SB1978 100TH GENERAL ASSEMBLY

LRB100 07374 JLS 17438 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
SB1978

Introduced 2/10/2017, by Sen. Bill Cunningham

SYNOPSIS AS INTRODUCED:

New Act
30 ILCS 105/5.878 new

Creates the Home Care Consumer and Worker Protection Act. Provides that an individual performing services for a private home care provider (a home services agency, home nursing agency, or internet-based business that arranges for home care services) is presumed to be an employee unless specified conditions exist; however, a sole proprietor or partnership performing services is not considered an employee of the agency or private party upon a showing that it is a legitimate subcontractor. Makes it a violation of the Act for a private home care provider not to designate an individual as an employee unless the private home care provider complies with specified provisions. Provides that an interested party may file a complaint online through the website of the Department of Labor against a private home care provider if there is a reasonable belief that the employer is in violation of the Act. Provides that the Department shall enforce the Act and may conduct investigations, obtain documentation, and subpoena books, records, and witnesses to conduct its investigations. Prohibits discharge or other retaliation for exercising rights under the Act. Contains provisions concerning violations, penalties, private rights of action, referrals, rulemaking, and other matters. Provides that moneys received by the Department under the Act shall be deposited into the Home Care Consumer and Worker Protection Fund and amends the State Finance Act to include it as a special fund in the State treasury.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning employment.

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

Section 1. Short title. This Act may be cited as the Home Care Consumer and Worker Protection Act.

Section 5. Purpose. This Act is intended to protect consumers of home care services and the workers delivering those services by ensuring that both the consumers and the workers are receiving all affordable labor law protections and tax obligation compliances and that there is adherence to current licensure requirements and rules governing agencies employing or placing home care workers for employment.

Section 10. Definitions. As used in this Act:

"Consumer" means an individual who is the recipient of home care services from a home care worker.

"Department" means the Department of Labor.

"Director" means the Director of Labor.

"Employee" means a person who works in the service of another person or company under an express or implied contract for hire, under which the employer has the right to control the details of work performance for wages, salary, fee, or payment.

"Employer" means a person for whom an individual performs or did perform any service, of whatever nature, as an employee.

"Home care" or "home services" means care that helps individuals maintain healthy and active lifestyles for as long as possible in the comfort of their own homes including assistance with daily living activities such as bathing, dressing, meal preparation, eating, transportation, running errands, and light housework. "Home care" or "home services" does not include services that would be required to be performed by an individual licensed under the Nurse Practice Act.

"Home care worker" means an individual that provides home services to a consumer in the consumer's personal residence.

"Home nursing agency" means an agency licensed under the Home Health, Home Services, and Home Nursing Agency Licensing Act that provides services directly in order to deliver skilled nursing and home health aide services to persons in their personal residences. A home nursing agency provides services that would be required to be performed by an individual licensed under the Nurse Practice Act. Workers for home nursing agencies are employees of the agency and the agency is responsible for ensuring that the workers are receiving all affordable labor law protections, tax obligation compliances, and adherence to licensure requirements and regulations.

"Home services agency" means an agency licensed under the Home Health, Home Services, and Home Nursing Agency Licensing Act that provides services to assist an individual in his or her residence with activities of daily living, housekeeping, personal laundry, and companionship which is intended to enable that individual to remain safely and comfortably in their residence. Workers for home services agencies are employees of the agency and the agency is responsible for ensuring that the workers are receiving all affordable labor law protections, tax obligation compliances, and adherence to licensure requirements and regulations.

"Independent contractor" means an individual whose payer has the right to control or direct only the result of his or her work and not what will be done and how it will be done. Additional facts that provide evidence of the degree of control and independence can be considered when determining whether an individual is an employee or an independent contractor.

"Private home care provider" means a home services agency, home nursing agency, or Internet-based business that arranges for home care services for individuals residing in Illinois.

Section 15. Applicability; status of individuals performing service. For the purposes of this Act, an individual performing services for a private home care provider shall be presumed to be an employee unless it is shown that:

(1) the individual is free from control or direction over the performance of the service;

(2) the service performed is outside the usual course of services performed by the employer; and

(3) the individual is engaged in an independently established trade, occupation, profession or business.

A sole proprietor or partnership performing services, however, shall not be considered an employee of the agency or private party as long as it can be shown that the party is a legitimate subcontractor.

Section 20. Failure to properly designate or classify individuals performing services as employees. It is a violation of this Act for a private home care provider to not designate an individual as an employee under Section 15 of this Act unless the private home care provider complies with Section 15 of this Act.

Section 25. Enforcement.

(a) Any interested party may file a complaint online through the Department's website against a private home care provider subject to this Act if there is a reasonable belief that the employer is in violation of this Act. It is the duty of the Department to enforce the provisions of this Act. The Department has the authority to conduct investigations and send investigators to visit and inspect the private home care provider's business locations as well as obtain any documentation related to the determination of whether an individual is an employee of the private home care provider under Section 15 of this Act. The Department may also subpoena all books, records, and witnesses as needed to conduct its investigation.

(b) If the Department concludes that a violation of this Act has occurred, the Department may issue a cease and desist order; recommend the commencement of a civil action; collect any wages, salary, employment benefits, or other compensation denied or lost to the individual; assess civil penalties; or take any other reasonable action to eliminate the unlawful practice or remedy the effect of the violation.

Section 30. Retaliation. It is a violation of this Act for a private home care provider to discharge or otherwise retaliate against an individual for exercising any rights granted under this Act. It is a violation of this Act for a private home care provider to retaliate against a person for:

(1) making a complaint to an employer, co-worker, or community organization, before a public hearing, or to a State or federal agency;

(2) causing any proceeding to be instituted under this Act;

(3) testifying in an investigation or proceeding under this Act.

Section 35. Penalties.

(a) A private home care provider that violates any of the provisions of this Act or any rule adopted under this Act shall be subject to a civil penalty not to exceed $1,500 for each violation found in the first audit by the Department. Following a first audit, a private home care provider shall be subject to a civil penalty not to exceed $2,500 for each repeat violation found by the Department within a 5-year period.

(b) For purposes of this Section, each violation of this Act for each person and for each day the violation continues shall constitute a separate and distinct violation.

(c) Civil penalties may be imposed and recovered by the Department in an administrative proceeding that complies with the Illinois Administrative Procedure Act or in a civil action brought by the Director or a person aggrieved by a violation of this Act or any rule adopted under this Act.

Section 40. Penalties recovered.

(a) Moneys received by the Department under this Act shall be deposited into the Home Care consumer and Worker Protection Fund, a special fund created in the State treasury.

(b) Moneys in the Fund shall be used, subject to appropriation by the General Assembly, by the Department for administration, investigation, and other expenses incurred in carrying out its powers and duties under this Act.

Section 45. Willful violations.

(a) Whoever willfully violates any of the provisions of this Act or any rule adopted under this Act or whoever obstructs the Director, or his or her representatives in their efforts to enforce the Act shall be liable for penalties up to double the statutory amount.

(b) Whoever willfully violates any of the provisions of this Act or any rule adopted under this Act shall be liable to the employee for punitive damages in an amount equal to the penalties assessed in subsection (a) of this Section.

(c) A private home care provider that willfully violates any provision of this Act or any rule adopted under this Act commits a Class C misdemeanor. A private home care provider that commits a second or subsequent violation within a 5-year period commits a Class 4 felony.

Section 50. Private right of action.

(a) Any interested party or person aggrieved by a violation of this Act or any rule adopted under this Act may file suit within 3 years from the final date of performing services for the private home care provider. A person may file a private right of action without exhausting administrative remedies through the Department.

(b) A person whose rights have been violated under this Act by a private home care provider is entitled to collect:

(1) any wages, salary, employment benefits, or other compensation denied or lost to the person by reason of the violation, plus an equal amount in liquidated damages;

(2) compensatory damages and an amount up to $500 for each violation of this Act or any rule adopted under this Act;

(3) in the case of unlawful retaliation, all legal or equitable relief as may be appropriate; and

(4) attorney's fees and costs.

Section 55. Referral to other State agencies.

(a) If the Department determines that a private home care provider has violated this Act by failing to classify individuals performing services as employees, the Department must notify the following state authorities:

(1) Department of Employment Security;

(2) Department of Public Health;

(3) Department of Revenue;

(4) Office of the State Comptroller; and

(5) Illinois Workers' Compensation Commission.

(b) The notified State agency shall check such private home care provider's compliance with its tax and employment laws as well as any other related laws and rules under the agency's jurisdiction.

Section 60. Rulemaking. The Department may adopt reasonable rules to implement and administer this Act.

Section 97. The State Finance Act is amended by adding Section 5.878 as follows:

(30 ILCS 105/5.878 new)

Sec. 5.878. The Home Care Consumer and Worker Protection Fund.