Full Text of HB2649 98th General Assembly
HB2649 98TH GENERAL ASSEMBLY |
| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014 HB2649 Introduced 2/21/2013, by Rep. Luis Arroyo SYNOPSIS AS INTRODUCED: |
| 820 ILCS 185/5 | | 820 ILCS 185/25 | | 820 ILCS 185/30 | | 820 ILCS 185/40 | | 820 ILCS 185/55 | | 820 ILCS 185/63 new | |
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Amends the Employee Classification Act. Includes an individual within the scope of the term "contractor". Provides for notice to an employer of violations and penalties and for a time within which an employer may request a hearing; provides for a formal administrative hearing. Makes changes concerning responsibilities of the Attorney General and the recovery of penalties. Includes discipline within acts prohibited as retaliation against a person for exercising rights under the Act, and adds provisions concerning review, an investigation, and a formal hearing. Provides for individual officers and agents of employers to be liable under the Act.
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| | A BILL FOR |
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| 1 | | AN ACT concerning employment.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Employee Classification Act is amended by | 5 | | changing Sections 5, 25, 30, 40, and 55 and by adding Section | 6 | | 63 as follows: | 7 | | (820 ILCS 185/5)
| 8 | | Sec. 5. Definitions. As used in this Act: | 9 | | "Construction" means any constructing, altering, | 10 | | reconstructing, repairing, rehabilitating, refinishing, | 11 | | refurbishing, remodeling, remediating, renovating, custom | 12 | | fabricating, maintenance, landscaping, improving, wrecking, | 13 | | painting, decorating, demolishing, and adding to or | 14 | | subtracting from any building, structure, highway, roadway, | 15 | | street, bridge, alley, sewer, ditch, sewage disposal plant, | 16 | | water works, parking facility, railroad, excavation or other | 17 | | structure, project, development, real property or improvement, | 18 | | or to do any part thereof, whether or not the performance of | 19 | | the work herein described involves the addition to, or | 20 | | fabrication into, any structure, project, development, real | 21 | | property or improvement herein described of any material or | 22 | | article of merchandise. Construction shall also include moving | 23 | | construction related materials on the job site to or from the |
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| 1 | | job site.
| 2 | | "Contractor" means any individual, sole proprietor, | 3 | | partnership, firm, corporation, limited liability company, | 4 | | association or other legal entity permitted by law to do | 5 | | business within the State of Illinois who engages in | 6 | | construction as defined in this Act. | 7 | | "Contractor" includes a general contractor and a | 8 | | subcontractor.
| 9 | | "Department" means the Department of Labor.
| 10 | | "Director" means the Director of the Department of Labor.
| 11 | | "Employer" means any contractor that employs individuals | 12 | | deemed employees under Section 10 of this Act; however, | 13 | | "employer" does not include (i) the State of Illinois or its | 14 | | officers, agencies, or political subdivisions or (ii) the | 15 | | federal government.
| 16 | | "Entity" means any contractor for which an individual is | 17 | | performing services and is not classified as an employee under | 18 | | Section 10 of this Act; however, "entity" does not include (i) | 19 | | the State of Illinois or its officers, agencies, or political | 20 | | subdivisions or (ii) the federal government.
| 21 | | "Interested party" means a person with an interest in | 22 | | compliance with this Act. | 23 | | "Performing services" means the performance of any | 24 | | constructing, altering, reconstructing, repairing, | 25 | | rehabilitating, refinishing, refurbishing, remodeling, | 26 | | remediating, renovating, custom fabricating, maintenance, |
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| 1 | | landscaping, improving, wrecking, painting, decorating, | 2 | | demolishing, and adding to or subtracting from any building, | 3 | | structure, highway, roadway, street, bridge, alley, sewer, | 4 | | ditch, sewage disposal plant, water works, parking facility, | 5 | | railroad, excavation or other structure, project, development, | 6 | | real property or improvement, or to do any part thereof, | 7 | | whether or not the performance of the work herein described | 8 | | involves the addition to, or fabrication into, any structure, | 9 | | project, development, real property or improvement herein | 10 | | described of any material or article of merchandise. | 11 | | Construction shall also include moving construction related | 12 | | materials on the job site to or from the job site.
| 13 | | (Source: P.A. 95-26, eff. 1-1-08.) | 14 | | (820 ILCS 185/25)
| 15 | | Sec. 25. Enforcement. | 16 | | (a) Any interested party may file a complaint with the | 17 | | Department against an entity or employer covered under this Act | 18 | | if there is a reasonable belief that the entity or employer is | 19 | | in violation of this Act. It shall be the duty of the | 20 | | Department to enforce the provisions of this Act. The | 21 | | Department shall have the power to conduct investigations in | 22 | | connection with the administration and enforcement of this Act | 23 | | and any investigator with the Department shall be authorized to | 24 | | visit and inspect, at all reasonable times, any places covered | 25 | | by this Act and shall be authorized to inspect, at all |
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| 1 | | reasonable times, documents related to the determination of | 2 | | whether an individual is an employee under Section 10 of this | 3 | | Act. The Director of Labor or his or her representative may | 4 | | compel, by subpoena, the attendance and testimony of witnesses | 5 | | and the production of books, payrolls, records, papers, and | 6 | | other evidence in any investigation and may administer oaths to | 7 | | witnesses.
| 8 | | (b) Whenever the Department believes upon investigation | 9 | | that there has been a violation of any of the provisions of | 10 | | this Act or any rules or regulations promulgated under this | 11 | | Act, the Department may: (i) issue and cause to be served on | 12 | | any party an order to cease and desist from further violation | 13 | | of the Act, (ii) take affirmative or other action as deemed | 14 | | reasonable to eliminate the effect of the violation, (iii) | 15 | | collect the amount of any wages, salary, employment benefits, | 16 | | or other compensation denied or lost to the individual, and | 17 | | (iv) assess any civil penalty allowed by this Act. The civil | 18 | | penalties assessed by the Department as well as any other | 19 | | relief requested by the Department shall be recoverable in an | 20 | | action brought in the name of the people of the State of | 21 | | Illinois by the Attorney General.
| 22 | | (c) Upon the determination by the Department of any | 23 | | violation and the determination by the Department of a civil | 24 | | penalty under this Section, the Department shall notify the | 25 | | employer in writing of the alleged violation and the amount of | 26 | | the penalty. The Department shall afford the employer 10 |
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| 1 | | calendar days from the date of the notice to request a hearing. | 2 | | Absent the employer requesting a hearing within the requisite | 3 | | time period provided herein, the Department's determination | 4 | | shall be final. Any final determination by the Department shall | 5 | | be enforceable in an action brought by the Attorney General in | 6 | | the name of the people of the State of Illinois under the | 7 | | Administrative Review Law. | 8 | | (d) Upon timely written request of the employer or entity, | 9 | | the Department shall schedule a formal administrative hearing | 10 | | within 45 days in compliance with Article 10 of the Illinois | 11 | | Administrative Procedure Act and the Department shall have the | 12 | | authority to adopt reasonable rules for the hearing process. | 13 | | The General Assembly finds that the adoption of rules to | 14 | | implement this Section is deemed an emergency and necessary for | 15 | | the public interest and welfare. The final decision of an | 16 | | Administrative Law Judge shall be rendered within 30 calendar | 17 | | days after the close of the hearing. The final decision of an | 18 | | Administrative Law Judge rendered after the close of a hearing | 19 | | under this Section is subject to the provisions of the | 20 | | Administrative Review Law. | 21 | | (Source: P.A. 95-26, eff. 1-1-08.) | 22 | | (820 ILCS 185/30)
| 23 | | Sec. 30. Attorney General; State's Attorneys. Criminal | 24 | | violations of this Act shall be prosecuted by the Attorney | 25 | | General or the appropriate State's Attorney. The Department |
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| 1 | | shall refer matters to the Attorney General and the appropriate | 2 | | State's Attorney upon determining that a criminal violation may | 3 | | have occurred. In all other proceedings the Department shall be | 4 | | represented by the Attorney General's Office.
| 5 | | (Source: P.A. 95-26, eff. 1-1-08.) | 6 | | (820 ILCS 185/40)
| 7 | | Sec. 40. Penalties. An employer or entity that violates any | 8 | | of the provisions of this Act or any rule adopted under this | 9 | | Act shall be subject to a civil penalty not to exceed $1,500 | 10 | | for each violation found in the first audit by the Department. | 11 | | Following a first audit, an employer or entity shall be subject | 12 | | to a civil penalty not to exceed $2,500 for each repeat | 13 | | violation found by the Department within a 5 year period. For | 14 | | purposes of this Section, each violation of this Act for each | 15 | | person and for each day the violation continues shall | 16 | | constitute a separate and distinct violation. In determining | 17 | | the amount of a penalty, the Director shall consider the | 18 | | appropriateness of the penalty to the employer or entity | 19 | | charged, upon the determination of the gravity of the | 20 | | violations. The amount of the penalty, when finally determined, | 21 | | may be recovered in a civil action filed in any circuit court | 22 | | by the Director of Labor, or a person aggrieved by a violation | 23 | | of this Act or any rule adopted under this Act. In any civil | 24 | | action brought by an interested party pursuant to this Section, | 25 | | the circuit court shall award the interested party 10% of the |
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| 1 | | amount recovered. Upon receipt of any civil penalties by the | 2 | | Department, 10% of such moneys shall be distributed and paid to | 3 | | all affected employees. | 4 | | All moneys collected by the Department excluding the 10% | 5 | | amount paid to affected employees shall be submitted to the | 6 | | Director of Labor. In such case, the remaining amount recovered | 7 | | shall be submitted to the Director of Labor. Any uncollected | 8 | | amount shall be subject to the provisions of the Illinois State | 9 | | Collection Act of 1986.
| 10 | | (Source: P.A. 95-26, eff. 1-1-08.) | 11 | | (820 ILCS 185/55)
| 12 | | Sec. 55. Retaliation. | 13 | | (a) It is a violation of this Act for an employer or | 14 | | entity, or any agent of an employer or entity, to retaliate | 15 | | through discharge , discipline, or in any other manner against | 16 | | any person for exercising any rights granted under this Act. | 17 | | Such retaliation shall subject an employer or entity to civil | 18 | | penalties pursuant to this Act or a private cause of action, or | 19 | | both.
| 20 | | (b) It is a violation of this Act for an employer or entity | 21 | | to retaliate against a person for:
| 22 | | (1) making a complaint to an employer or entity, to a | 23 | | co-worker, to a community organization, before a public | 24 | | hearing, or to a State or federal agency that rights | 25 | | guaranteed under this Act have been violated;
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| 1 | | (2) causing to be instituted any proceeding under or | 2 | | related to this Act; or
| 3 | | (3) testifying or preparing to testify in an | 4 | | investigation or proceeding under this Act.
| 5 | | (c) Any employee or a representative of employees who | 6 | | believes that he has been discharged, disciplined, or otherwise | 7 | | retaliated against by any person in violation of this Act, may, | 8 | | within 30 calendar days of the alleged violation, apply to the | 9 | | Department for a review of the discharge, discipline, or | 10 | | related retaliation. A copy of the complaint shall be sent to | 11 | | the person alleged to have committed the retaliation. | 12 | | (d) Upon receipt of the allegation the Department shall | 13 | | cause an investigation to be made. In the event the Department | 14 | | finds cause to believe a violation has occurred, the Department | 15 | | may institute a formal hearing before an Administrative Law | 16 | | Judge. Upon the close of the hearing the Administrative Law | 17 | | Judge shall issue a formal decision, which may include such | 18 | | relief as is necessary to abate the violation including, but | 19 | | not limited to, the rehiring or reinstatement of the employee | 20 | | or representative of the employee and compensating the employee | 21 | | in an amount to make the employee whole. A final decision by | 22 | | the Administrative Law Judge shall be issued within 30 calendar | 23 | | days after the close of a hearing and is subject to the | 24 | | provisions of the Administrative Review Law. | 25 | | (Source: P.A. 95-26, eff. 1-1-08.) |
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| 1 | | (820 ILCS 185/63 new) | 2 | | Sec. 63. Individual liability. In addition to an individual | 3 | | who is deemed to be an employer pursuant to Section 5 of this | 4 | | Act, any officer of a corporation or agent of an employer who | 5 | | knowingly permits such employer to violate the provisions of | 6 | | this Act shall be deemed to be the employers of the employees | 7 | | of the corporation and individually liable for all violations | 8 | | and penalties assessed by the Department.
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