Full Text of HB2649 98th General Assembly
HB2649enr 98TH GENERAL ASSEMBLY |
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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, and 40 and by adding Section 63 as | 6 | | 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. Within 120 days of the filing of a complaint, the | 8 | | Department shall notify the employer in writing of the filing | 9 | | of a complaint and provide the employer the location and | 10 | | approximate date of the project or projects, affected | 11 | | contractors, and the nature of the allegations being | 12 | | investigated.
| 13 | | (b) Whenever the Department believes upon investigation | 14 | | that there has been a violation of any of the provisions of | 15 | | this Act or any rules or regulations promulgated under this | 16 | | Act, the Department may: (i) issue and cause to be served on | 17 | | any party an order to cease and desist from further violation | 18 | | of the Act, (ii) take affirmative or other action as deemed | 19 | | reasonable to eliminate the effect of the violation, (iii) | 20 | | collect the amount of any wages, salary, employment benefits, | 21 | | or other compensation denied or lost to the individual, and | 22 | | (iv) assess any civil penalty allowed by this Act. The civil | 23 | | penalties assessed by the Department as well as any other | 24 | | relief requested by the Department shall be recoverable in an | 25 | | action brought in the name of the people of the State of | 26 | | Illinois by the Attorney General.
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| 1 | | (c) If, upon investigation, the Department finds cause to | 2 | | believe that Section 20 or Section 55 of this Act has been | 3 | | violated, the Department shall notify the employer, in writing, | 4 | | of its finding and any proposed relief due and penalties | 5 | | assessed and that the matter will be referred to an | 6 | | Administrative Law Judge to schedule a formal hearing in | 7 | | accordance with the Illinois Administrative Procedure Act. | 8 | | (d) The employer has 28 calendar days from the date of the | 9 | | Department's findings to answer the allegations contained in | 10 | | the Department's findings. If an employer fails to answer all | 11 | | allegations contained in the Department's findings, any | 12 | | unanswered allegations or findings shall be deemed admitted to | 13 | | be true and shall be found true in the final decision issued by | 14 | | the Administrative Law Judge. If, within 30 calendar days of | 15 | | the final decision issued by the Administrative Law Judge, the | 16 | | employer files a motion to vacate the Administrative Law | 17 | | Judge's final decision and demonstrates good cause for failing | 18 | | to answer the Department's allegations, and the Administrative | 19 | | Law Judge grants the motion, the employer shall be afforded an | 20 | | opportunity to answer and the matter shall proceed as if an | 21 | | original answer to the Department's findings had been filed. | 22 | | (e) A final decision of an Administrative Law Judge issued | 23 | | pursuant to this Section is subject to the provisions of the | 24 | | Administrative Review Law and shall be enforceable in an action | 25 | | brought in the name of the people of the State of Illinois by | 26 | | the Attorney General. |
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| 1 | | (Source: P.A. 95-26, eff. 1-1-08.) | 2 | | (820 ILCS 185/30)
| 3 | | Sec. 30. Attorney General; State's Attorneys. Criminal | 4 | | violations of this Act shall be prosecuted by the Attorney | 5 | | General or the appropriate State's Attorney. The Department | 6 | | shall refer matters to the Attorney General and the appropriate | 7 | | State's Attorney upon determining that a criminal violation may | 8 | | have occurred. In all other proceedings the Department shall be | 9 | | represented by the Attorney General's Office.
| 10 | | (Source: P.A. 95-26, eff. 1-1-08.) | 11 | | (820 ILCS 185/40)
| 12 | | Sec. 40. Penalties. | 13 | | (a) An employer or entity that violates any of the | 14 | | provisions of this Act or any rule adopted under this Act shall | 15 | | be subject to a civil penalty not to exceed $1,000 $1,500 for | 16 | | each violation found in the first audit by the Department. | 17 | | Following a first audit, an employer or entity shall be subject | 18 | | to a civil penalty not to exceed $2,000 $2,500 for each repeat | 19 | | violation found by the Department within a 5 year period. For | 20 | | purposes of this Section, each violation of this Act for each | 21 | | person and for each day the violation continues shall | 22 | | constitute a separate and distinct violation. In determining | 23 | | the amount of a penalty, the Director shall consider the | 24 | | appropriateness of the penalty to the employer or entity |
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| 1 | | charged, upon the determination of the gravity of the | 2 | | violations. | 3 | | (b) The amount of the penalty, when finally determined, may | 4 | | be recovered in any administrative proceeding or a civil action | 5 | | filed in any circuit court by the Director of Labor, or a | 6 | | person aggrieved by a violation of this Act or any rule adopted | 7 | | under this Act. | 8 | | (1) The Department shall distribute to all affected | 9 | | employees 10% of the civil penalty recovered as a result of | 10 | | any administrative proceeding or civil action brought by | 11 | | the Department. The remaining 90% of the amount recovered | 12 | | shall be submitted to the Director of Labor. | 13 | | (2) In any civil action brought by an interested party | 14 | | pursuant to this Section, the circuit court shall award the | 15 | | interested party 10% of the amount recovered. In such case, | 16 | | the remaining amount recovered shall be submitted to the | 17 | | Director of Labor. | 18 | | (c) Any uncollected amount shall be subject to the | 19 | | provisions of the Illinois State Collection Act of 1986.
| 20 | | (Source: P.A. 95-26, eff. 1-1-08.) | 21 | | (820 ILCS 185/63 new) | 22 | | Sec. 63. Individual liability. In addition to an individual | 23 | | who is an employer pursuant to Section 5 of this Act, any | 24 | | officer of a corporation or agent of a corporation who | 25 | | knowingly permits such employer to violate the provisions of |
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| 1 | | this Act may be held individually liable for all violations and | 2 | | penalties assessed under this Act. This Section shall not apply | 3 | | to an individual who is an officer or agent of a corporation | 4 | | which on the project under investigation satisfies the | 5 | | responsible bidder requirements set forth in the Illinois | 6 | | Procurement Code.
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