Labor Committee
Adopted in House Comm. on Mar 07, 2007
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1 | AMENDMENT TO HOUSE BILL 773
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2 | AMENDMENT NO. ______. Amend House Bill 773 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Prevailing Wage Act is amended by changing | ||||||
5 | Sections 2, 3, 4, 6, 9, 11, and 11b as follows:
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6 | (820 ILCS 130/2) (from Ch. 48, par. 39s-2)
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7 | Sec. 2. This Act applies to the wages of laborers, | ||||||
8 | mechanics and
other workers employed in any public works, as | ||||||
9 | hereinafter defined, by
any public body and to anyone under | ||||||
10 | contracts for public works.
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11 | As used in this Act, unless the context indicates | ||||||
12 | otherwise:
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13 | "Public works" means all fixed works constructed by
any | ||||||
14 | public body, other than work done directly by any public | ||||||
15 | utility
company, whether or not done under public supervision | ||||||
16 | or direction,
or paid for wholly or in part out of public |
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1 | funds. "Public works" as
defined herein includes all projects | ||||||
2 | financed in whole
or in part with bonds issued under the | ||||||
3 | Industrial Project Revenue Bond
Act (Article 11, Division 74 of | ||||||
4 | the Illinois Municipal Code), the Economic Development Area Tax | ||||||
5 | Increment Allocation Act, the Industrial
Building Revenue Bond | ||||||
6 | Act, the Illinois Finance Authority Act,
the Illinois Sports | ||||||
7 | Facilities Authority Act, or the Build Illinois Bond Act,
and | ||||||
8 | all projects financed in whole or in part with loans or other | ||||||
9 | funds made
available pursuant to the Build Illinois Act. | ||||||
10 | "Public works" also includes
all projects financed in whole or | ||||||
11 | in part with funds from the Fund for
Illinois' Future under | ||||||
12 | Section 6z-47 of the State Finance Act, funds for school
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13 | construction under Section 5 of the General Obligation Bond | ||||||
14 | Act, funds
authorized under Section 3 of the School | ||||||
15 | Construction Bond Act, funds for
school infrastructure under | ||||||
16 | Section 6z-45 of the State Finance Act, and funds
for | ||||||
17 | transportation purposes under Section 4 of the General | ||||||
18 | Obligation Bond
Act. "Public works" also includes all projects | ||||||
19 | financed in whole or in part
with funds from the Department of | ||||||
20 | Commerce and Economic Opportunity under the Illinois Renewable | ||||||
21 | Fuels Development Program
Act for which there is no project | ||||||
22 | labor agreement. "Public works" also includes all projects at | ||||||
23 | leased facility property used for airport purposes under | ||||||
24 | Section 35 of the Local Government Facility Lease Act and all | ||||||
25 | projects financed in whole or in part with loans or other funds | ||||||
26 | made available pursuant to the Illinois Enterprise Zone Act .
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1 | "Construction" means all work on public works involving | ||||||
2 | laborers,
workers or mechanics.
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3 | "Locality" means the county where the physical work upon | ||||||
4 | public works
is performed, except (1) that if there is not | ||||||
5 | available in the county a
sufficient number of competent | ||||||
6 | skilled laborers, workers and mechanics
to construct the public | ||||||
7 | works efficiently and properly, "locality"
includes any other | ||||||
8 | county nearest the one in which the work or
construction is to | ||||||
9 | be performed and from which such persons may be
obtained in | ||||||
10 | sufficient numbers to perform the work and (2) that, with
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11 | respect to contracts for highway work with the Department of
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12 | Transportation of this State, "locality" may at the discretion | ||||||
13 | of the
Secretary of the Department of Transportation be | ||||||
14 | construed to include
two or more adjacent counties from which | ||||||
15 | workers may be accessible for
work on such construction.
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16 | "Public body" means the State or any officer, board or | ||||||
17 | commission of
the State or any political subdivision or | ||||||
18 | department thereof, or any
institution supported in whole or in | ||||||
19 | part by public funds,
and includes every county, city, town,
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20 | village, township, school district, irrigation, utility, | ||||||
21 | reclamation
improvement or other district and every other | ||||||
22 | political subdivision,
district or municipality of the state | ||||||
23 | whether such political
subdivision, municipality or district | ||||||
24 | operates under a special charter
or not.
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25 | The terms "general prevailing rate of hourly wages", | ||||||
26 | "general
prevailing rate of wages" or "prevailing rate of |
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| |||||||
1 | wages" when used in
this Act mean the hourly cash wages plus | ||||||
2 | fringe benefits for training and
apprenticeship programs | ||||||
3 | approved by the U.S. Department of Labor, Bureau of
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4 | Apprenticeship and Training, health and welfare, insurance, | ||||||
5 | vacations and
pensions paid generally, in the
locality in which | ||||||
6 | the work is being performed, to employees engaged in
work of a | ||||||
7 | similar character on public works.
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8 | "Contractor" or "subcontractor" means any person or entity | ||||||
9 | who undertakes to, offers to undertake to, purports to have the | ||||||
10 | capacity to undertake to, submits a bid to, or does himself or | ||||||
11 | herself or by or through others, engage in a public works.
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12 | (Source: P.A. 93-15, eff. 6-11-03; 93-16, eff. 1-1-04; 93-205, | ||||||
13 | eff. 1-1-04; 94-750, eff. 5-9-06.)
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14 | (820 ILCS 130/3) (from Ch. 48, par. 39s-3)
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15 | Sec. 3. Not less than the general prevailing rate of hourly | ||||||
16 | wages for
work of a similar character on public works in the | ||||||
17 | locality in which the
work is performed, and not less than the | ||||||
18 | general prevailing rate of
hourly wages for legal holiday and | ||||||
19 | overtime work, shall be paid to all
laborers, workers and | ||||||
20 | mechanics employed by or on behalf of any public
body engaged | ||||||
21 | in the construction of public works.
Laborers
Only such | ||||||
22 | laborers , workers and mechanics as are
directly employed by | ||||||
23 | contractors or subcontractors in actual
construction work on | ||||||
24 | the site of the building or construction job shall be deemed to | ||||||
25 | be employed upon public works. The site of the building or |
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1 | construction job shall also include a facility dedicated to the | ||||||
2 | performance of the contract or project and located in such | ||||||
3 | proximity to the actual construction location that would be | ||||||
4 | reasonable to include them. Laborers , and
laborers, workers and | ||||||
5 | mechanics engaged in the transportation of
materials and | ||||||
6 | equipment to or from the site, but not including the
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7 | transportation by the sellers and suppliers or the manufacture | ||||||
8 | or
processing of materials or equipment, in the execution of | ||||||
9 | any contract
or contracts for public works with any public body | ||||||
10 | shall also be deemed to be
employed upon public works. The wage | ||||||
11 | for a tradesman performing maintenance
is equivalent to that of | ||||||
12 | a tradesman engaged in construction. All contractors and | ||||||
13 | subcontractors required to pay the prevailing wage under this | ||||||
14 | Act shall make payment of such wages in legal tender, without | ||||||
15 | any deduction for food, sleeping accommodations, | ||||||
16 | transportation, use of tools, or any other thing of any kind or | ||||||
17 | description.
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18 | (Source: P.A. 93-15, eff. 6-11-03; 93-16, eff. 1-1-04.)
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19 | (820 ILCS 130/4) (from Ch. 48, par. 39s-4)
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20 | Sec. 4. (a) The public body awarding any contract for | ||||||
21 | public works
work or
otherwise undertaking any public works, | ||||||
22 | shall ascertain the general
prevailing rate of hourly wages in | ||||||
23 | the locality in which the work is to
be performed, for each | ||||||
24 | craft or type of worker or mechanic needed to
execute the | ||||||
25 | contract, and where the public body performs the work
without |
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1 | letting a contract therefor, shall ascertain the prevailing | ||||||
2 | rate
of wages on a per hour basis in the locality . Such
, and | ||||||
3 | such public body shall
specify in the resolution or ordinance | ||||||
4 | and in the call for bids for the
contract, that the general | ||||||
5 | prevailing rate of wages in the locality for
each craft or type | ||||||
6 | of worker or mechanic needed to execute the contract
or perform | ||||||
7 | such work, also the general prevailing rate for legal holiday
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8 | and overtime work, as ascertained by the public body or by the
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9 | Department of Labor shall be paid for each craft or type of | ||||||
10 | worker
needed to execute the contract or to perform such work .
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11 | , and it | ||||||
12 | (b) It shall be
mandatory upon the contractor to whom the | ||||||
13 | contract is awarded and upon
any subcontractor under him, and | ||||||
14 | where the public body performs the
work, upon the public body, | ||||||
15 | to pay not less than the specified rates to
all laborers, | ||||||
16 | workers and mechanics employed by them in the execution of
the | ||||||
17 | contract or such work; provided, however, that if the public | ||||||
18 | body
desires that the Department of Labor ascertain the | ||||||
19 | prevailing rate of
wages, it shall notify the Department of | ||||||
20 | Labor to ascertain the general
prevailing rate of hourly wages | ||||||
21 | for work under contract, or for work
performed by a public body | ||||||
22 | without letting a contract as required in the
locality in which | ||||||
23 | the work is to be performed, for each craft or type of
worker | ||||||
24 | or mechanic needed to execute the contract or project or work | ||||||
25 | to
be performed. Upon such notification the Department of Labor | ||||||
26 | shall
ascertain such general prevailing rate of wages, and |
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1 | certify the
prevailing wage to such public body. | ||||||
2 | (c) The public body awarding the
contract shall cause to be | ||||||
3 | inserted in the project specifications and the
contract a | ||||||
4 | stipulation to the
effect that not less than the prevailing | ||||||
5 | rate of wages as found by the
public body or Department of | ||||||
6 | Labor or determined by the court on review
shall be paid to all | ||||||
7 | laborers, workers and mechanics performing work
under the | ||||||
8 | contract.
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9 | (d) When a public body or other entity covered by this Act | ||||||
10 | contracts for work with a contractor without a public bid or | ||||||
11 | project specification, such public body or other entity shall | ||||||
12 | provide the contractor with a written notice that the | ||||||
13 | prevailing wage is required to be paid on the project as a | ||||||
14 | statement on the purchase order related to the work to be done | ||||||
15 | or on a separate document. | ||||||
16 | (e) Where a complaint has been made and the Department has | ||||||
17 | determined that a violation has occurred, the Department shall | ||||||
18 | determine if proper notice under this Section 4 was given. If | ||||||
19 | proper notice was not provided to the contractor by the public | ||||||
20 | body, the Department shall order the public body to pay any | ||||||
21 | back wages, interest, penalties or fines owed by the contractor | ||||||
22 | to all laborers, mechanics and other workers who performed work | ||||||
23 | on the project. For the purposes of this subsection back wages | ||||||
24 | shall be limited to the difference between the actual amount | ||||||
25 | paid and the prevailing wages required to be paid for the | ||||||
26 | project. A contractor shall not be deemed in violation of this |
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1 | Act if proper notice pursuant to this Section 4 is not | ||||||
2 | provided. The failure to provide notice by a public body does | ||||||
3 | not diminish the right of a laborer, worker, or mechanic to the | ||||||
4 | prevailing wage rate as determined under this Act.
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5 | (f)
(b) It shall also be mandatory upon the contractor to | ||||||
6 | whom the contract is
awarded
to insert into each subcontract | ||||||
7 | and into the project specifications for each
subcontract a | ||||||
8 | written stipulation to the effect that not less than the
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9 | prevailing
rate of wages shall be paid to all laborers, | ||||||
10 | workers, and mechanics performing
work under the contract. It | ||||||
11 | shall also be mandatory upon each subcontractor to
cause to be | ||||||
12 | inserted into each lower tiered subcontract
and into the | ||||||
13 | project specifications for each lower tiered subcontract a
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14 | stipulation to the effect that not less
than the prevailing | ||||||
15 | rate of wages shall be paid to all laborers, workers, and
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16 | mechanics performing work under the contract. A contractor or | ||||||
17 | subcontractor who
fails to comply with this subsection (f)
(b) | ||||||
18 | is in violation of this Act.
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19 | (g) When a contractor has awarded work to a subcontractor | ||||||
20 | without a contract or without a contract specification, the | ||||||
21 | contractor may comply with subsection (d) by providing a | ||||||
22 | subcontractor a written statement indicating that no less than | ||||||
23 | the prevailing wage rate shall be paid to all laborers, | ||||||
24 | mechanics and other workers performing work on the project. A | ||||||
25 | contractor or subcontractor who
fails to comply with this | ||||||
26 | subsection (g) is in violation of this Act. |
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1 | (h) Where a complaint has been made and the Department has | ||||||
2 | determined that a violation has occurred, the Department shall | ||||||
3 | determine if proper notice under this Section 4 was given. If | ||||||
4 | proper notice was not provided to the subcontractor by the | ||||||
5 | contractor, the Department shall order the contractor to pay | ||||||
6 | any back wages, interest, penalties or fines owed by the | ||||||
7 | subcontractor to all laborers, mechanics and other workers who | ||||||
8 | performed work on the project. For the purposes of this | ||||||
9 | subsection back wages shall be limited to the difference | ||||||
10 | between the actual amount paid and the prevailing wages | ||||||
11 | required for the project. A subcontractor shall not be deemed | ||||||
12 | in violation of this Act if such notice is not provided. | ||||||
13 | However, if proper notice was not provided to the contractor by | ||||||
14 | the public body under subsections (a) or (b) of this Section 4, | ||||||
15 | the Department shall order the public body to pay any back | ||||||
16 | wages, interest, penalties or fines owed by the subcontractor | ||||||
17 | to all laborers, mechanics and other workers who performed work | ||||||
18 | on the project. The failure to provide notice by a public body | ||||||
19 | or contractor does not diminish the right of a laborer, worker, | ||||||
20 | or mechanic to prevailing wage rate as determined under this | ||||||
21 | Act.
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22 | (i)
(c) It shall also require in all such contractor's | ||||||
23 | bonds
that the contractor include such provision as will | ||||||
24 | guarantee the
faithful performance of such prevailing wage | ||||||
25 | clause as provided by
contract. All bid specifications shall | ||||||
26 | list the specified rates to all
laborers, workers and mechanics |
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1 | in the locality for each craft or type of
worker or mechanic | ||||||
2 | needed to execute the contract.
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3 | (j)
(d) If the Department of Labor
revises the prevailing | ||||||
4 | rate of hourly wages to be paid by the public body, the
revised | ||||||
5 | rate shall apply to such contract . The public body or the | ||||||
6 | Department of Labor shall make the revised rate of hourly wages | ||||||
7 | available to the contractor and each subcontractor. The , and | ||||||
8 | the public body shall be
responsible to notify the contractor | ||||||
9 | and each subcontractor shall notify its employees pursuant to | ||||||
10 | this Act and pay the
, of the revised
rate.
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11 |
(e) Two or more investigatory hearings under this Section | ||||||
12 | on the issue
of establishing a new prevailing wage | ||||||
13 | classification for a particular craft
or type of worker shall | ||||||
14 | be consolidated in a single hearing before the
Department. Such | ||||||
15 | consolidation shall occur whether each separate investigatory
| ||||||
16 | hearing is conducted by a public body or the Department. The | ||||||
17 | party requesting
a consolidated investigatory hearing shall | ||||||
18 | have the burden of establishing that
there is no existing | ||||||
19 | prevailing wage classification for the particular craft or
type | ||||||
20 | of worker in any of the localities under consideration.
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21 | (k) It shall be mandatory upon the contractor or | ||||||
22 | construction manager
to whom a contract for public works is | ||||||
23 | awarded to post, at a
location on the project site of the | ||||||
24 | public works that is
easily accessible to the workers engaged | ||||||
25 | on the project,
the prevailing wage rates for each craft or | ||||||
26 | type of worker
or mechanic needed to execute the contract or |
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1 | project or
work to be performed. In lieu of posting on the | ||||||
2 | project site of the public works, a contractor which has a | ||||||
3 | business location where laborers, workers and mechanics | ||||||
4 | regularly visit may: (1) post in a conspicuous location at that | ||||||
5 | business the current prevailing wage rates for each county the | ||||||
6 | contractor is performing work; or (2) provide such laborer, | ||||||
7 | worker or mechanic engaged on the public works project a | ||||||
8 | written notice indicating the prevailing wage rates for the | ||||||
9 | public works project. A failure to post or provide a prevailing | ||||||
10 | wage
rate as required by this Section is a violation of this | ||||||
11 | Act.
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12 | (l) The public body awarding any contract for a public | ||||||
13 | works or otherwise undertaking any public works shall notify | ||||||
14 | the Department of Labor in writing, on a form prescribed by the | ||||||
15 | Department of Labor, whenever a contract subject to the | ||||||
16 | provisions of this Act has been awarded. The notification | ||||||
17 | mentioned herein shall be filed with the Department of Labor | ||||||
18 | within 30 days after such contract is awarded or before | ||||||
19 | commencement of the public works, and shall include a list of | ||||||
20 | all first-tier subcontractors.
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21 | (Source: P.A. 92-783, eff. 8-6-02; 93-15, eff. 6-11-03; 93-16, | ||||||
22 | eff.
1-1-04; 93-38, eff. 6-1-04; revised 10-29-04.)
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23 | (820 ILCS 130/6) (from Ch. 48, par. 39s-6)
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24 | Sec. 6. Any officer, agent or representative of any public | ||||||
25 | body who
wilfully violates, or omits to comply with, any of the |
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1 | provisions of
this Act, and any contractor or subcontractor, or | ||||||
2 | agent or
representative thereof, doing public work as | ||||||
3 | aforesaid, who wilfully violates, or omits to comply with, any | ||||||
4 | of the provisions of this Act
neglects to
keep, or cause to be | ||||||
5 | kept, an accurate record of the names, occupation
and actual | ||||||
6 | wages paid to each laborer, worker and mechanic employed by
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7 | him, in connection with the public work or who refuses to allow | ||||||
8 | access
to same at any reasonable hour to any person authorized | ||||||
9 | to inspect same
under this Act, is guilty of a Class A | ||||||
10 | misdemeanor.
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11 | The Department of Labor shall inquire diligently as to any | ||||||
12 | violation
of this Act, shall institute actions for penalties | ||||||
13 | herein prescribed,
and shall enforce generally the provisions | ||||||
14 | of this Act. The Attorney
General shall prosecute such cases | ||||||
15 | upon complaint by the Department or
any interested person.
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16 | (Source: P.A. 94-488, eff. 1-1-06.)
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17 | (820 ILCS 130/9) (from Ch. 48, par. 39s-9)
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18 | Sec. 9. To effectuate the purpose and policy of this Act | ||||||
19 | each public
body shall, during the month of June of each | ||||||
20 | calendar year, investigate
and ascertain the prevailing rate of | ||||||
21 | wages as defined in this Act and
publicly post or keep | ||||||
22 | available for inspection by any interested party
in the main | ||||||
23 | office of such public body its determination of such
prevailing | ||||||
24 | rate of wage and shall promptly file, no later than July 15 of
| ||||||
25 | each year, a certified copy thereof
in the office of the |
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| |||||||
1 | Secretary of State at Springfield and the office of the
| ||||||
2 | Illinois Department of Labor.
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3 | The Department of Labor shall during the month of June of | ||||||
4 | each calendar
year, investigate and ascertain the prevailing | ||||||
5 | rate of wages for each county
in the State. If a public body | ||||||
6 | does not investigate and ascertain the
prevailing
rate of wages | ||||||
7 | during the month of June as required by the previous paragraph,
| ||||||
8 | then the prevailing rate of wages for that public body shall be | ||||||
9 | the rate
as determined by the Department under this paragraph | ||||||
10 | for the county in which
such public body is located.
| ||||||
11 | Where the Department of Labor ascertains the prevailing | ||||||
12 | rate of
wages, it is the duty of the Department of Labor within | ||||||
13 | 30 days after
receiving a notice from the public body | ||||||
14 | authorizing the proposed work,
to conduct an investigation to | ||||||
15 | ascertain the prevailing rate of wages as
defined in this Act | ||||||
16 | and such investigation shall be conducted in the
locality in | ||||||
17 | which the work is to be performed. The Department of Labor
| ||||||
18 | shall send a certified copy of its findings to the public body
| ||||||
19 | authorizing the work and keep a record of its findings | ||||||
20 | available for
inspection by any interested party in the office | ||||||
21 | of the Department of
Labor at Springfield.
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22 | The public body except for the Department of Transportation | ||||||
23 | with
respect to highway contracts shall within 30 days after | ||||||
24 | filing with the
Secretary of State, or the Department of Labor | ||||||
25 | shall within 30 days
after filing with such public body, | ||||||
26 | publish in a newspaper of general
circulation within the area |
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| |||||||
1 | that the determination is effective, a
notice of its | ||||||
2 | determination and shall promptly mail a copy of its
| ||||||
3 | determination to any employer, and to any association of | ||||||
4 | employers and
to any person or association of employees who | ||||||
5 | have filed their names and
addresses, requesting copies of any | ||||||
6 | determination stating the particular
rates and the particular | ||||||
7 | class of workers whose wages will be affected
by such rates.
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8 | At any time within 30 days after the Department of Labor | ||||||
9 | has published
on its official web site a prevailing wage | ||||||
10 | schedule, any person affected
thereby may object in writing to | ||||||
11 | the determination or such part thereof
as they may deem | ||||||
12 | objectionable by filing a written notice with the
public body | ||||||
13 | or Department of Labor, whichever has made such
determination, | ||||||
14 | stating the specified grounds of the objection. It shall
| ||||||
15 | thereafter be the duty of the public body or Department of | ||||||
16 | Labor to set
a date for a hearing on the objection after giving | ||||||
17 | written notice to the
objectors at least 10 days before the | ||||||
18 | date of the hearing and said
notice shall state the time and | ||||||
19 | place of such hearing. Such hearing by a
public body shall be | ||||||
20 | held within 45 days after the objection is filed,
and shall not | ||||||
21 | be postponed or reset for a later date except upon the
consent, | ||||||
22 | in writing, of all the objectors and the public body. If such
| ||||||
23 | hearing is not held by the public body within the time herein | ||||||
24 | specified,
the Department of Labor may, upon request of the | ||||||
25 | objectors, conduct the
hearing on behalf of the public body.
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26 | The public body or Department of Labor, whichever has made |
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| |||||||
1 | such
determination, is authorized in its discretion to hear | ||||||
2 | each timely filed written
objection . Two or more hearings under | ||||||
3 | this Section on the issue of establishing a new prevailing wage | ||||||
4 | classification for a particular craft or type of worker shall | ||||||
5 | be consolidated in a single hearing before the Department. Such | ||||||
6 | consolidation shall occur whether each separate hearing is | ||||||
7 | conducted by a public body or the Department. The party | ||||||
8 | requesting a consolidated hearing shall have the burden of | ||||||
9 | establishing that there is no existing prevailing wage | ||||||
10 | classification for the particular craft or type of worker in | ||||||
11 | any of the localities under consideration
filed separately or | ||||||
12 | consolidate for hearing any one or more
written objections | ||||||
13 | filed with them . At any
such hearing under this Section, the | ||||||
14 | public body or
Department of Labor shall introduce in evidence | ||||||
15 | the investigation it
instituted which formed the basis of its | ||||||
16 | determination, and the public
body or Department of Labor, or | ||||||
17 | any interested objectors may thereafter
introduce such | ||||||
18 | evidence as is material to the issue. Thereafter, the
public | ||||||
19 | body or Department of Labor, must rule upon the written | ||||||
20 | objection
and make such final determination as it believes the | ||||||
21 | evidence warrants,
and promptly file a certified copy of its | ||||||
22 | final determination with such
public body and the Secretary of | ||||||
23 | State, and serve a copy by personal
service or registered mail | ||||||
24 | on all parties to the proceedings. The final
determination by | ||||||
25 | the Department of Labor or a public body shall be rendered
| ||||||
26 | within 30 days after the conclusion of the hearing.
|
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| |||||||
1 | If proceedings to review judicially the final | ||||||
2 | determination of the
public body or Department of Labor are not | ||||||
3 | instituted as hereafter
provided, such determination shall be | ||||||
4 | final and binding.
| ||||||
5 | The provisions of the Administrative Review Law, and all | ||||||
6 | amendments
and modifications thereof, and the rules
adopted | ||||||
7 | pursuant thereto, shall apply to and govern all proceedings for
| ||||||
8 | the judicial review of final administrative decisions of any | ||||||
9 | public body
or the Department of Labor hereunder. The term | ||||||
10 | "administrative decision"
is defined as in Section 3-101 of the | ||||||
11 | Code of Civil Procedure.
| ||||||
12 | Appeals from all final orders and judgments entered by the | ||||||
13 | court in
review of the final administrative decision of the | ||||||
14 | public body or
Department of Labor, may be taken by any party | ||||||
15 | to the action.
| ||||||
16 | Any proceeding in any court affecting a determination of | ||||||
17 | the
Department of Labor or public body shall have priority in | ||||||
18 | hearing and
determination over all other civil proceedings | ||||||
19 | pending in said court,
except election contests.
| ||||||
20 | In all reviews or appeals under this Act, it shall be the | ||||||
21 | duty of the
Attorney General to represent the Department of | ||||||
22 | Labor, and defend its
determination. The Attorney General shall | ||||||
23 | not represent any public body,
except the State, in any such | ||||||
24 | review or appeal.
| ||||||
25 | (Source: P.A. 93-38, eff. 6-1-04 .)
|
| |||||||
| |||||||
1 | (820 ILCS 130/11) (from Ch. 48, par. 39s-11)
| ||||||
2 | Sec. 11. (a) No public works project shall be instituted | ||||||
3 | unless the
provisions of this Act have been complied with. The | ||||||
4 | provisions of this
Act shall not be applicable to Federal | ||||||
5 | construction projects which
require a prevailing wage | ||||||
6 | determination by the United States Secretary
of Labor. The | ||||||
7 | Illinois Department of Labor represented by the Attorney
| ||||||
8 | General is empowered to sue for injunctive relief against the | ||||||
9 | awarding of
any contract or the continuation of work under any | ||||||
10 | contract for public works
at a time when the prevailing wage | ||||||
11 | prerequisites have not been met. Any
contract for public works | ||||||
12 | awarded at a time when the prevailing wage prerequisites
had | ||||||
13 | not been met shall be void as against public policy and the | ||||||
14 | contractor
is prohibited from recovering any damages
for the | ||||||
15 | voiding of the contract or pursuant to the terms of the | ||||||
16 | contract.
The contractor is limited to a claim for amounts | ||||||
17 | actually paid for labor
and materials supplied to the public | ||||||
18 | body. Where objections to a determination
of the prevailing | ||||||
19 | rate of
wages or a court action relative thereto is pending, | ||||||
20 | the public body
shall not continue work on the project unless | ||||||
21 | sufficient funds are
available to pay increased wages if such | ||||||
22 | are finally determined or
unless the Department of Labor | ||||||
23 | certifies such determination of the
prevailing rate of wages as | ||||||
24 | correct.
| ||||||
25 | Any laborer, worker or mechanic employed by the contractor | ||||||
26 | or by any sub-contractor
under him who is paid for his services |
| |||||||
| |||||||
1 | in a sum less than the stipulated
rates for work done under | ||||||
2 | such contract, shall
have a right of action for whatever | ||||||
3 | difference there may be between the
amount so paid, and the | ||||||
4 | prevailing rate of wages required to be paid on the public | ||||||
5 | works project
rates provided by the contract together with
| ||||||
6 | costs and such reasonable attorney's fees as
shall be allowed | ||||||
7 | by the court. Such contractor or subcontractor shall also
be | ||||||
8 | liable to the
Department of Labor for
20% of
such underpayments | ||||||
9 | and shall be additionally liable to the laborer, worker
or | ||||||
10 | mechanic for punitive damages in the amount of
2% of the amount | ||||||
11 | of any
such penalty to the
State for underpayments for each | ||||||
12 | month following the date of payment during
which such | ||||||
13 | underpayments
remain unpaid. Where a second or subsequent | ||||||
14 | action to recover underpayments is brought against a contractor | ||||||
15 | or subcontractor and the contractor or subcontractor is found | ||||||
16 | liable for underpayments to any laborer, worker, or mechanic, | ||||||
17 | the contractor or subcontractor shall also be liable to the | ||||||
18 | Department of Labor for 50% of the underpayments payable as a | ||||||
19 | result of the second or subsequent action, and shall be | ||||||
20 | additionally liable to the laborer, worker or mechanic for | ||||||
21 | punitive damages in the amount of
for 5% of the amount of any | ||||||
22 | such penalty to the State for underpayments for each month | ||||||
23 | following the date of payment during which the underpayments | ||||||
24 | remain unpaid. The Department shall also have a right of action | ||||||
25 | on behalf
of any individual who has a right of action under | ||||||
26 | this Section. An action brought
to recover same shall be deemed |
| |||||||
| |||||||
1 | to be a suit for wages, and any and all
judgments entered | ||||||
2 | therein shall have the same force and effect as other
judgments | ||||||
3 | for wages.
At the request of any laborer, workman or mechanic
| ||||||
4 | employed by the contractor or by any subcontractor under him | ||||||
5 | who is paid
less than the prevailing wage rate required by this | ||||||
6 | Act, the Department
of Labor may take an assignment of such | ||||||
7 | wage claim in trust for the assigning
laborer, workman or | ||||||
8 | mechanic and may bring any legal action necessary to
collect | ||||||
9 | such claim, and the contractor or subcontractor shall be | ||||||
10 | required
to pay the costs incurred in collecting such claim.
| ||||||
11 | (b) For purposes of this subsection, the following | ||||||
12 | definitions are applicable: | ||||||
13 | "Accurate records" means the payroll records required to be | ||||||
14 | filed with the public body in charge of the project as required | ||||||
15 | by Section 5 of the Act. Accurate records shall also mean the | ||||||
16 | hourly rate paid for fringe benefits, including pension, health | ||||||
17 | and welfare, training and vacations, and a designation of | ||||||
18 | whether such fringe benefits were paid into a fund or paid | ||||||
19 | directly to the employee. | ||||||
20 | "Act" means the Prevailing Wage Act. | ||||||
21 | "Construction manager" includes, but is not limited to, the | ||||||
22 | contractor, subcontractor or anyone overseeing any project | ||||||
23 | covered by the Act for purposes of the posting requirement. | ||||||
24 | "Contract" means an agreement either written or oral or | ||||||
25 | otherwise as agreed to between the parties. | ||||||
26 | "Decision" means that the Department has determined that a |
| |||||||
| |||||||
1 | violation has occurred that warrants the Director or the | ||||||
2 | Director's designee to issue a notice of violation to a | ||||||
3 | contractor or subcontractor. Each specific finding listed in | ||||||
4 | the notice of violation is a separate "Decision" that the Act | ||||||
5 | has been violated. | ||||||
6 | "Director" means the Director of the Illinois Department of | ||||||
7 | Labor or, at the Director's discretion, the Director's | ||||||
8 | designee, deputy or agent. | ||||||
9 | "Employee" means laborers, mechanics and other workers | ||||||
10 | employed in any public works, as defined and covered under the | ||||||
11 | Act, by anyone under contracts for public works. | ||||||
12 | "Employer" means a contractor or subcontractor, or both, | ||||||
13 | who performs public works projects subject to the Act. | ||||||
14 | "Notice of second violation" is a notice issued by the | ||||||
15 | Department advising a contractor or subcontractor that a | ||||||
16 | violation as defined in this subsection has occurred within | ||||||
17 | five years from the date of the notice of first violation. | ||||||
18 | "Notice of violation" means the formal written notice to a | ||||||
19 | contractor or subcontractor that the Department has made a | ||||||
20 | decision that the contractor or subcontractor has violated the | ||||||
21 | Act. | ||||||
22 | "Prevailing hourly rate of wages" means the hourly cash | ||||||
23 | wages plus fringe benefits for health and welfare, insurance, | ||||||
24 | training, vacations and pensions paid most frequently | ||||||
25 | (numerically most occurring), in the county in which the public | ||||||
26 | works is performed, to employees engaged on public works, as |
| |||||||
| |||||||
1 | determined by the public body awarding the contract or the most | ||||||
2 | recent revision as determined by the Department of Labor | ||||||
3 | effective prior to the date when the contract was let for bids | ||||||
4 | or, if not let for bids, when executed; and all revisions by | ||||||
5 | the Illinois Department of Labor when effected. | ||||||
6 | "Violation" means a written decision by the Department that | ||||||
7 | a contractor or subcontractor has: failed or refused to pay the | ||||||
8 | prevailing wage to one or more laborers, workers, or mechanics | ||||||
9 | under a single contract or subcontract as required by Section 3 | ||||||
10 | of this Act; failed to keep accurate records as required by | ||||||
11 | this Act; failed to produce to the Department accurate records | ||||||
12 | or records not in compliance with the provisions of this Act; | ||||||
13 | refused to submit records to the Department in response to a | ||||||
14 | subpoena issued in accordance with this Act; refused to comply | ||||||
15 | with the certified payroll provision of Section 5 of this Act; | ||||||
16 | refused the Department access, at any reasonable hour or at any | ||||||
17 | location designated by the Department, to inspect the | ||||||
18 | contractor's or subcontractor's certified records and other | ||||||
19 | records as required by the Act; failed to insert into each | ||||||
20 | subcontract or lower tiered subcontract and into the project | ||||||
21 | specifications for each subcontract or lower tiered | ||||||
22 | subcontract a written stipulation that not less than the | ||||||
23 | prevailing rate of wages be paid as required by Section 4 of | ||||||
24 | this Act; where a written contract or contract specification | ||||||
25 | was not present, the contractor failed to provide written | ||||||
26 | notice that the prevailing wage was required to be paid on the |
| |||||||
| |||||||
1 | project as required under this Act or the contractor failed to | ||||||
2 | obtain a bond that guarantees the faithful performance of the | ||||||
3 | prevailing wage clause in the contract. "Violation" also means | ||||||
4 | a written decision by the Department that a contractor or | ||||||
5 | construction manager failed to post or provide the prevailing | ||||||
6 | wage rates as required by Section 4 of this Act. | ||||||
7 | After receipt of a complaint or on the Department's | ||||||
8 | initiative, the Director shall review the investigative file to | ||||||
9 | determine whether there has been a violation or violations of | ||||||
10 | which the contractor or subcontractor must be given notice. All | ||||||
11 | information and observations made during an audit, | ||||||
12 | investigation or survey shall be considered and shall | ||||||
13 | constitute the basis for the Department's decision that the Act | ||||||
14 | has been violated and that a notice of violation shall be | ||||||
15 | issued. The notice of violation shall identify the specific | ||||||
16 | violations of the Act. | ||||||
17 | The notice of violation shall state the amount of monies | ||||||
18 | estimated due by the Department to be in controversy based on | ||||||
19 | reasons contained in the investigation file. | ||||||
20 | In making a decision that a contractor or subcontractor has | ||||||
21 | failed to allow the Director access to accurate payroll | ||||||
22 | records, the Director shall rely on the information contained | ||||||
23 | in the investigative file, the certified payroll records filed | ||||||
24 | with the public body in charge of the project or any other | ||||||
25 | information and shall assess a separate violation for each day | ||||||
26 | worked by each worker on the subject project. Each decision of |
| |||||||
| |||||||
1 | a separate violation under Section 5 of the Act shall be listed | ||||||
2 | in the notice of violation. | ||||||
3 | In deciding that the Act has been violated and that the | ||||||
4 | issuance of a notice of violation is required, the Director | ||||||
5 | shall base the decision on one or any combination of the | ||||||
6 | following reasons: | ||||||
7 | (1) The severity of the violations. The Director will | ||||||
8 | consider the following: | ||||||
9 | (i) The amount of wages that are determined to be | ||||||
10 | underpaid pursuant to the Act; and | ||||||
11 | (ii) Whether the activity or conduct complained of | ||||||
12 | violates the requirements of the statute and was not | ||||||
13 | merely a technical, non-substantive error. Examples of | ||||||
14 | a technical error include, but are not limited to, a | ||||||
15 | mathematical error, bookkeeping error, transposition | ||||||
16 | of numbers, or computer or programming error.
| ||||||
17 | (2) The nature and duration of the present violations | ||||||
18 | as well as prior history of the contractor or the | ||||||
19 | subcontractor related to the Act. The prior history | ||||||
20 | considered cannot exceed 7 years before the date of the | ||||||
21 | second notice of violation. | ||||||
22 | (3) Whether the contractor or subcontractor filed | ||||||
23 | certified payroll records with the public body in charge of | ||||||
24 | the project; whether the contractor or subcontractor has | ||||||
25 | kept the payroll records and accurate records for 3 years; | ||||||
26 | whether the contractor or subcontractor produced certified |
| |||||||
| |||||||
1 | payroll records in accordance with Section 5 of the Act. | ||||||
2 | (4) Whether the contractor or subcontractor has | ||||||
3 | violated any other provision of the Act.
| ||||||
4 | The notices of the first and second violations shall be | ||||||
5 | sent by the Department by certified mail, deposited in the | ||||||
6 | United States mail, postage prepaid, addressed to the last | ||||||
7 | known address of the persons, partnerships, associations, or | ||||||
8 | corporations involved. Said notices shall contain a reference | ||||||
9 | to the specific Sections of the Act alleged to have been | ||||||
10 | violated; identify the particular public works project | ||||||
11 | involved; the conduct complained of; an identification as to | ||||||
12 | first or second notice and a statement of remedies available to | ||||||
13 | the contractor or subcontractor and Department.
| ||||||
14 | (c) The Director of the Department of Labor shall publish | ||||||
15 | in the
Illinois Register no less often than once each calendar | ||||||
16 | quarter a list of
contractors or subcontractors found to have | ||||||
17 | disregarded their obligations
to employees under this Act. The | ||||||
18 | Department of Labor shall determine the
contractors or | ||||||
19 | subcontractors who, on 2 separate occasions within 5 years, | ||||||
20 | have been
determined to have violated the provisions of this | ||||||
21 | Act. Upon such determinations the Department shall notify the | ||||||
22 | violating
contractor or subcontractor. Such contractor or | ||||||
23 | subcontractor shall then
have 10 working days to request a | ||||||
24 | hearing by the Department on the alleged
violations. Failure to | ||||||
25 | respond within the 10 working day period shall
result in | ||||||
26 | automatic and immediate placement and publication on the list.
|
| |||||||
| |||||||
1 | If the contractor or subcontractor requests a hearing within | ||||||
2 | the 10 working
day period, the Director shall set a hearing on | ||||||
3 | the alleged violations.
Such hearing shall take place no later | ||||||
4 | than 45 calendar days after the
receipt by the Department of | ||||||
5 | Labor of the request for a hearing.
The Department of Labor is | ||||||
6 | empowered to promulgate, adopt, amend and rescind
rules and | ||||||
7 | regulations to govern the hearing procedure. No contract shall
| ||||||
8 | be awarded to a contractor or subcontractor appearing on the | ||||||
9 | list, or to
any firm, corporation, partnership or association | ||||||
10 | in which such contractor
or subcontractor has an interest until | ||||||
11 | 4 years have elapsed from the date
of publication of the list | ||||||
12 | containing the name of such contractor or
subcontractor.
| ||||||
13 | (Source: P.A. 94-488, eff. 1-1-06.)
| ||||||
14 | (820 ILCS 130/11b)
| ||||||
15 | Sec. 11b. Discharge or discipline of "whistle blowers" | ||||||
16 | prohibited.
| ||||||
17 | (a) No person shall discharge, discipline, or in any other | ||||||
18 | way discriminate
against, or cause to be discharged, | ||||||
19 | disciplined, or discriminated against, any
employee or
any
| ||||||
20 | authorized representative of employees by reason of the fact | ||||||
21 | that the employee
or representative has filed, instituted, or | ||||||
22 | caused to be filed or instituted
any proceeding under this Act, | ||||||
23 | or has testified or is about to testify
in any proceeding | ||||||
24 | resulting from the administration or enforcement of
this Act, | ||||||
25 | or offers any evidence of any violation of this Act.
|
| |||||||
| |||||||
1 | (b) Any employee or a representative of employees who | ||||||
2 | believes that he has
been discharged, disciplined, or otherwise | ||||||
3 | discriminated against by any person
in violation
of subsection | ||||||
4 | (a) of this Section may, within 180
30 days after the alleged
| ||||||
5 | violation occurs, apply to the Director of Labor for a
review | ||||||
6 | of the discharge, discipline, or alleged discrimination. A copy | ||||||
7 | of the
application
shall be sent to the person who allegedly | ||||||
8 | committed the violation, who
shall be the respondent. Upon | ||||||
9 | receipt of
an application, the Director
shall cause such | ||||||
10 | investigation to be made as he or she deems appropriate.
The | ||||||
11 | investigation shall provide an opportunity for a public hearing | ||||||
12 | at
the request of any party to the review to enable the parties | ||||||
13 | to present
information relating to the alleged violation. The | ||||||
14 | parties shall be given
written notice of the time and place of | ||||||
15 | the hearing at least 30
5 days before
the hearing. Upon | ||||||
16 | receiving the report of the investigation, the Director
shall | ||||||
17 | make findings of fact. If the Director finds that a violation | ||||||
18 | did occur,
he or she shall issue a decision incorporating his | ||||||
19 | or her
findings and
requiring the party committing the | ||||||
20 | violation to take such affirmative action
to abate the | ||||||
21 | violation as the Director deems appropriate, including, but
not | ||||||
22 | limited to, the rehiring or reinstatement of the employee or | ||||||
23 | representative
of employees to his or her former position and | ||||||
24 | compensating him or her for the
time he or she was unemployed. | ||||||
25 | The party committing the violation shall also be liable to the | ||||||
26 | Department of Labor for a penalty of $5,000 for each violation |
| |||||||
| |||||||
1 | of this Section. If the Director finds that there was no
| ||||||
2 | violation, he
or she
shall issue an order denying the | ||||||
3 | application. An order issued by the
Director under this Section | ||||||
4 | shall be subject to
judicial review under the Administrative | ||||||
5 | Review Law.
| ||||||
6 | (c) The Director shall adopt rules implementing this | ||||||
7 | Section in
accordance
with the Illinois Administrative | ||||||
8 | Procedure Act.
| ||||||
9 | (Source: P.A. 94-488, eff. 1-1-06.)
| ||||||
10 | (820 ILCS 130/11a rep.)
| ||||||
11 | Section 10. The Prevailing Wage Act is amended by repealing | ||||||
12 | Section 11a.".
|