Full Text of HB3227 103rd General Assembly
HB3227ham002 103RD GENERAL ASSEMBLY | Rep. Marcus C. Evans, Jr. Filed: 3/15/2023
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| 1 | | AMENDMENT TO HOUSE BILL 3227
| 2 | | AMENDMENT NO. ______. Amend House Bill 3227 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Minimum Wage Law is amended by changing | 5 | | Section 12 as follows:
| 6 | | (820 ILCS 105/12) (from Ch. 48, par. 1012)
| 7 | | Sec. 12. (a) If any employee is paid by his or her employer | 8 | | less than the wage
to which he or she is entitled under the | 9 | | provisions of this Act, the employee may
recover in a civil
| 10 | | action treble the amount of any such underpayments together | 11 | | with costs and such
reasonable attorney's fees as may be | 12 | | allowed by the Court, and damages of 5% of the amount of any | 13 | | such underpayments for each month following the date of | 14 | | payment during which such underpayments remain unpaid. Any
| 15 | | agreement between the employee and the employer to work for | 16 | | less than such wage is
no defense to such action. At the |
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| 1 | | request of the employee or on motion
of the Director of Labor, | 2 | | the
Department of Labor may make an assignment of such wage | 3 | | claim in trust for
the assigning employee and may bring any | 4 | | legal action necessary to collect
such claim, and the employer | 5 | | shall be required to pay the costs incurred in
collecting such | 6 | | claim. Every such action shall be brought within
3 years from | 7 | | the date of the underpayment. Such employer shall be liable
to | 8 | | the Department of Labor for a penalty in an amount of up to 20% | 9 | | of the total employer's underpayment
where the employer's | 10 | | conduct is proven by a preponderance of the evidence to be | 11 | | willful, repeated, or with reckless disregard of this Act or | 12 | | any rule adopted under this Act. Such employer shall be liable | 13 | | to the Department for an additional penalty of $1,500 . All | 14 | | administrative penalties ordered under this Act shall be paid | 15 | | by certified check, money order, or an electronic payment | 16 | | system designated by the Department for such purposes and | 17 | | shall be made , payable to the Department's Wage Theft | 18 | | Enforcement Fund. Such employer shall be additionally
liable | 19 | | to the employee for damages in the amount of 5% of the amount
| 20 | | of any such underpayments for each month following the date of | 21 | | payment
during which such underpayments
remain unpaid. These | 22 | | penalties and damages may be recovered in a
civil action | 23 | | brought by the Director of Labor in any circuit court. In any
| 24 | | such action, the Director of Labor shall be represented by the | 25 | | Attorney
General.
| 26 | | If an employee collects damages of 5% of the amount
of |
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| 1 | | underpayments as a result of an action brought by the Director | 2 | | of Labor, the employee may not also collect those damages in a | 3 | | private action brought by the employee for the same violation. | 4 | | If an employee collects damages of 5% of the amount
of | 5 | | underpayments in a private action brought by the employee, the | 6 | | employee may not also collect those damages as a result of an | 7 | | action brought by the Director of Labor for the same | 8 | | violation.
| 9 | | (b) If an employee has not collected damages under | 10 | | subsection (a) for the same violation, the Director is | 11 | | authorized to supervise the payment of the unpaid
minimum | 12 | | wages and the unpaid overtime compensation owing to any | 13 | | employee
or employees under Sections 4 and 4a of this Act and | 14 | | may bring any legal
action necessary to recover the amount of | 15 | | the unpaid minimum wages and unpaid
overtime compensation and | 16 | | an equal additional amount as
damages,
and the employer shall | 17 | | be required to pay the costs incurred in collecting such | 18 | | claim. Such employer shall be additionally liable to the | 19 | | Department of Labor for up to 20% of the total employer's | 20 | | underpayment where the employer's conduct is proven by a | 21 | | preponderance of the evidence to be willful, repeated, or with | 22 | | reckless disregard of this Act or any rule adopted under this | 23 | | Act. Such employer shall be liable to the Department of Labor | 24 | | for an additional penalty of $1,500, payable to the | 25 | | Department's Wage Theft Enforcement Fund.
The action shall be | 26 | | brought within 5 years from the date of the failure to
pay
the |
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| 1 | | wages or compensation.
Any sums thus recovered
by the Director | 2 | | on behalf of an employee pursuant to this subsection shall
be | 3 | | deposited into the Department of Labor Special State Trust | 4 | | Fund, from which the Department shall disburse the sums owed | 5 | | to the employee or employees. The Department shall conduct a | 6 | | good faith search to find all employees for whom it has | 7 | | recovered unpaid minimum wages or unpaid overtime | 8 | | compensation. All disbursements authorized under this Section | 9 | | shall be made by certified check, money order, or an | 10 | | electronic payment system designated by the Department paid to | 11 | | the employee or employees affected. Any sums which, more than | 12 | | one
year after being thus recovered, the Director is unable to | 13 | | pay to
an employee shall be deposited into the General Revenue | 14 | | Fund . | 15 | | (c) The Department shall hold any moneys due to employees | 16 | | that it is unable to locate in the Department of Labor Special | 17 | | State Trust Fund for no less than 3 years after the moneys were | 18 | | collected. | 19 | | Beginning November 1, 2023, or as soon as is practical, | 20 | | and each November 1 thereafter, the Department shall report | 21 | | any moneys due to employees who cannot be located and that have | 22 | | been held by the Department in the Department of Labor Special | 23 | | State Trust Fund for 3 or more years and moneys due to | 24 | | employees who are deceased to the State Treasurer as required | 25 | | by the Revised Uniform Unclaimed Property Act. The Department | 26 | | shall not be required to provide the notice required under |
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| 1 | | Section 15-501 of the Revised Uniform Unclaimed Property Act. | 2 | | Beginning July 1, 2023, or as soon as is practical, and | 3 | | each July 1 thereafter, the Department shall direct the State | 4 | | Comptroller and State Treasurer to transfer from the | 5 | | Department of Labor Special State Trust Fund the balance of | 6 | | the moneys due to employees who cannot be located and that have | 7 | | been held by the Department in the Department of Labor Special | 8 | | State Trust Fund for 3 or more years and moneys due to | 9 | | employees who are deceased as follows: (i) 15% to the Wage | 10 | | Theft Enforcement Fund and (ii) 85% to the Unclaimed Property | 11 | | Trust Fund. | 12 | | The Department may use moneys in the Wage Theft | 13 | | Enforcement Fund for the purposes described in Section 14 of | 14 | | the Illinois Wage Payment and Collection Act. | 15 | | (d) The Department may adopt rules to implement and | 16 | | administer this Section.
| 17 | | (Source: P.A. 101-1, eff. 2-19-19.)
| 18 | | Section 10. The Illinois Wage Payment and Collection Act | 19 | | is amended by changing Sections 11.5 and 14 as follows: | 20 | | (820 ILCS 115/11.5) | 21 | | Sec. 11.5. Departmental wage recovery; remittance to | 22 | | aggrieved employee. | 23 | | (a) Upon the recovery of unpaid wages, wage supplements, | 24 | | or final compensation from an employer that has violated this |
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| 1 | | Act, the Department shall conduct a good faith search to find | 2 | | the aggrieved employee. If, after conducting a good faith | 3 | | search for the aggrieved employee, the Department is unable to | 4 | | find the aggrieved employee, the Department shall deposit the | 5 | | amount recovered into the Department of Labor Special State | 6 | | Trust Fund , from which the Department shall disburse the sums | 7 | | owed to the employee or employees. The Department shall | 8 | | conduct a good faith search to find all employees for whom it | 9 | | has recovered unpaid wages, wage supplements, or final | 10 | | compensation. All disbursements authorized under this Section | 11 | | shall be made by certified check, money order, or an | 12 | | electronic payment system designated by the Department . | 13 | | (a-5) The Department shall hold any moneys due to | 14 | | employees that it is unable to locate in the Department of | 15 | | Labor Special State Trust Fund for no less than 3 years after | 16 | | the moneys were collected. | 17 | | Beginning November 1, 2023, or as soon as is practical, | 18 | | and each November 1 thereafter, the Department shall report | 19 | | any moneys due to employees who cannot be located and that have | 20 | | been held by the Department in the Department of Labor Special | 21 | | State Trust Fund for 3 or more years and moneys due to | 22 | | employees who are deceased to the State Treasurer as required | 23 | | by the Revised Uniform Unclaimed Property Act. The Department | 24 | | shall not be required to provide the notice required under | 25 | | Section 15-501 of the Revised Uniform Unclaimed Property Act. | 26 | | Beginning July 1, 2023, or as soon as is practical, and |
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| 1 | | each July 1 thereafter, the Department shall direct the State | 2 | | Comptroller and State Treasurer to transfer from the | 3 | | Department of Labor Special State Trust Fund the balance of | 4 | | the moneys due to employees who cannot be located and that have | 5 | | been held by the Department in the Department of Labor Special | 6 | | State Trust Fund for 3 or more years and moneys due to | 7 | | employees who are deceased as follows: (i) 15% to the Wage | 8 | | Theft Enforcement Fund and (ii) 85% to the Unclaimed Property | 9 | | Trust Fund. | 10 | | The Department may use moneys in the Wage Theft | 11 | | Enforcement Fund for the purposes described in Section 14 of | 12 | | the Illinois Wage Payment and Collection Act. | 13 | | (b) An aggrieved employee may make a request to the | 14 | | Department in order to recover unpaid wages, wage supplements, | 15 | | or final compensation that has been deposited into the | 16 | | Department of Labor Special State Trust Fund. The Department | 17 | | shall not require the employee to present a Social Security | 18 | | number or proof of United States citizenship. For the purpose | 19 | | of paying claims under this Section from the Department of | 20 | | Labor Special State Trust Fund to aggrieved employees, the | 21 | | Comptroller shall assign a vendor payment number to the | 22 | | Department. When an aggrieved employee makes a valid request | 23 | | for payment to the Department, the Department shall use the | 24 | | vendor payment number to process payment on behalf of the | 25 | | aggrieved employee. | 26 | | (c) The Department shall adopt rules for the |
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| 1 | | administration of this Section.
| 2 | | (Source: P.A. 99-762, eff. 1-1-17 .)
| 3 | | (820 ILCS 115/14) (from Ch. 48, par. 39m-14)
| 4 | | Sec. 14. (a) Any employee not timely paid wages, final | 5 | | compensation, or wage supplements by his or her employer as | 6 | | required by this Act shall be entitled to recover through a | 7 | | claim filed with the Department of Labor or in a civil action, | 8 | | but not both, the amount of any such underpayments and damages | 9 | | of 5% of the amount of any such underpayments for each month | 10 | | following the date of payment during which such underpayments | 11 | | remain unpaid. In a civil action, such employee shall also | 12 | | recover costs and all reasonable attorney's fees. | 13 | | (a-5) In addition to the remedies provided in subsections | 14 | | (a), (b), and (c) of this Section, any employer or any agent of | 15 | | an employer, who, being able to pay wages,
final compensation, | 16 | | or wage supplements and being under a duty to pay,
wilfully | 17 | | refuses to pay as provided in this Act, or falsely denies the
| 18 | | amount or validity thereof or that the same is due, with intent | 19 | | to secure
for himself or other person any underpayment of such | 20 | | indebtedness or with
intent to annoy, harass, oppress, hinder, | 21 | | delay or defraud the person to
whom such indebtedness is due, | 22 | | upon conviction, is guilty of: | 23 | | (1) for unpaid wages, final compensation or wage | 24 | | supplements in the amount of $5,000 or less, a Class B | 25 | | misdemeanor; or |
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| 1 | | (2) for unpaid wages, final compensation or wage | 2 | | supplements in the amount of more than $5,000, a Class A | 3 | | misdemeanor. | 4 | | Each day during which any violation of this Act continues
| 5 | | shall constitute a separate and distinct offense.
| 6 | | Any employer or any agent of an employer who violates this | 7 | | Section of the Act a subsequent time within 2 years of a prior | 8 | | criminal conviction under this Section is guilty, upon | 9 | | conviction, of a Class 4 felony. | 10 | | (b) Any employer who has been demanded or ordered by the | 11 | | Department or ordered by the court
to pay wages, final | 12 | | compensation, or wage supplements due an employee shall be | 13 | | required to pay a non-waivable administrative fee to the | 14 | | Department of Labor in the amount of $250 if the amount ordered | 15 | | by the Department as wages owed is $3,000 or less; $500 if the | 16 | | amount ordered by the Department as wages owed is more than | 17 | | $3,000, but less than $10,000; and $1,000 if the amount | 18 | | ordered by the Department as wages owed is $10,000 or more. Any | 19 | | employer who has been so demanded or ordered by the Department | 20 | | or ordered by a court to pay such wages, final compensation, or | 21 | | wage supplements and who fails to seek timely review of such a | 22 | | demand or order as provided for under this Act and who fails to | 23 | | comply within 15 calendar days after such demand or within 35 | 24 | | days of an administrative or court order is entered shall also | 25 | | be liable to pay a penalty to the Department of Labor of 20% of | 26 | | the amount found owing and a penalty to the employee of 1% per |
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| 1 | | calendar day of the amount found owing for each day of delay in | 2 | | paying such wages to the employee. All moneys recovered as | 3 | | fees and civil penalties under this Act, except those owing to | 4 | | the affected employee, shall be deposited into the Wage Theft | 5 | | Enforcement Fund, a special fund which is hereby created in | 6 | | the State treasury. Moneys in the Fund may be used only for | 7 | | enforcement of this Act and for outreach and educational | 8 | | activities of the Department related to the recovery of unpaid | 9 | | or underpaid compensation and the disbursement of moneys to | 10 | | affected parties .
| 11 | | (b-5) Penalties and fees under this Section may be | 12 | | assessed by the Department and recovered in a civil action | 13 | | brought by the Department in any circuit court or in any | 14 | | administrative adjudicative proceeding under this Act. In any | 15 | | such civil action or administrative adjudicative proceeding | 16 | | under this Act, the Department shall be represented by the | 17 | | Attorney General.
| 18 | | (c) Any employer, or any agent of an employer, who | 19 | | discharges
or in any other manner discriminates against any | 20 | | employee because
that employee
has made a complaint to his or | 21 | | her employer, to the Director of Labor or his or her
authorized | 22 | | representative, in a public hearing, or to a community | 23 | | organization that he or she has not been paid in accordance
| 24 | | with the provisions of this Act, or because that employee has | 25 | | caused to
be instituted any proceeding under or related to | 26 | | this Act, or because that
employee has testified or is about to |
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| 1 | | testify in an investigation or proceeding
under this Act, is | 2 | | guilty, upon conviction, of a Class C misdemeanor. An employee | 3 | | who has been unlawfully retaliated against shall be entitled | 4 | | to recover through a claim filed with the Department of Labor | 5 | | or in a civil action, but not both, all legal and equitable | 6 | | relief as may be appropriate. In a civil action, such employee | 7 | | shall also recover costs and all reasonable attorney's fees.
| 8 | | (Source: P.A. 102-50, eff. 7-9-21.)
| 9 | | Section 99. Effective date. This Act takes effect upon | 10 | | becoming law.".
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