involved in an earlier | ||||||
32 | violation by that employer; and (iv) require the employer | ||||||
33 | to continue to pay, for 10 days, employees affected
by the |
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1 | determination;
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2 | (2) no licenses or permits of any kind may be issued to | ||||||
3 | the employer by
any State agency or officer or any unit of | ||||||
4 | local government nor may any such
licenses or permits be | ||||||
5 | renewed by any State agency or officer or any unit of
local | ||||||
6 | government until the Department determines that an
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7 | employer has cured the misclassification; and
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8 | (3) no State agency or officer may enter into any | ||||||
9 | contracts with the
employer until 2 years have elapsed | ||||||
10 | since the Department has determined that an employer has | ||||||
11 | cured the misclassification.
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12 | (c) A contractor that
knowingly or intentionally | ||||||
13 | misclassifies one or more of its employees as independent | ||||||
14 | contractors on a construction
project commits a Class C | ||||||
15 | misdemeanor. A contractor that
commits a second or subsequent | ||||||
16 | violation commits a Class 4 felony if the second or subsequent | ||||||
17 | violation involves different employees than those involved in | ||||||
18 | an earlier violation.
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19 | Section 30. Attorney General; State's Attorneys. Criminal | ||||||
20 | violations of this Act shall be prosecuted by the Attorney | ||||||
21 | General or the appropriate State's Attorney. The Department of | ||||||
22 | Revenue shall refer matters to the Attorney General and the | ||||||
23 | appropriate State's Attorney upon determining that a criminal | ||||||
24 | violation may have occurred. | ||||||
25 | Section 35. Truth in Employment Fund. The Truth in | ||||||
26 | Employment Fund is created as a special fund in the State | ||||||
27 | treasury. All fees and penalties received by the Department of | ||||||
28 | Revenue under this Act shall be deposited into the Fund. Moneys | ||||||
29 | in the Fund shall be used, subject to appropriation by the | ||||||
30 | General Assembly, by the Department of Revenue for | ||||||
31 | administration, investigation, and other expenses incurred in | ||||||
32 | carrying out its powers and duties under this Act. Any moneys |
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1 | in the Fund at the end of a fiscal year in excess of a | ||||||
2 | $1,000,000 reserve shall be transferred to the General Revenue | ||||||
3 | Fund. | ||||||
4 | Section 40. Rulemaking. In addition to any rulemaking | ||||||
5 | required by any other provision of this Act, the Department of | ||||||
6 | Revenue may adopt reasonable rules to implement and administer | ||||||
7 | this Act. | ||||||
8 | Section 45. Judicial review. A final administrative | ||||||
9 | decision
of the Department of Revenue under this Act is subject | ||||||
10 | to judicial review under the Administrative Review Law.
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11 | Section 50. No waivers. | ||||||
12 | (a) There shall be no waiver of any provision of this Act. | ||||||
13 | (b) It is a Class C misdemeanor for a contractor to attempt | ||||||
14 | to induce any individual to waive any provision of this Act. | ||||||
15 | Section 85. The Department of Employment Security Law of | ||||||
16 | the
Civil Administrative Code of Illinois is amended by adding | ||||||
17 | Section 1005-160 as follows: | ||||||
18 | (20 ILCS 1005/1005-160 new)
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19 | Sec. 1005-160. Misclassification of employees as | ||||||
20 | independent contractors. The Department shall cooperate with | ||||||
21 | the Department of Revenue under the Truth in Employment
Act by | ||||||
22 | providing information to the Department of Revenue concerning | ||||||
23 | any
suspected misclassification by a contractor of one or more | ||||||
24 | of its employees as independent contractors.
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25 | Section 90. The State Finance Act is amended by adding | ||||||
26 | Section
5.625 as follows:
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27 | (30 ILCS 105/5.625 new)
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1 | Sec. 5.625. The Truth in Employment Fund.
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2 | Section 95. The Workers' Compensation Act is amended by | ||||||
3 | adding Section
26.1 as follows:
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4 | (820 ILCS 305/26.1 new)
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5 | Sec. 26.1. Misclassification of employees as independent | ||||||
6 | contractors. The Commission shall cooperate with the | ||||||
7 | Department of Revenue under the Truth in Employment
Act by | ||||||
8 | providing information to the Department of Revenue concerning | ||||||
9 | any
suspected misclassification by a contractor of one or more | ||||||
10 | of its employees as independent contractors.
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11 | Section 97. Severability. The provisions of this Act are | ||||||
12 | severable under Section 1.31 of the Statute on Statutes.".
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