99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
SB2253

 

Introduced 1/27/2016, by Sen. Pamela J. Althoff

 

SYNOPSIS AS INTRODUCED:
 
820 ILCS 130/2  from Ch. 48, par. 39s-2
820 ILCS 130/4  from Ch. 48, par. 39s-4
820 ILCS 130/11a  from Ch. 48, par. 39s-11a

    Amends the Prevailing Wage Act. Defines "compensatory damages" and "actual damages" as the sum of economic and non-economic damages. Provides that any individual, contractor, or subcontractor who has been aggrieved by a filed false complaint may institute a civil action for damages, including, but not limited to, compensatory damages, legal fees, administrative fees, penalties assessed by the Department of Labor pursuant to the complaint, injunctive relief, and other appropriate equitable relief. Provides that no public body, including a home rule unit, is authorized to use as a basis for denying a contract to a contractor or subcontractor any complaint filed with the Department or any determination by the Department that the contractor or subcontractor has committed a violation under this Act, unless the contractor or subcontractor is debarred at the time of the bid. Effective immediately.


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FISCAL NOTE ACT MAY APPLY
HOME RULE NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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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 2, 4, and 11a as follows:
 
6    (820 ILCS 130/2)  (from Ch. 48, par. 39s-2)
7    Sec. 2. This Act applies to the wages of laborers,
8mechanics and other workers employed in any public works, as
9hereinafter defined, by any public body and to anyone under
10contracts for public works. This includes any maintenance,
11repair, assembly, or disassembly work performed on equipment
12whether owned, leased, or rented.
13    As used in this Act, unless the context indicates
14otherwise:
15    "Public works" means all fixed works constructed or
16demolished by any public body, or paid for wholly or in part
17out of public funds. "Public works" as defined herein includes
18all projects financed in whole or in part with bonds, grants,
19loans, or other funds made available by or through the State or
20any of its political subdivisions, including but not limited
21to: bonds issued under the Industrial Project Revenue Bond Act
22(Article 11, Division 74 of the Illinois Municipal Code), the
23Industrial Building Revenue Bond Act, the Illinois Finance

 

 

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1Authority Act, the Illinois Sports Facilities Authority Act, or
2the Build Illinois Bond Act; loans or other funds made
3available pursuant to the Build Illinois Act; loans or other
4funds made available pursuant to the Riverfront Development
5Fund under Section 10-15 of the River Edge Redevelopment Zone
6Act; or funds from the Fund for Illinois' Future under Section
76z-47 of the State Finance Act, funds for school construction
8under Section 5 of the General Obligation Bond Act, funds
9authorized under Section 3 of the School Construction Bond Act,
10funds for school infrastructure under Section 6z-45 of the
11State Finance Act, and funds for transportation purposes under
12Section 4 of the General Obligation Bond Act. "Public works"
13also includes (i) all projects financed in whole or in part
14with funds from the Department of Commerce and Economic
15Opportunity under the Illinois Renewable Fuels Development
16Program Act for which there is no project labor agreement; (ii)
17all work performed pursuant to a public private agreement under
18the Public Private Agreements for the Illiana Expressway Act or
19the Public-Private Agreements for the South Suburban Airport
20Act; and (iii) all projects undertaken under a public-private
21agreement under the Public-Private Partnerships for
22Transportation Act. "Public works" also includes all projects
23at leased facility property used for airport purposes under
24Section 35 of the Local Government Facility Lease Act. "Public
25works" also includes the construction of a new wind power
26facility by a business designated as a High Impact Business

 

 

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1under Section 5.5(a)(3)(E) of the Illinois Enterprise Zone Act.
2"Public works" does not include work done directly by any
3public utility company, whether or not done under public
4supervision or direction, or paid for wholly or in part out of
5public funds. "Public works" also includes any corrective
6action performed pursuant to Title XVI of the Environmental
7Protection Act for which payment from the Underground Storage
8Tank Fund is requested. "Public works" does not include
9projects undertaken by the owner at an owner-occupied
10single-family residence or at an owner-occupied unit of a
11multi-family residence. "Public works" does not include work
12performed for soil and water conservation purposes on
13agricultural lands, whether or not done under public
14supervision or paid for wholly or in part out of public funds,
15done directly by an owner or person who has legal control of
16those lands.
17    "Compensatory damages" or "actual damages" are the sum of
18economic and non-economic damages.
19    "Construction" means all work on public works involving
20laborers, workers or mechanics. This includes any maintenance,
21repair, assembly, or disassembly work performed on equipment
22whether owned, leased, or rented.
23    "Locality" means the county where the physical work upon
24public works is performed, except (1) that if there is not
25available in the county a sufficient number of competent
26skilled laborers, workers and mechanics to construct the public

 

 

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1works efficiently and properly, "locality" includes any other
2county nearest the one in which the work or construction is to
3be performed and from which such persons may be obtained in
4sufficient numbers to perform the work and (2) that, with
5respect to contracts for highway work with the Department of
6Transportation of this State, "locality" may at the discretion
7of the Secretary of the Department of Transportation be
8construed to include two or more adjacent counties from which
9workers may be accessible for work on such construction.
10    "Public body" means the State or any officer, board or
11commission of the State or any political subdivision or
12department thereof, or any institution supported in whole or in
13part by public funds, and includes every county, city, town,
14village, township, school district, irrigation, utility,
15reclamation improvement or other district and every other
16political subdivision, district or municipality of the state
17whether such political subdivision, municipality or district
18operates under a special charter or not.
19    The terms "general prevailing rate of hourly wages",
20"general prevailing rate of wages" or "prevailing rate of
21wages" when used in this Act mean the hourly cash wages plus
22annualized fringe benefits for training and apprenticeship
23programs approved by the U.S. Department of Labor, Bureau of
24Apprenticeship and Training, health and welfare, insurance,
25vacations and pensions paid generally, in the locality in which
26the work is being performed, to employees engaged in work of a

 

 

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1similar character on public works.
2(Source: P.A. 97-502, eff. 8-23-11; 98-109, eff. 7-25-13;
398-482, eff. 1-1-14; 98-740, eff. 7-16-14; 98-756, eff.
47-16-14.)
 
5    (820 ILCS 130/4)  (from Ch. 48, par. 39s-4)
6    Sec. 4. Ascertaining prevailing wage.
7    (a) The public body awarding any contract for public work
8or otherwise undertaking any public works, shall ascertain the
9general prevailing rate of hourly wages in the locality in
10which the work is to be performed, for each craft or type of
11worker or mechanic needed to execute the contract, and where
12the public body performs the work without letting a contract
13therefor, shall ascertain the prevailing rate of wages on a per
14hour basis in the locality, and such public body shall specify
15in the resolution or ordinance and in the call for bids for the
16contract, that the general prevailing rate of wages in the
17locality for each craft or type of worker or mechanic needed to
18execute the contract or perform such work, also the general
19prevailing rate for legal holiday and overtime work, as
20ascertained by the public body or by the Department of Labor
21shall be paid for each craft or type of worker needed to
22execute the contract or to perform such work, and it shall be
23mandatory upon the contractor to whom the contract is awarded
24and upon any subcontractor under him, and where the public body
25performs the work, upon the public body, to pay not less than

 

 

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1the specified rates to all laborers, workers and mechanics
2employed by them in the execution of the contract or such work;
3provided, however, that if the public body desires that the
4Department of Labor ascertain the prevailing rate of wages, it
5shall notify the Department of Labor to ascertain the general
6prevailing rate of hourly wages for work under contract, or for
7work performed by a public body without letting a contract as
8required in the locality in which the work is to be performed,
9for each craft or type of worker or mechanic needed to execute
10the contract or project or work to be performed. Upon such
11notification the Department of Labor shall ascertain such
12general prevailing rate of wages, and certify the prevailing
13wage to such public body.
14    (a-1) The public body or other entity awarding the contract
15shall cause to be inserted in the project specifications and
16the contract a stipulation to the effect that not less than the
17prevailing rate of wages as found by the public body or
18Department of Labor or determined by the court on review shall
19be paid to all laborers, workers and mechanics performing work
20under the contract.
21    (a-2) When a public body or other entity covered by this
22Act has awarded work to a contractor without a public bid,
23contract or project specification, such public body or other
24entity shall comply with subsection (a-1) by providing the
25contractor with written notice on the purchase order related to
26the work to be done or on a separate document indicating that

 

 

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1not less than the prevailing rate of wages as found by the
2public body or Department of Labor or determined by the court
3on review shall be paid to all laborers, workers, and mechanics
4performing work on the project.
5    (a-3) Where a complaint is made and the Department of Labor
6determines that a violation occurred, the Department of Labor
7shall determine if proper written notice under this Section 4
8was given. If proper written notice was not provided to the
9contractor by the public body or other entity, the Department
10of Labor shall order the public body or other entity to pay any
11interest, penalties or fines that would have been owed by the
12contractor if proper written notice were provided. The failure
13by a public body or other entity to provide written notice does
14not relieve the contractor of the duty to comply with the
15prevailing wage rate, nor of the obligation to pay any back
16wages, as determined under this Act. For the purposes of this
17subsection, back wages shall be limited to the difference
18between the actual amount paid and the prevailing rate of wages
19required to be paid for the project. The failure of a public
20body or other entity to provide written notice under this
21Section 4 does not diminish the right of a laborer, worker, or
22mechanic to the prevailing rate of wages as determined under
23this Act.
24    (a-4) Any individual, contractor, or subcontractor who has
25been aggrieved by a filed false complaint may institute a civil
26action for damages, including, but not limited to, compensatory

 

 

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1damages, legal fees, administrative fees, penalties assessed
2by the Department of Labor pursuant to the complaint,
3injunctive relief, and other appropriate equitable relief. Any
4person found to knowingly file a false complaint shall be
5liable to the individual, contractor, or subcontractor who was
6falsely accused for damages as provided in this subsection.
7    (b) It shall also be mandatory upon the contractor to whom
8the contract is awarded to insert into each subcontract and
9into the project specifications for each subcontract a written
10stipulation to the effect that not less than the prevailing
11rate of wages shall be paid to all laborers, workers, and
12mechanics performing work under the contract. It shall also be
13mandatory upon each subcontractor to cause to be inserted into
14each lower tiered subcontract and into the project
15specifications for each lower tiered subcontract a stipulation
16to the effect that not less than the prevailing rate of wages
17shall be paid to all laborers, workers, and mechanics
18performing work under the contract. A contractor or
19subcontractor who fails to comply with this subsection (b) is
20in violation of this Act.
21    (b-1) When a contractor has awarded work to a subcontractor
22without a contract or contract specification, the contractor
23shall comply with subsection (b) by providing a subcontractor
24with a written statement indicating that not less than the
25prevailing rate of wages shall be paid to all laborers,
26workers, and mechanics performing work on the project. A

 

 

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

 

 

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1back wages shall be limited to the difference between the
2actual amount paid and the prevailing rate of wages required
3for the project. The failure to provide written notice by a
4public body, other entity, or contractor does not diminish the
5right of a laborer, worker, or mechanic to the prevailing rate
6of wages as determined under this Act.
7    (c) A public body or other entity shall also require in all
8contractor's and subcontractor's bonds that the contractor or
9subcontractor include such provision as will guarantee the
10faithful performance of such prevailing wage clause as provided
11by contract or other written instrument. All bid specifications
12shall list the specified rates to all laborers, workers and
13mechanics in the locality for each craft or type of worker or
14mechanic needed to execute the contract.
15    (d) If the Department of Labor revises the prevailing rate
16of hourly wages to be paid by the public body or other entity,
17the revised rate shall apply to such contract, and the public
18body or other entity shall be responsible to notify the
19contractor and each subcontractor, of the revised rate.
20    The public body or other entity shall discharge its duty to
21notify of the revised rates by inserting a written stipulation
22in all contracts or other written instruments that states the
23prevailing rate of wages are revised by the Department of Labor
24and are available on the Department's official website. This
25shall be deemed to be proper notification of any rate changes
26under this subsection.

 

 

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1    (e) Two or more investigatory hearings under this Section
2on the issue of establishing a new prevailing wage
3classification for a particular craft or type of worker shall
4be consolidated in a single hearing before the Department. Such
5consolidation shall occur whether each separate investigatory
6hearing is conducted by a public body or the Department. The
7party requesting a consolidated investigatory hearing shall
8have the burden of establishing that there is no existing
9prevailing wage classification for the particular craft or type
10of worker in any of the localities under consideration.
11    (f) It shall be mandatory upon the contractor or
12construction manager to whom a contract for public works is
13awarded to post, at a location on the project site of the
14public works that is easily accessible to the workers engaged
15on the project, the prevailing wage rates for each craft or
16type of worker or mechanic needed to execute the contract or
17project or work to be performed. In lieu of posting on the
18project site of the public works, a contractor which has a
19business location where laborers, workers, and mechanics
20regularly visit may: (1) post in a conspicuous location at that
21business the current prevailing wage rates for each county in
22which the contractor is performing work; or (2) provide such
23laborer, worker, or mechanic engaged on the public works
24project a written notice indicating the prevailing wage rates
25for the public works project. A failure to post or provide a
26prevailing wage rate as required by this Section is a violation

 

 

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1of this Act.
2(Source: P.A. 96-437, eff. 1-1-10; 97-964, eff. 1-1-13.)
 
3    (820 ILCS 130/11a)  (from Ch. 48, par. 39s-11a)
4    Sec. 11a. The Director of the Department of Labor shall
5publish in the Illinois Register no less often than once each
6calendar quarter a list of contractors or subcontractors found
7to have disregarded their obligations to employees under this
8Act. The Department of Labor shall determine the contractors or
9subcontractors who, on 2 separate occasions within 5 years,
10have been determined to have violated the provisions of this
11Act. Upon such determination the Department shall notify the
12violating contractor or subcontractor. Such contractor or
13subcontractor shall then have 10 working days to request a
14hearing by the Department on the alleged violations. Failure to
15respond within the 10 working day period shall result in
16automatic and immediate placement and publication on the list.
17If the contractor or subcontractor requests a hearing within
18the 10 working day period, the Director shall set a hearing on
19the alleged violations. Such hearing shall take place no later
20than 45 calendar days after the receipt by the Department of
21Labor of the request for a hearing. The Department of Labor is
22empowered to promulgate, adopt, amend and rescind rules and
23regulations to govern the hearing procedure. No contract shall
24be awarded to a contractor or subcontractor appearing on the
25list, or to any firm, corporation, partnership or association

 

 

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1in which such contractor or subcontractor has an interest until
24 years have elapsed from the date of publication of the list
3containing the name of such contractor or subcontractor. A
4public body, including a home rule unit, may not use as a basis
5for denying a contract to a contractor or subcontractor any
6complaint filed with the Department or any determination by the
7Department that the contractor or subcontractor has committed a
8violation under this Act, unless the contractor or
9subcontractor is debarred at the time of the bid as provided
10under this Section. This subsection is a limitation under
11subsection (i) of Section 6 of Article VII of the Illinois
12Constitution on the concurrent exercise by home rule units of
13powers and functions exercised by the State.
14    A contractor or subcontractor convicted or found guilty
15under Section 5 or 6 of this Act shall be subject to an
16automatic and immediate debarment, thereafter prohibited from
17participating in any public works project for 4 years, with no
18right to a hearing.
19(Source: P.A. 97-571, eff. 1-1-12.)
 
20    Section 99. Effective date. This Act takes effect upon
21becoming law.