SB1916 97TH GENERAL ASSEMBLY

LRB097 09927 AEK 50091 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB1916

Introduced 2/10/2011, by Sen. Donne E. Trotter

SYNOPSIS AS INTRODUCED:

820 ILCS 105/4a

from Ch. 48, par. 1004a

Amends the Minimum Wage Law. Provides that no certified nursing assistant shall be required to work mandated overtime except in cases of an unforeseen emergent circumstance when such overtime is required only as a last resort, and only 4 additional hours in such cases. Provides that when a certified nursing assistant is mandated to work up to 12 consecutive hours, the certified nursing assistant must be allowed at least 8 consecutive hours of off-duty time immediately following the completion of such a shift. Provides that no employer shall discipline, discharge, or take any other adverse action against a certified nursing assistant solely because the certified nursing assistant refused to work mandated overtime as prohibited.

A BILL FOR

AN ACT concerning employment.

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

Section 5. The Minimum Wage Law is amended by changing Section 4a as follows:

(820 ILCS 105/4a) (from Ch. 48, par. 1004a)

Sec. 4a. (1) Except as otherwise provided in this Section, no employer shall employ any of his employees for a workweek of more than 40 hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than 1 1/2 times the regular rate at which he is employed.

(2) The provisions of subsection (1) of this Section are not applicable to:

A. Any salesman or mechanic primarily engaged in selling or servicing automobiles, trucks or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers.

B. Any salesman primarily engaged in selling trailers, boats, or aircraft, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling trailers, boats, or aircraft to ultimate purchasers.

C. Any employer of agricultural labor, with respect to such agricultural employment.

D. Any employee of a governmental body excluded from the definition of "employee" under paragraph (e)(2)(C) of Section 3 of the Federal Fair Labor Standards Act of 1938.

E. Any employee employed in a bona fide executive, administrative or professional capacity, including any radio or television announcer, news editor, or chief engineer, as defined by or covered by the Federal Fair Labor Standards Act of 1938 and the rules adopted under that Act, as both exist on March 30, 2003, but compensated at the amount of salary specified in subsections (a) and (b) of Section 541.600 of Title 29 of the Code of Federal Regulations as proposed in the Federal Register on March 31, 2003 or a greater amount of salary as may be adopted by the United States Department of Labor. For bona fide executive, administrative, and professional employees of not-for-profit corporations, the Director may, by regulation, adopt a weekly wage rate standard lower than that provided for executive, administrative, and professional employees covered under the Fair Labor Standards Act of 1938, as now or hereafter amended.

F. Any commissioned employee as described in paragraph (i) of Section 7 of the Federal Fair Labor Standards Act of 1938 and rules and regulations promulgated thereunder, as now or hereafter amended.

G. Any employment of an employee in the stead of another employee of the same employer pursuant to a worktime exchange agreement between employees.

H. Any employee of a not-for-profit educational or residential child care institution who (a) on a daily basis is directly involved in educating or caring for children who (1) are orphans, foster children, abused, neglected or abandoned children, or are otherwise homeless children and (2) reside in residential facilities of the institution and (b) is compensated at an annual rate of not less than $13,000 or, if the employee resides in such facilities and receives without cost board and lodging from such institution, not less than $10,000.

I. Any employee employed as a crew member of any uninspected towing vessel, as defined by Section 2101(40) of Title 46 of the United States Code, operating in any navigable waters in or along the boundaries of the State of Illinois.

(3) Any employer may employ any employee for a period or periods of not more than 10 hours in the aggregate in any workweek in excess of the maximum hours specified in subsection (1) of this Section without paying the compensation for overtime employment prescribed in subsection (1) if during that period or periods the employee is receiving remedial education that:

(a) is provided to employees who lack a high school diploma or educational attainment at the eighth grade level;

(b) is designed to provide reading and other basic skills at an eighth grade level or below; and

(c) does not include job specific training.

(4) A governmental body is not in violation of subsection (1) if the governmental body provides compensatory time pursuant to paragraph (o) of Section 7 of the Federal Fair Labor Standards Act of 1938, as now or hereafter amended, or is engaged in fire protection or law enforcement activities and meets the requirements of paragraph (k) of Section 7 or paragraph (b)(20) of Section 13 of the Federal Fair Labor Standards Act of 1938, as now or hereafter amended.

(5) Mandated overtime prohibited for certified nursing assistants.

(a) No certified nursing assistant shall be required to work mandated overtime except in cases of an unforeseen emergent circumstance when such overtime is required only as a last resort. Mandated overtime in the case of an unforeseen emergent circumstance shall not exceed 4 hours beyond a predetermined work shift agreed to by the employer and the certified nursing assistant.

(b) When a certified nursing assistant is mandated to work up to 12 consecutive hours, the certified nursing assistant must be allowed at least 8 consecutive hours of off-duty time immediately following the completion of such a shift.

(c) No employer shall discipline, discharge, or take any other adverse action against a certified nursing assistant solely because the certified nursing assistant refused to work mandated overtime as prohibited under this subsection (5).

(d) As used in this subsection (5):

"Certified nurse assistant" means an individual certified as defined in Section 3-206 of the Nursing Home Care Act or Section 3-206 of the MR/DD Community Care Act.

"Mandated overtime" means work that is required by the employer in excess of an agreed-to, predetermined work shift. Time spent by certified nursing assistants required to be available as a condition of specialized units, such as surgical nursing services, shall not be counted or considered in calculating the amount of time worked for the purpose of applying the prohibition against mandated overtime under this subsection (5).

"Unforeseen emergent circumstance" means any declared national, State, or municipal disaster, other catastrophic event, or any implementation of a hospital or nursing home's disaster plan, that will substantially affect or increase the need for health care services. An "unforeseen emergent circumstance" does not include situations in which the employer fails to have enough staff to meet the usual and reasonably predictable needs of its patients or residents.

(Source: P.A. 92-623, eff. 7-11-02; 93-672, eff. 4-2-04.)