103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB2408

 

Introduced 2/10/2023, by Sen. Willie Preston

 

SYNOPSIS AS INTRODUCED:
 
820 ILCS 130/4  from Ch. 48, par. 39s-4
820 ILCS 130/11  from Ch. 48, par. 39s-11

    Amends the Prevailing Wage Act. Provides that any laborer, worker, or mechanic who is employed by the contractor or by any lower tier sub-contractor and is paid for services in a sum less than the prevailing wage rates for work performed on a project shall have a right of action for whatever difference there may be between the amount so paid and the prevailing rates required to be paid for work performed on the project. Makes other changes.


LRB103 26347 SPS 52708 b

 

 

A BILL FOR

 

SB2408LRB103 26347 SPS 52708 b

1    AN ACT concerning employment.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Prevailing Wage Act is amended by changing
5Sections 4 and 11 as follows:
 
6    (820 ILCS 130/4)  (from Ch. 48, par. 39s-4)
7    Sec. 4. Ascertaining prevailing wage.
8    (a) The prevailing rate of wages paid to individuals
9covered under this Act shall not be less than the rate that
10prevails for work of a similar character on public works in the
11locality in which the work is performed under collective
12bargaining agreements or understandings between employers or
13employer associations and bona fide labor organizations
14relating to each craft or type of worker or mechanic needed to
15execute the contract or perform such work, and collective
16bargaining agreements or understandings successor thereto,
17provided that said employers or members of said employer
18associations employ at least 30% of the laborers, workers, or
19mechanics in the same trade or occupation in the locality
20where the work is being performed.
21    (b) If the prevailing rates of wages and fringe benefits
22cannot reasonably and fairly be applied in any locality
23because no such agreements or understandings exist, the

 

 

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1Department of Labor shall determine the rates and fringe
2benefits for the same or most similar work in the nearest and
3most similar neighboring locality in which such agreements or
4understandings exist. The Department of Labor shall keep a
5record of its findings available for inspection by any
6interested party in the office of the Department of Labor.
7    (c) In the event it is determined, after a written
8objection is filed and hearing is held in accordance with
9Section 9 of this Act, that less than 30% of the laborers,
10workers, or mechanics in a particular trade or occupation in
11the locality where the work is performed receive a
12collectively bargained rate of wage, then the average wage
13paid to such laborers, workers, or mechanics in the same trade
14or occupation in the locality for the 12-month period
15preceding the Department of Labor's annual determination shall
16be the prevailing rate of wage.
17    (d) The public body awarding any contract for public work
18or otherwise undertaking any public works shall specify in the
19call for bids for the contract, or where the public body
20performs the work without letting the contract in a written
21instrument provided to the contractor, that the general
22prevailing rate of wages in the locality for each craft or type
23of worker or mechanic needed to execute the contract or
24perform such work, also the general prevailing rate for legal
25holiday and overtime work, as ascertained by the Department of
26Labor shall be paid for each craft or type of worker needed to

 

 

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1execute the contract or to perform such work, and it shall be
2mandatory upon the contractor to whom the contract is awarded
3and upon any subcontractor under him, and where the public
4body performs the work, upon the public body, to pay not less
5than the specified rates to all laborers, workers and
6mechanics employed by them in the execution of the contract or
7such work. Compliance with this Act is a matter of statewide
8concern, and a public body may not opt out of any provisions
9herein.
10    (e) The public body or other entity awarding the contract
11shall cause to be inserted in the project specifications and
12the contract a stipulation to the effect that not less than the
13prevailing rate of wages as found by the Department of Labor or
14determined by the court on review shall be paid to all
15laborers, workers and mechanics performing work under the
16contract.
17    (f) When a public body or other entity covered by this Act
18has awarded work to a contractor without a public bid,
19contract or project specification, such public body or other
20entity shall comply with subsection (e) by providing the
21contractor with written notice on the purchase order related
22to the work to be done or on a separate document indicating
23that not less than the prevailing rate of wages ascertained by
24the Department of Labor or determined by the court on review
25shall be paid to all laborers, workers, and mechanics
26performing work on the project.

 

 

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1    (g) Where a complaint is made and the Department of Labor
2determines that a violation occurred, the Department of Labor
3shall determine if proper written notice under this Section 4
4was given. If proper written notice was not provided to the
5contractor by the public body or other entity, the Department
6of Labor shall order the public body or other entity to pay any
7interest, penalties or fines that would have been owed by the
8contractor if proper written notice were provided. The failure
9by a public body or other entity to provide written notice does
10not relieve the contractor of the duty to comply with the
11prevailing wage rate, nor of the obligation to pay any back
12wages, as determined under this Act. For the purposes of this
13subsection, back wages shall be limited to the difference
14between the actual amount paid and the prevailing rate of
15wages required to be paid for the project. The failure of a
16public body or other entity to provide written notice under
17this Section 4 does not diminish the right of a laborer,
18worker, or mechanic to the prevailing rate of wages as
19determined under this Act.
20    Any laborer, worker, or mechanic who is employed by the
21contractor or by any sub-contractor and is paid for services
22in a sum less than the prevailing wage rates for work performed
23on a project shall have a right of action for whatever
24difference there may be between (i) the amount so paid and (ii)
25the prevailing rates required to be paid for work performed on
26the project.

 

 

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1    (h) It shall also be mandatory upon the contractor to whom
2the contract is awarded to insert into each subcontract and
3into the project specifications for each subcontract a written
4stipulation to the effect that not less than the prevailing
5rate of wages shall be paid to all laborers, workers, and
6mechanics performing work under the contract. It shall also be
7mandatory upon each subcontractor to cause to be inserted into
8each lower tiered subcontract and into the project
9specifications for each lower tiered subcontract a stipulation
10to the effect that not less than the prevailing rate of wages
11shall be paid to all laborers, workers, and mechanics
12performing work under the contract. A contractor or
13subcontractor who fails to comply with this subsection is in
14violation of this Act.
15    (i) When a contractor has awarded work to a subcontractor
16without a contract or contract specification, the contractor
17shall comply with subsection (h) by providing a subcontractor
18with a written statement indicating that not less than the
19prevailing rate of wages shall be paid to all laborers,
20workers, and mechanics performing work on the project. A
21contractor or subcontractor who fails to comply with this
22subsection is in violation of this Act.
23    (j) Where a complaint is made and the Department of Labor
24determines that a violation has occurred, the Department of
25Labor shall determine if proper written notice under this
26Section 4 was given. If proper written notice was not provided

 

 

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1to the subcontractor by the contractor, the Department of
2Labor shall order the contractor to pay any interest,
3penalties, or fines that would have been owed by the
4subcontractor if proper written notice were provided. The
5failure by a contractor to provide written notice to a
6subcontractor does not relieve the subcontractor of the duty
7to comply with the prevailing wage rate, nor of the obligation
8to pay any back wages, as determined under this Act. For the
9purposes of this subsection, back wages shall be limited to
10the difference between the actual amount paid and the
11prevailing rate of wages required for the project. However, if
12proper written notice was not provided to the contractor by
13the public body or other entity under this Section 4, the
14Department of Labor shall order the public body or other
15entity to pay any interest, penalties, or fines that would
16have been owed by the subcontractor if proper written notice
17were provided. The failure by a public body or other entity to
18provide written notice does not relieve the subcontractor of
19the duty to comply with the prevailing wage rate, nor of the
20obligation to pay any back wages, as determined under this
21Act. For the purposes of this subsection, back wages shall be
22limited to the difference between the actual amount paid and
23the prevailing rate of wages required for the project. The
24failure to provide written notice by a public body, other
25entity, or contractor does not diminish the right of a
26laborer, worker, or mechanic to the prevailing rate of wages

 

 

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1as determined under this Act.
2    (k) A public body or other entity shall also require in all
3contractor's and subcontractor's bonds that the contractor or
4subcontractor include such provision as will guarantee the
5faithful performance of such prevailing wage clause as
6provided by contract or other written instrument. All bid
7specifications shall list the specified rates to all laborers,
8workers and mechanics in the locality for each craft or type of
9worker or mechanic needed to execute the contract.
10    (l) If the Department of Labor revises the prevailing rate
11of hourly wages to be paid by the public body or other entity,
12the revised rate shall apply to such contract, and the public
13body or other entity shall be responsible to notify the
14contractor and each subcontractor, of the revised rate.
15    The public body or other entity shall discharge its duty
16to notify of the revised rates by inserting a written
17stipulation in all contracts or other written instruments that
18states the prevailing rate of wages are revised by the
19Department of Labor and are available on the Department's
20official website. This shall be deemed to be proper
21notification of any rate changes under this subsection.
22    (m) Two or more investigatory hearings under this Section
23on the issue of establishing a new prevailing wage
24classification for a particular craft or type of worker shall
25be consolidated in a single hearing before the Department. The
26party requesting a consolidated investigatory hearing shall

 

 

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1have the burden of establishing that there is no existing
2prevailing wage classification for the particular craft or
3type of worker in any of the localities under consideration.
4    (n) It shall be mandatory upon the contractor or
5construction manager to whom a contract for public works is
6awarded to post, at a location on the project site of the
7public works that is easily accessible to the workers engaged
8on the project, the prevailing wage rates for each craft or
9type of worker or mechanic needed to execute the contract or
10project or work to be performed. In lieu of posting on the
11project site of the public works, a contractor which has a
12business location where laborers, workers, and mechanics
13regularly visit may: (1) post in a conspicuous location at
14that business the current prevailing wage rates for each
15county in which the contractor is performing work; or (2)
16provide such laborer, worker, or mechanic engaged on the
17public works project a written notice indicating the
18prevailing wage rates for the public works project. A failure
19to post or provide a prevailing wage rate as required by this
20Section is a violation of this Act.
21(Source: P.A. 100-1177, eff. 6-1-19.)
 
22    (820 ILCS 130/11)  (from Ch. 48, par. 39s-11)
23    Sec. 11. No public works project shall be instituted
24unless the provisions of this Act have been complied with. The
25provisions of this Act shall not be applicable to Federal

 

 

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1construction projects which require a prevailing wage
2determination by the United States Secretary of Labor. The
3Illinois Department of Labor represented by the Attorney
4General is empowered to sue for injunctive relief against the
5awarding of any contract or the continuation of work under any
6contract for public works at a time when the prevailing wage
7prerequisites have not been met. Any contract for public works
8awarded at a time when the prevailing wage prerequisites had
9not been met shall be void as against public policy and the
10contractor is prohibited from recovering any damages for the
11voiding of the contract or pursuant to the terms of the
12contract. The contractor is limited to a claim for amounts
13actually paid for labor and materials supplied to the public
14body. Where objections to a determination of the prevailing
15rate of wages or a court action relative thereto is pending,
16the public body shall not continue work on the project unless
17sufficient funds are available to pay increased wages if such
18are finally determined or unless the Department of Labor
19certifies such determination of the prevailing rate of wages
20as correct.
21    Any laborer, worker or mechanic employed by the contractor
22or by any sub-contractor under him who is paid for his services
23in a sum less than the prevailing stipulated rates for work
24done under such contract, shall have a right of action for
25whatever difference there may be between the amount so paid,
26and the rates provided by the contract together with costs and

 

 

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1such reasonable attorney's fees as shall be allowed by the
2court. Such contractor or subcontractor shall also be liable
3to the Department of Labor for 20% of such underpayments and
4shall be additionally liable to the laborer, worker or
5mechanic for punitive damages in the amount of 2% of the amount
6of any such penalty to the State for underpayments for each
7month following the date of payment during which such
8underpayments remain unpaid. Where a second or subsequent
9action to recover underpayments is brought against a
10contractor or subcontractor and the contractor or
11subcontractor is found liable for underpayments to any
12laborer, worker, or mechanic, the contractor or subcontractor
13shall also be liable to the Department of Labor for 50% of the
14underpayments payable as a result of the second or subsequent
15action, and shall be additionally liable for 5% of the amount
16of any such penalty to the State for underpayments for each
17month following the date of payment during which the
18underpayments remain unpaid. The Department shall also have a
19right of action on behalf of any individual who has a right of
20action under this Section. An action brought to recover same
21shall be deemed to be a suit for wages, and any and all
22judgments entered therein shall have the same force and effect
23as other judgments for wages. The action shall be brought
24within 5 years from the date of the failure to pay the wages or
25compensation. At the request of any laborer, workman or
26mechanic employed by the contractor or by any subcontractor

 

 

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1under him who is paid less than the prevailing wage rate
2required by this Act, the Department of Labor may take an
3assignment of such wage claim in trust for the assigning
4laborer, workman or mechanic and may bring any legal action
5necessary to collect such claim, and the contractor or
6subcontractor shall be required to pay the costs incurred in
7collecting such claim.
8(Source: P.A. 98-328, eff. 1-1-14.)