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Public Act 098-1133 | ||||
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AN ACT concerning employment.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 10. The Public Employment Office Act is amended by | ||||
changing Section 7 as follows:
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(20 ILCS 1015/7) (from Ch. 48, par. 183)
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Sec. 7.
No fee or compensation shall be charged or received | ||||
directly or
indirectly from persons applying for employment or | ||||
help through said free
employment offices, and any officer or | ||||
employee of the Department of
Employment Security who shall | ||||
accept, directly or indirectly any fee or
compensation from any | ||||
applicant or from his or her representative shall be
guilty of | ||||
a Class C misdemeanor , except that this Section does not | ||||
prohibit referral of an individual to an apprenticeship program | ||||
that is approved by and registered with the United States | ||||
Department of Labor, Bureau of Apprenticeship and Training and | ||||
charges an application fee of $50 or less .
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(Source: P.A. 83-1503.)
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Section 15. The Unemployment Insurance Act is amended by | ||||
changing Sections 206.1, 225, 245, 702, 1402, 2101, 2201, | ||||
2201.1, and 2401 and by adding Sections 502 and 1402.1 as | ||||
follows:
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(820 ILCS 405/206.1)
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Sec. 206.1. Employment; employee leasing company.
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A. For purposes of this Section:
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1. "Client" means an individual or entity which has
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contracted with an employee leasing company to supply it
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with or assume responsibility for personnel management
of | ||
one or more workers to perform services on an on-going | ||
basis rather than
under a temporary help
arrangement, as | ||
defined in Section 15 of the Employee
Leasing Company Act.
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2. "Employee leasing company" means an individual or
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entity which contracts with a client to supply or assume
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responsibility for personnel management of one or more
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workers to perform services for the client on an on-going | ||
basis rather than
under a temporary help
arrangement, as | ||
defined in Section 15 of the Employee
Leasing Company Act.
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B. Subject to subsection C, services performed by an
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individual under a contract between an employee leasing
company | ||
and client, including but not limited to services
performed in | ||
the capacity of a corporate officer of the
client, are services | ||
in "employment" of the employee
leasing company and are not | ||
services in "employment" of
the client if all of the following | ||
conditions are met:
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1. The employee leasing company pays the individual
for | ||
the services directly from its own accounts; and
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2. The employee leasing company, exclusively or in
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conjunction with the client, retains the right to direct
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and control the individual in the performance of the
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services; and
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3. The employee leasing company, exclusively or in
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conjunction with the client, retains the right to hire
and | ||
terminate the individual; and
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4. The employee leasing company reports each client in | ||
the manner the
Director prescribes by regulation ; and . | ||
5. The employee leasing company has provided, and there | ||
remains in effect, such irrevocable indemnification, as | ||
the Director may require by rule, to create a primary | ||
obligation on the part of the provider to the Illinois | ||
Department of Employment Security for obligations of the | ||
employee leasing company accrued and final under this Act. | ||
The rule may prescribe the form the indemnification shall | ||
take including, but not limited to, a surety bond or an | ||
irrevocable standby letter of credit. The obligation | ||
required pursuant to the rule shall not exceed $1,000,000.
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C. Notwithstanding subsection B, services performed by
an | ||
individual under a contract between an employee leasing
company | ||
and client, including but not limited to services
performed in | ||
the capacity of a corporate officer of the
client, are services | ||
in "employment" of the client and are
not services in | ||
"employment" of the employee leasing
company if:
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1. The contribution rate, or, where applicable, the
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amended contribution rate, of the client is greater than
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the sum of the fund building rate established for the
year | ||
pursuant to Section 1506.3 of this Act plus the
greater of | ||
2.7% or 2.7% times the adjusted state
experience factor for | ||
the year; and
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2. The contribution rate, or, where applicable, the
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amended contribution rate, of the employee leasing
company | ||
is less than the contribution rate, or, where
applicable, | ||
the amended contribution rate of the client
by more than | ||
1.5% absolute.
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D. Except as provided in this Section and
notwithstanding | ||
any other provision of this Act to the
contrary, services | ||
performed by an individual under a
contract between an employee | ||
leasing company and client,
including but not limited to | ||
services performed in the
capacity of a corporate officer of | ||
the client, are services
in "employment" of the client and are | ||
not services in
"employment" of the employee leasing company.
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E. Nothing in this Section shall be construed or used to | ||
effect the
existence of an employment relationship other than | ||
for purposes of this Act.
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(Source: P.A. 91-890, eff. 7-6-00.)
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(820 ILCS 405/225) (from Ch. 48, par. 335)
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Sec. 225.
This Section, and not Section 212 of this Act, | ||
controls the determination of employment status
for services | ||
performed by individuals in the delivery or distribution of | ||
newspapers or shopping news. |
(A) The term "employment" shall not include services | ||
performed
by an
individual under the age of eighteen in the | ||
delivery or distribution of
newspapers or shopping news.
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(B) The term "employment" does not include the performance | ||
of
freelance editorial or photographic work for a newspaper.
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(B-5) The employment status of individuals engaged in the | ||
delivery of newspapers or shopping news shall
be determined as | ||
provided in this subsection. The term "employment" does not | ||
include the delivery or
distribution of newspapers or shopping | ||
news if at least one of the following 4 elements is present: | ||
(1) The individual performing the services gains the | ||
profits and bears the losses of the
services. | ||
(2) The person or firm for whom the services are | ||
performed does not represent the
individual as an employee | ||
to its customers. | ||
(3) The individual hires his or her own helpers or | ||
employees, without the need for
approval from the person or | ||
firm for whom the services are performed, and
pays them | ||
without reimbursement from that person or firm. | ||
(4) Once the individual leaves the premises of the | ||
person or firm for whom the
services are performed or the | ||
printing plant, the individual operates free from
the | ||
direction and control of the person or firm, except as is | ||
necessary for the
person or firm to ensure quality control | ||
of the newspapers or shopping news,
including, but not | ||
limited to, the condition of the newspapers or shopping
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news upon delivery and the location and timing of delivery | ||
of the newspapers
or shopping news. | ||
(C) Notwithstanding subsection (B-5), the The term | ||
"employment" does not include the delivery or distribution of
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newspapers or shopping news to the ultimate consumer if:
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(1) substantially all of the remuneration for the | ||
performance of the
services is directly related to sales, | ||
"per piece" fees, or other output,
rather than to the | ||
number of hours worked; and
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(2) the services are performed under a written contract | ||
between the
individual and the person or firm for whom the | ||
services are performed, and
the contract provides that the | ||
individual will not be treated as an
employee for federal | ||
tax purposes.
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(3) Delivery or distribution to the ultimate consumer | ||
does not include:
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(i) delivery or distribution for sale or resale, | ||
including, but not
limited to, distribution to a | ||
newsrack or newsbox, salesperson, newsstand
or retail | ||
establishment;
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(ii) distribution for further distribution, | ||
regardless of subsequent sale or resale.
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(D) Subsections (B-5) and Subsection (C) shall not apply in | ||
the case of any individual who
provides delivery or | ||
distribution services for a newspaper pursuant to the
terms of | ||
a collective bargaining agreement and shall not be construed to
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alter or amend the application or interpretation of any | ||
existing collective
bargaining agreement. Further, subsections | ||
(B-5) and subsection (C) shall not be construed as
evidence of | ||
the existence or non-existence of an employment relationship
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under any other Sections of this Act or
other existing laws.
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(E) Subsections (B) , (B-5), and (C) shall not apply to | ||
services that are required
to be covered as a condition of | ||
approval of this Act by the United States
Secretary of Labor | ||
under Section 3304 (a)(6)(A) of the Federal Unemployment Tax
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Act.
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(Source: P.A. 87-1178.)
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(820 ILCS 405/245) (from Ch. 48, par. 370)
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Sec. 245. Coordination with Federal Unemployment Tax Act. | ||
Notwithstanding any provisions of this Act to the contrary, | ||
excepting
the exemptions from the definition of employment | ||
contained in Sections
212.1, 217.1, 217.2, 226, and 231 and | ||
subsections (B), (B-5), and (C) B and C of Section 225:
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A. The term "employer" includes any employing unit which is | ||
an
"employer" under the provisions of the Federal Unemployment | ||
Tax Act, or
which is required, pursuant to such Act, to be an | ||
"employer" under this Act
as a condition for the Federal | ||
approval of this Act requisite to the full
tax credit, against | ||
the tax imposed by the Federal Act, for contributions
paid by | ||
employers pursuant to this Act.
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B. The term "employment" includes any services performed |
within the
State which constitute "employment" under the | ||
provisions of the Federal
Unemployment Tax Act, or which are | ||
required, pursuant to such Act, to be
"employment" under this | ||
Act as a condition for the Federal approval of this
Act | ||
requisite to the full tax credit, against the tax imposed by | ||
the
Federal Act, for contributions paid by employers pursuant | ||
to this Act.
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C. The term "wages" includes any remuneration for services | ||
performed
within this State which is subject to the payment of | ||
taxes under the
provisions of the Federal Unemployment Tax Act.
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(Source: P.A. 89-252, eff. 8-8-95; 89-649, eff. 8-9-96.)
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(820 ILCS 405/502 new) | ||
Sec. 502. Eligibility for benefits under the Short-Time | ||
Compensation Program. | ||
A. The Director may by rule establish a short-time | ||
compensation program consistent with this Section. No | ||
short-time compensation shall be payable except as authorized | ||
by rule. | ||
B. As used in this Section: | ||
"Affected unit" means a specified plant, department, | ||
shift, or other definable unit that includes 2 or more workers | ||
to which an approved short-time compensation plan applies. | ||
"Health and retirement benefits" means employer-provided | ||
health benefits and retirement benefits under a defined benefit | ||
pension plan (as defined in Section 414(j) of the Internal |
Revenue Code) or contributions under a defined contribution | ||
plan (defined in Section 414(i) of the Internal Revenue Code), | ||
which are incidents of employment in addition to the cash | ||
remuneration earned. | ||
"Short-time compensation" means the unemployment benefits | ||
payable to employees in an affected unit under an approved | ||
short-time compensation plan, as distinguished from the | ||
unemployment benefits otherwise payable under this Act. | ||
"Short-time compensation plan" means a plan submitted by an | ||
employer, for approval by the Director, under which the | ||
employer requests the payment of short-time compensation to | ||
workers in an affected unit of the employer to avert layoffs. | ||
"Usual weekly hours of work" means the usual hours of work | ||
for full-time or part-time employees in the affected unit when | ||
that unit is operating on its regular basis, not to exceed 40 | ||
hours and not including hours of overtime work. | ||
"Unemployment insurance" means the unemployment benefits | ||
payable under this Act other than short-time compensation and | ||
includes any amounts payable pursuant to an agreement under any | ||
Federal law providing for compensation, assistance, or | ||
allowances with respect to unemployment. | ||
C. An employer wishing to participate in the short-time | ||
compensation program shall submit a signed written short-time | ||
compensation plan to the Director for approval. The Director | ||
shall develop an application form to request approval of a | ||
short-time compensation plan and an approval process. The |
application shall include: | ||
1. The employer's unemployment insurance account | ||
number, the affected unit covered by the plan, including | ||
the number of full-time or part-time workers in such unit, | ||
the percentage of workers in the affected unit covered by | ||
the plan, identification of each individual employee in the | ||
affected unit by name and social security number, and any | ||
other information required by the Director to identify plan | ||
participants. | ||
2. A description of how workers in the affected unit | ||
will be notified of the employer's participation in the | ||
short-time compensation plan if such application is | ||
approved, including how the employer will notify those | ||
workers in a collective bargaining unit as well as any | ||
workers in the affected unit who are not in a collective | ||
bargaining unit. If the employer will not provide advance | ||
notice to workers in the affected unit, the employer shall | ||
explain in a statement in the application why it is not | ||
feasible to provide such notice. | ||
3. The employer's certification that it has the | ||
approval of the plan from all collective bargaining | ||
representatives of employees in the affected unit and has | ||
notified all employees in the affected unit who are not in | ||
a collective bargaining unit of the plan. | ||
4. The employer's certification that it will not hire | ||
additional part-time or full-time employees for, or |
transfer employees to, the affected unit, while the program | ||
is in operation. | ||
5. A requirement that the employer identify the usual | ||
weekly hours of work for employees in the affected unit and | ||
the specific percentage by which their hours will be | ||
reduced during all weeks covered by the plan. An | ||
application shall specify the percentage of reduction for | ||
which a short-time compensation application may be | ||
approved which shall be not less than 20% and not more than | ||
60%. If the plan includes any week for which the employer | ||
regularly provides no work (due to a holiday or other plant | ||
closing), then such week shall be identified in the | ||
application. | ||
6. Certification by the employer that, if the employer | ||
provides health and retirement benefits to any employee | ||
whose usual weekly hours of work are reduced under the | ||
program, such benefits will continue to be provided to the | ||
employee participating in the short-time compensation | ||
program under the same terms and conditions as though the | ||
usual weekly hours of work of such employee had not been | ||
reduced or to the same extent as other employees not | ||
participating in the short-time compensation program. For | ||
defined benefit retirement plans, the hours that are | ||
reduced under the short-time compensation plan shall be | ||
credited for purposes of participation, vesting, and | ||
accrual of benefits as though the usual weekly hours of |
work had not been reduced. The dollar amount of employer | ||
contributions to a defined contribution plan that are based | ||
on a percentage of compensation may be less due to the | ||
reduction in the employee's compensation. Notwithstanding | ||
any other provision to the contrary, a certification that a | ||
reduction in health and retirement benefits is scheduled to | ||
occur during the duration of the plan and will be | ||
applicable equally to employees who are not participating | ||
in the short-time compensation program and to those | ||
employees who are participating satisfies this paragraph. | ||
7. Certification by the employer that the aggregate | ||
reduction in work hours is in lieu of layoffs (temporary or | ||
permanent layoffs, or both). The application shall include | ||
an estimate of the number of workers who would have been | ||
laid off in the absence of the short-time compensation | ||
plan. | ||
8. Agreement by the employer to: furnish reports to the | ||
Director relating to the proper conduct of the plan; allow | ||
the Director or his or her authorized representatives | ||
access to all records necessary to approve or disapprove | ||
the plan application, and after approval of a plan, to | ||
monitor and evaluate the plan; and follow any other | ||
directives the Director deems necessary for the agency to | ||
implement the plan and which are consistent with the | ||
requirements for plan applications. | ||
9. Certification by the employer that participation in |
the short-time compensation plan and its implementation is | ||
consistent with the employer's obligations under | ||
applicable Federal and Illinois laws. | ||
10. The effective date and duration of the plan, which | ||
shall expire no later than the end of the 12th full | ||
calendar month after the effective date. | ||
11. Any other provision added to the application by the | ||
Director that the United States Secretary of Labor | ||
determines to be appropriate for purposes of a short-time | ||
compensation program. | ||
D. The Director shall approve or disapprove a short-time | ||
compensation plan in writing within 45 days of its receipt and | ||
promptly communicate the decision to the employer. A decision | ||
disapproving the plan shall clearly identify the reasons for | ||
the disapproval. The disapproval shall be final, but the | ||
employer shall be allowed to submit another short-time | ||
compensation plan for approval not earlier than 30 days from | ||
the date of the disapproval. | ||
E. The short-time compensation plan shall be effective on | ||
the mutually agreed upon date by the employer and the Director, | ||
which shall be specified in the notice of approval to the | ||
employer. The plan shall expire on the date specified in the | ||
notice of approval, which shall be mutually agreed on by the | ||
employer and Director but no later than the end of the 12th | ||
full calendar month after its effective date. However, if a | ||
short-time compensation plan is revoked by the Director, the |
plan shall terminate on the date specified in the Director's | ||
written order of revocation. An employer may terminate a | ||
short-time compensation plan at any time upon written notice to | ||
the Director. Upon receipt of such notice from the employer, | ||
the Director shall promptly notify each member of the affected | ||
unit of the termination date. An employer may submit a new | ||
application to participate in another short-time compensation | ||
plan at any time after the expiration or termination date. | ||
F. The Director may revoke approval of a short-time | ||
compensation plan for good cause at any time, including upon | ||
the request of any of the affected unit's employees or their | ||
collective bargaining representative. The revocation order | ||
shall be in writing and shall specify the reasons for the | ||
revocation and the date the revocation is effective. The | ||
Director may periodically review the operation of each | ||
employer's short-time compensation plan to assure that no good | ||
cause exists for revocation of the approval of the plan. Good | ||
cause shall include, but not be limited to, failure to comply | ||
with the assurances given in the plan, termination of the | ||
approval of the plan by a collective bargaining representative | ||
of employees in the affected unit, unreasonable revision of | ||
productivity standards for the affected unit, conduct or | ||
occurrences tending to defeat the intent and effective | ||
operation of the short-time compensation plan, and violation of | ||
any criteria on which approval of the plan was based. | ||
G. An employer may request a modification of an approved |
plan by filing a written request to the Director. The request | ||
shall identify the specific provisions proposed to be modified | ||
and provide an explanation of why the proposed modification is | ||
appropriate for the short-time compensation plan. The Director | ||
shall approve or disapprove the proposed modification in | ||
writing within 30 days of receipt and promptly communicate the | ||
decision to the employer. The Director, in his or her | ||
discretion, may approve a request for modification of the plan | ||
based on conditions that have changed since the plan was | ||
approved provided that the modification is consistent with and | ||
supports the purposes for which the plan was initially | ||
approved. A modification may not extend the expiration date of | ||
the original plan, and the Director must promptly notify the | ||
employer whether the plan modification has been approved and, | ||
if approved, the effective date of modification. An employer is | ||
not required to request approval of plan modification from the | ||
Director if the change is not substantial, but the employer | ||
must report every change to plan to the Director promptly and | ||
in writing. The Director may terminate an employer's plan if | ||
the employer fails to meet this reporting requirement. If the | ||
Director determines that the reported change is substantial, | ||
the Director shall require the employer to request a | ||
modification to the plan. | ||
H. An individual is eligible to receive short-time | ||
compensation with respect to any week only if the individual is | ||
eligible for unemployment insurance pursuant to subsection E of |
Section 500, not otherwise disqualified for unemployment | ||
insurance, and: | ||
1. During the week, the individual is employed as a | ||
member of an affected unit under an approved short-time | ||
compensation plan, which was approved prior to that week, | ||
and the plan is in effect with respect to the week for | ||
which short-time compensation is claimed. | ||
2. Notwithstanding any other provision of this Act | ||
relating to availability for work and actively seeking | ||
work, the individual is available for the individual's | ||
usual hours of work with the short-time compensation | ||
employer, which may include, for purposes of this Section, | ||
participating in training to enhance job skills that is | ||
approved by the Director, including but not limited to as | ||
employer-sponsored training or training funded under the | ||
Workforce Investment Act of 1998. | ||
3. Notwithstanding any other provision of law, an | ||
individual covered by a short-time compensation plan is | ||
deemed unemployed in any week during the duration of such | ||
plan if the individual's remuneration as an employee in an | ||
affected unit is reduced based on a reduction of the | ||
individual's usual weekly hours of work under an approved | ||
short-time compensation plan. | ||
I. The short-time compensation weekly benefit amount shall | ||
be the product of the percentage of reduction in the | ||
individual's usual weekly hours of work multiplied by the sum |
of the regular weekly benefit amount for a week of total | ||
unemployment plus any applicable dependent allowance pursuant | ||
to subsection C of Section 401. | ||
1. An individual may be eligible for short-time | ||
compensation or unemployment insurance, as appropriate, | ||
except that no individual shall be eligible for combined | ||
benefits (excluding any payments attributable to a | ||
dependent allowance pursuant to subsection C of Section | ||
401) in any benefit year in an amount more than the maximum | ||
benefit amount, nor shall an individual be paid short-time | ||
compensation benefits for more than 52 weeks under a | ||
short-time compensation plan. | ||
2. The short-time compensation paid to an individual | ||
(excluding any payments attributable to a dependent | ||
allowance pursuant to subsection C of Section 401) shall be | ||
deducted from the maximum benefit amount established for | ||
that individual's benefit year. | ||
3. Provisions applicable to unemployment insurance | ||
claimants shall apply to short-time compensation claimants | ||
to the extent that they are not inconsistent with | ||
short-time compensation provisions. An individual who | ||
files an initial claim for short-time compensation | ||
benefits shall receive a monetary determination. | ||
4. The following provisions apply to individuals who | ||
work for both a short-time compensation employer and | ||
another employer during weeks covered by the approved |
short-time compensation plan: | ||
i. If combined hours of work in a week for both | ||
employers do not result in a reduction of at least 20% | ||
of the usual weekly hours of work with the short-time | ||
compensation employer, the individual shall not be | ||
entitled to benefits under this Section. | ||
ii. If combined hours of work for both employers | ||
results in a reduction equal to or greater than 20% of | ||
the usual weekly hours of work for the short-time | ||
compensation employer, the short-time compensation | ||
benefit amount payable to the individual is reduced for | ||
that week and is determined by multiplying the | ||
percentage by which the combined hours of work have | ||
been reduced by the sum of the weekly benefit amount | ||
for a week of total unemployment plus any applicable | ||
dependent allowance pursuant to subsection C of | ||
Section 401. A week for which benefits are paid under | ||
this subparagraph shall be reported as a week of | ||
short-time compensation. | ||
iii. If an individual worked the reduced | ||
percentage of the usual weekly hours of work for the | ||
short-time compensation employer and is available for | ||
all his or her usual hours of work with the short-time | ||
compensation employer, and the individual did not work | ||
any hours for the other employer either because of the | ||
lack of work with that employer or because the |
individual is excused from work with the other | ||
employer, the individual shall be eligible for | ||
short-time compensation for that week. The benefit | ||
amount for such week shall be calculated as provided in | ||
the introductory clause of this subsection I. | ||
iv. An individual who is not provided any work | ||
during a week by the short-time compensation employer, | ||
or any other employer, and who is otherwise eligible | ||
for unemployment insurance shall be eligible for the | ||
amount of regular unemployment insurance determined | ||
without regard to this Section. | ||
v. An individual who is not provided any work by | ||
the short-time compensation employer during a week, | ||
but who works for another employer and is otherwise | ||
eligible may be paid unemployment insurance for that | ||
week subject to the disqualifying income and other | ||
provisions applicable to claims for regular | ||
unemployment insurance. | ||
J. Short-time compensation shall be charged to employers in | ||
the same manner as unemployment insurance is charged under | ||
Illinois law. Employers liable for payments in lieu of | ||
contributions shall have short-time compensation attributed to | ||
service in their employ in the same manner as unemployment | ||
insurance is attributed. Notwithstanding any other provision | ||
to the contrary, to the extent that short-term compensation | ||
payments under this Section are reimbursed by the federal |
government, no benefit charges or payments in lieu of | ||
contributions shall be accrued by a participating employer. | ||
K. A short-time compensation plan shall not be approved for | ||
an employer that is delinquent in the filing of any reports | ||
required or the payment of contributions, payments in lieu of | ||
contributions, interest, or penalties due under this Act | ||
through the date of the employer's application. | ||
L. Overpayments of other benefits under this Act may be | ||
recovered from an individual receiving short-time compensation | ||
under this Act in the manner provided under Sections 900 and | ||
901. Overpayments under the short-time compensation plan may be | ||
recovered from an individual receiving other benefits under | ||
this Act in the manner provided under Sections 900 and 901. | ||
M. An individual who has received all of the short-time | ||
compensation or combined unemployment insurance and short-time | ||
compensation available in a benefit year shall be considered an | ||
exhaustee for purposes of extended benefits, as provided under | ||
the provisions of Section 409, and, if otherwise eligible under | ||
those provisions, shall be eligible to receive extended | ||
benefits.
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(820 ILCS 405/702) (from Ch. 48, par. 452)
| ||
Sec. 702. Determinations. The claims adjudicator shall for | ||
each week
with respect to which the claimant claims benefits or | ||
waiting period
credit, make a "determination" which shall state | ||
whether or not the
claimant is eligible for such benefits or |
waiting period credit and the
sum to be paid the claimant with | ||
respect to such week. The claims
adjudicator shall promptly | ||
notify the claimant and such employing unit
as shall, within | ||
the time and in the manner prescribed by the Director,
have | ||
filed a sufficient allegation that the claimant is ineligible | ||
to
receive benefits or waiting period credit for said week, of | ||
his
"determination" and the reasons therefor. The Director may, | ||
by rule adopted with the advice and aid of the Employment | ||
Security Advisory Board, require that an employing unit with 25 | ||
50 or more individuals in its employ during a the prior | ||
calendar year, or an entity representing 5 or more employing | ||
units during a the prior calendar year, file an allegation of | ||
ineligibility electronically in a manner prescribed by the | ||
Director for the one year period commencing on July 1 of the | ||
immediately succeeding calendar year and ending on June 30 of | ||
the second succeeding calendar year . In making his
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"determination," the claims adjudicator shall give | ||
consideration to the
information, if any, contained in the | ||
employing unit's allegation,
whether or not the allegation is | ||
sufficient. The claims adjudicator
shall deem an employing | ||
unit's allegation sufficient only if it contains
a reason or | ||
reasons therefor (other than general conclusions of
law, and | ||
statements such as "not actively seeking work" or "not | ||
available
for work" shall be deemed, for this purpose, to be | ||
conclusions of law).
If the claims adjudicator deems an | ||
allegation insufficient, he shall make a
decision accordingly, |
and shall notify the employing unit of such
decision and the | ||
reasons therefor. Such decision may be appealed by the
| ||
employing unit to a Referee within the time limits prescribed | ||
by Section
800 for appeal from a "determination". Any such | ||
appeal, and any appeal
from the Referee's decision thereon, | ||
shall be governed by the applicable
provisions of Sections 801, | ||
803, 804 and 805.
| ||
(Source: P.A. 97-621, eff. 11-18-11.)
| ||
(820 ILCS 405/1402) (from Ch. 48, par. 552)
| ||
Sec. 1402. Penalties. | ||
A. If any employer fails, within the time prescribed in | ||
this Act as
amended and in effect on October 5, 1980, and the | ||
regulations of the
Director, to file a report of wages paid to | ||
each of his workers, or to file
a sufficient report of such | ||
wages after having been notified by the
Director to do so, for | ||
any period which begins prior to January 1, 1982, he
shall pay | ||
to the Department as a penalty a sum determined in accordance | ||
with
the provisions of this Act as amended and in effect on | ||
October 5, 1980.
| ||
B. Except as otherwise provided in this Section, any | ||
employer who
fails to file a report of wages paid to each of | ||
his
workers for any period which begins on or after January 1, | ||
1982, within the
time prescribed by the provisions of this Act | ||
and the regulations of the
Director, or, if the Director | ||
pursuant to such regulations extends the time
for filing the |
report, fails to file it within the extended time, shall, in
| ||
addition to any sum otherwise payable by him under the | ||
provisions of this
Act, pay to the Department as a penalty a | ||
sum equal to the lesser of (1) $5
for each $10,000 or fraction | ||
thereof of the total wages for insured work
paid by him during | ||
the period or (2) $2,500, for each month
or part thereof of | ||
such failure to file the report. With respect to an employer | ||
who has elected to file reports of wages on an annual basis | ||
pursuant to Section 1400.2, in assessing penalties for the | ||
failure to submit all reports by the due date established | ||
pursuant to that Section, the 30-day period immediately | ||
following the due date shall be considered as one month.
| ||
If the Director deems an employer's report of wages paid to | ||
each of his
workers for any period which begins on or after | ||
January 1, 1982,
insufficient, he shall notify the employer to | ||
file a sufficient report. If
the employer fails to file such | ||
sufficient report within 30 days after the
mailing of the | ||
notice to him, he shall, in addition to any sum otherwise
| ||
payable by him under the provisions of this Act, pay to the | ||
Department as a
penalty a sum determined in accordance with the | ||
provisions of the first
paragraph of this subsection, for each | ||
month or part thereof of such
failure to file such sufficient | ||
report after the date of the notice.
| ||
For wages paid in calendar years prior to 1988, the penalty | ||
or
penalties which accrue under the two foregoing paragraphs
| ||
with respect to a report for any period shall not be less than |
$100, and
shall not exceed the lesser of
(1) $10 for each | ||
$10,000 or fraction thereof
of the total wages for insured work | ||
paid during the period or (2) $5,000.
For wages paid in | ||
calendar years after 1987, the penalty or penalties which
| ||
accrue under the 2 foregoing paragraphs with respect to a | ||
report for any
period shall not be less than $50, and shall not | ||
exceed the lesser of (1)
$10 for each $10,000 or fraction of | ||
the total wages for insured work
paid during the period or (2) | ||
$5,000.
With respect to an employer who has elected to file | ||
reports of wages on an annual basis pursuant to Section 1400.2, | ||
for purposes of calculating the minimum penalty prescribed by | ||
this Section for failure to file the reports on a timely basis, | ||
a calendar year shall constitute a single period. For reports | ||
of wages paid after 1986, the Director shall not,
however, | ||
impose a penalty pursuant to either of the two foregoing
| ||
paragraphs on any employer who can prove within 30 working days | ||
after the
mailing of a notice of his failure to file such a | ||
report, that (1) the
failure to file the report is his first | ||
such failure during the previous 20
consecutive calendar | ||
quarters, and (2) the amount of the total
contributions due for | ||
the calendar quarter of such report (or, in the case of an | ||
employer who is required to file the reports on a monthly | ||
basis, the amount of the total contributions due for the | ||
calendar quarter that includes the month of such report) is | ||
less than $500.
| ||
For any month which begins on or after January 1, 2013, a |
report of the wages paid to each of an employer's workers shall | ||
be due on or before the last day of the month next following | ||
the calendar month in which the wages were paid if the employer | ||
is required to report such wages electronically pursuant to the | ||
regulations of the Director; otherwise a report of the wages | ||
paid to each of the employer's workers shall be due on or | ||
before the last day of the month next following the calendar | ||
quarter in which the wages were paid. | ||
Any employer who willfully wilfully fails to pay any | ||
contribution or part
thereof, based upon wages paid prior to | ||
1987,
when required by the provisions of this Act and the | ||
regulations of the
Director, with intent to defraud the | ||
Director, shall in addition to such
contribution or part | ||
thereof pay to the Department a penalty equal to 50 percent
of | ||
the amount of such contribution or part thereof, as the case | ||
may
be, provided that the penalty shall not be less than $200.
| ||
Any employer who willfully fails to pay any contribution or | ||
part
thereof, based upon wages paid in 1987 and in each | ||
calendar year
thereafter, when required by the
provisions of | ||
this Act and the regulations of the Director, with intent to
| ||
defraud the Director, shall in addition to such contribution or | ||
part
thereof pay to the Department a penalty equal to 60% of | ||
the amount of such
contribution or part thereof, as the case | ||
may be, provided that the penalty
shall not be less than $400.
| ||
However, all or part of any penalty may be waived by the | ||
Director for
good cause shown.
|
C. With regard to an employer required to report monthly | ||
pursuant to this Section, in addition to each employee's name, | ||
social security number, and wages for insured work paid during | ||
the period, the Director may, by rule, require a report to | ||
provide the following information concerning each employee: | ||
the employee's occupation, hours worked during the period, | ||
hourly wage, if applicable, and work location if the employer | ||
has more than one physical location. Notwithstanding any other | ||
provision of any other law to the contrary, information | ||
obtained pursuant to this subsection shall not be disclosed to | ||
any other public official or agency of this State or any other | ||
state to the extent it relates to a specifically identified | ||
individual or entity or to the extent that the identity of a | ||
specific individual or entity may be discerned from such | ||
information. The additional data elements required to be | ||
reported pursuant to the rule authorized by this subsection may | ||
be reported in the same electronic format as in the system | ||
maintained by the employer or employer's agent and need not be | ||
reformatted. | ||
(Source: P.A. 97-689, eff. 6-14-12; 97-791, eff. 1-1-13; | ||
98-463, eff. 8-16-13.)
| ||
(820 ILCS 405/1402.1 new) | ||
Sec. 1402.1. Processing fee. | ||
A. The Director may, by rule, establish a processing fee of | ||
$50 with regard to a report of contributions due that is not |
required to be submitted electronically if the employer fails | ||
to submit the report on the form designated by the Director or | ||
otherwise provide all of the information required by the form | ||
designated by the Director. With respect to the first instance | ||
of such a failure after the effective date of the rule, the | ||
Director shall issue the employer a written warning instead of | ||
a processing fee, and no such processing fee shall be assessed | ||
unless the Director has issued the employer a written warning | ||
for a prior failure. | ||
B. The Director may, by rule, establish a processing fee of | ||
$50 with regard to any payment of contributions, payment in | ||
lieu of contributions, interest, or penalty that is not made | ||
through electronic funds transfer if the employer fails to | ||
enclose the payment coupon provided by the Director with its | ||
payment or otherwise provide all of the information the coupon | ||
would provide, regardless of the amount due. With respect to | ||
the first instance of such a failure after the effective date | ||
of the rule, the Director shall issue the employer a written | ||
warning instead of a processing fee, and no such processing fee | ||
shall be assessed unless the Director has issued the employer a | ||
written warning for a prior failure.
| ||
(820 ILCS 405/2101) (from Ch. 48, par. 661)
| ||
Sec. 2101. Special administrative account. Except as | ||
provided in Section 2100, all interest and penalties collected
| ||
pursuant to this Act shall be deposited in the special |
administrative
account. The amount in this account in excess of | ||
$100,000 on the close of
business of the last day of each | ||
calendar quarter shall be immediately
transferred to this | ||
State's account in the unemployment trust fund. However, | ||
subject to Section 2101.1,
such funds shall not be transferred | ||
where it is determined by the Director
that it is necessary to | ||
accumulate funds in the account in order to have
sufficient | ||
funds to pay interest that may become due under the terms of
| ||
Section 1202 (b) of the Federal Social Security Act, as | ||
amended, upon advances
made to the Illinois Unemployment | ||
Insurance Trust Fund under Title XII of
the Federal Social | ||
Security Act or where it is determined by the Director
that it | ||
is necessary to accumulate funds in the special administrative
| ||
account in order to have sufficient funds to expend for any | ||
other purpose
authorized by this Section. The balance of funds | ||
in the special administrative account that are in excess of | ||
$100,000 on the first day of each calendar quarter and not | ||
transferred to this State's account in the unemployment trust | ||
fund, minus the amount reasonably anticipated to be needed to | ||
make payments from the special administrative account pursuant | ||
to subsections C through I, shall be certified by the Director | ||
and transferred by the State Comptroller to the Title III | ||
Social Security and Employment Fund in the State Treasury | ||
within 30 days of the first day of the calendar quarter. The | ||
Director may certify and the State Comptroller shall transfer | ||
such funds to the Title III Social Security and Employment Fund |
on a more frequent basis. The moneys available in the special
| ||
administrative account shall be expended upon the direction of | ||
the Director
whenever it appears to him that such expenditure | ||
is necessary for:
| ||
A. 1. The proper administration of this Act and no Federal | ||
funds are
available for the specific purpose for which such | ||
expenditure is to be
made, provided the moneys are not | ||
substituted for appropriations from
Federal funds, which in the | ||
absence of such moneys would be available and
provided the | ||
monies are appropriated by the General Assembly.
| ||
2. The proper administration of this Act for which purpose
| ||
appropriations from Federal funds have been requested but not | ||
yet received,
provided the special administrative account will | ||
be reimbursed upon receipt
of the requested Federal | ||
appropriation.
| ||
B. To the extent possible, the repayment to the fund | ||
established for
financing the cost of administration of this | ||
Act of moneys found by the
Secretary of Labor of the United | ||
States of America, or other appropriate
Federal agency, to have | ||
been lost or expended for purposes other than, or
in amounts in | ||
excess of, those found necessary by the Secretary of Labor,
or | ||
other appropriate Federal agency, for the administration of | ||
this Act.
| ||
C. The payment of refunds or adjustments of interest or | ||
penalties, paid
pursuant to Sections 901 or 2201.
| ||
D. The payment of interest on refunds of erroneously paid
|
contributions, penalties and interest pursuant to Section | ||
2201.1.
| ||
E. The payment or transfer of interest or penalties to any | ||
Federal or
State agency, pursuant to reciprocal arrangements | ||
entered into by the
Director under the provisions of Section | ||
2700E.
| ||
F. The payment of any costs incurred, pursuant to Section | ||
1700.1.
| ||
G. Beginning January 1, 1989, for the payment for the legal | ||
services
authorized by subsection B of Section 802, up to | ||
$1,000,000 per year for
the representation of the individual | ||
claimants and up to $1,000,000 per
year for the representation | ||
of "small employers".
| ||
H. The payment of any fees for collecting past due | ||
contributions,
payments in lieu of contributions, penalties, | ||
and interest shall be paid
(without an appropriation) from | ||
interest and penalty monies received from
collection agents | ||
that have contracted with the Department under Section
2206 to | ||
collect such amounts, provided however, that the amount of such
| ||
payment shall not exceed the amount of past due interest and | ||
penalty collected.
| ||
I. The payment of interest that may become due under the | ||
terms of Section
1202 (b) of the Federal Social Security Act, | ||
as amended, for advances made
to the Illinois Unemployment | ||
Insurance Trust Fund.
| ||
The Director shall annually on or before the first day of |
March report
in writing to the Employment Security Advisory | ||
Board concerning the
expenditures made from the special | ||
administrative account and the purposes
for which funds are | ||
being accumulated.
| ||
If Federal legislation is enacted which will permit the use | ||
by the
Director of some part of the contributions collected or | ||
to be collected
under this Act, for the financing of | ||
expenditures incurred in the proper
administration of this Act, | ||
then, upon the availability of such
contributions for such | ||
purpose, the provisions of this Section shall be
inoperative | ||
and interest and penalties collected pursuant to this Act shall
| ||
be deposited in and be deemed a part of the clearing account. | ||
In the event
of the enactment of the foregoing Federal | ||
legislation, and within 90 days
after the date upon which | ||
contributions become available for expenditure
for costs of | ||
administration, the total amount in the special administrative
| ||
account shall be transferred to the clearing account, and after | ||
clearance
thereof shall be deposited with the Secretary of the | ||
Treasury of the United
States of America to the credit of the | ||
account of this State in the
unemployment trust fund, | ||
established and maintained pursuant to the Federal
Social | ||
Security Act, as amended.
| ||
(Source: P.A. 94-1083, eff. 1-19-07.)
| ||
(820 ILCS 405/2201) (from Ch. 48, par. 681)
| ||
Sec. 2201. Refund or adjustment of contributions. Not |
later than 3 years after the date upon which the Director first | ||
notifies any contributions,
interest or penalties thereon were | ||
paid, an employing unit that it which has paid
such | ||
contributions, interest or penalties thereon erroneously, the | ||
employing unit may file a
claim with the Director for an | ||
adjustment thereof in connection with
subsequent contribution | ||
payments, or for a refund thereof where such
adjustment cannot | ||
be made; provided, however, that no refund or adjustment
shall | ||
be made of any contribution, the amount of which has been | ||
determined
and assessed by the Director, if such contribution | ||
was paid after the
determination and assessment of the Director | ||
became final, and provided,
further, that any such adjustment | ||
or refund, involving contributions with
respect to wages on the | ||
basis of which benefits have been paid, shall be
reduced by the | ||
amount of benefits so paid. Upon receipt of a claim the
| ||
Director shall make his determination, either allowing such | ||
claim in whole
or in part, or ordering that it be denied, and | ||
serve notice upon the
claimant of such determination. Such | ||
determination of the Director shall be
final at the expiration | ||
of 20 days from the date of service of such notice
unless the | ||
claimant shall have filed with the Director a written protest
| ||
and a petition for hearing, specifying his objections thereto. | ||
Upon receipt
of such petition within the 20 days allowed, the | ||
Director shall fix the
time and place for a hearing and shall | ||
notify the claimant thereof. At any
hearing held as herein | ||
provided, the determination of the Director shall be
prima |
facie correct and the burden shall be upon the protesting | ||
employing
unit to prove that it is incorrect. All of the | ||
provisions of this Act
applicable to hearings conducted | ||
pursuant to Section 2200 shall be
applicable to hearings | ||
conducted pursuant to this Section. Upon the
conclusion of such | ||
hearing, a decision shall be made by the Director and
notice | ||
thereof given to the claimant. If the Director shall decide | ||
that the
claim be allowed in whole or in part, or if such | ||
allowance be ordered by
the Court pursuant to Section 2205 and | ||
the judgment of said Court has
become final, the Director | ||
shall, if practicable, make adjustment without
interest in | ||
connection with subsequent contribution payments by the
| ||
claimant, and if adjustments thereof cannot practicably be made | ||
in
connection with such subsequent contribution payments, then | ||
the Director
shall refund to the claimant the amount so | ||
allowed, without interest
except as otherwise provided in | ||
Section 2201.1 from
moneys in the benefit account established | ||
by this Act. Nothing herein
contained shall prohibit the | ||
Director from making adjustment or refund upon
his own | ||
initiative, within the time allowed for filing claim therefor,
| ||
provided that the Director shall make no refund or adjustment | ||
of any
contribution, the amount of which he has previously | ||
determined and
assessed, if such contribution was paid after | ||
the determination and
assessment became final.
| ||
If this State should not be certified for any year by the | ||
Secretary of
Labor of the United States of America, or other |
appropriate Federal agency,
under Section 3304 of the Federal | ||
Internal Revenue Code of 1954, the
Director shall refund | ||
without interest to any instrumentality of the United
States | ||
subject to this Act by virtue of permission granted in an Act | ||
of
Congress, the amount of contributions paid by such | ||
instrumentality with
respect to such year.
| ||
The Director may by regulation provide that, if there is a | ||
total credit
balance of less than $2 in an employer's account | ||
with respect to contributions,
interest, and penalties, the | ||
amount may be disregarded by the Director; once
disregarded, | ||
the amount shall not be considered a credit balance in the
| ||
account and shall not be subject to either an adjustment or a | ||
refund.
| ||
(Source: P.A. 90-554, eff. 12-12-97.)
| ||
(820 ILCS 405/2201.1) (from Ch. 48, par. 681.1)
| ||
Sec. 2201.1.
Interest on Overpaid Contributions, Penalties | ||
and
Interest. The Director shall semi-annually quarterly | ||
furnish each employer with a
statement of credit balances in | ||
the employer's account where the balances
with respect to all | ||
contributions, interest and penalties combined equal or
exceed | ||
$2. Under regulations
prescribed by the Director and subject to | ||
the limitations of Section 2201,
the employer may file a | ||
request for an adjustment or refund of the amount
erroneously | ||
paid. Interest shall be paid on refunds of erroneously paid
| ||
contributions, penalties and interest imposed by this Act, |
except that if
any refund is mailed by the Director within 90 | ||
days after the date of the
refund claim, no interest shall be | ||
due or paid. The interest shall begin
to accrue as of the date | ||
of the refund claim and shall be paid at the rate
of 1.5% per | ||
month computed at the rate of 12/365 of 1.5% for each day or
| ||
fraction thereof. Interest paid pursuant to this Section shall | ||
be paid from
monies in the special administrative account | ||
established by Sections 2100
and 2101. This Section shall apply | ||
only to refunds of contributions,
penalties and interest which | ||
were paid as the result of wages paid after
January 1, 1988.
| ||
(Source: P.A. 90-554, eff. 12-12-97.)
| ||
(820 ILCS 405/2401) (from Ch. 48, par. 721)
| ||
(Text of Section after amendment by P.A. 98-107 )
| ||
Sec. 2401. Recording and release of lien. A. The lien | ||
created by Section 2400 shall be invalid only as to any
| ||
innocent purchaser for value of stock in trade of any employer | ||
in the usual
course of such employer's business, and shall be | ||
invalid as to any innocent
purchaser for value of any of the | ||
other assets to which such lien has
attached, unless notice | ||
thereof has been filed by the Director in the
office of the | ||
recorder of the county within which the property
subject to the | ||
lien is situated. The Director may, in his discretion, for
good | ||
cause shown and upon the reimbursement of any recording fees | ||
paid by the Director with respect to the lien , issue a | ||
certificate of withdrawal of notice of lien filed
against any |
employer, which certificate shall be recorded in the same
| ||
manner as herein provided for the recording of notice of liens. | ||
Such
withdrawal of notice of lien shall invalidate such lien as | ||
against any
person acquiring any of such employer's property or | ||
any interest therein,
subsequent to the recordation of the | ||
withdrawal of notice of lien, but
shall not otherwise affect | ||
the validity of such lien, nor shall it prevent
the Director | ||
from re-recording notice of such lien. In the event notice of
| ||
such lien is re-recorded, such notice shall be effective as | ||
against third
persons only as of the date of such | ||
re-recordation.
| ||
B. The recorder of each county shall procure at the expense | ||
of
the county a file labeled "Unemployment Compensation | ||
Contribution Lien
Notice" and an index book labeled | ||
"Unemployment Compensation Contribution
Lien Index." When a | ||
notice of any such lien is presented to him for filing,
he | ||
shall file it in numerical order in the file and shall enter it
| ||
alphabetically in the index. The entry shall show the name and | ||
last known
business address of the employer named in the | ||
notice, the serial number of
the notice, the date and hour of | ||
filing, and the amount of contribution,
interest and penalty | ||
thereon due and unpaid. When a certificate of complete
or | ||
partial release of such lien issued by the Director is | ||
presented for
filing in the office of the recorder where a | ||
notice of lien was
filed, the recorder shall permanently attach | ||
the certificate of release to
the notice of lien and shall |
enter the certificate of release and the date
in the | ||
Unemployment Compensation Contribution Lien Index on the line | ||
where
the notice of lien is entered. In case title to land to | ||
be affected by the
Notice of Lien is registered under the | ||
provisions of "An Act Concerning
Land Titles", approved May 1, | ||
1897, as amended, such notice shall be
filed in the office of | ||
the Registrar of Titles of the county within which
the property | ||
subject to the lien is situated and shall be entered upon the
| ||
register of titles as a memorial or charge upon each folium of | ||
the register
of title affected by such notice, and the Director | ||
shall not have a
preference over the rights of any bona fide | ||
purchaser, mortgagee, judgment
creditor or other lien holder | ||
arising prior to the registration of such
notice.
| ||
C. The Director shall have the power to issue a certificate | ||
of partial
release of any part of the property subject to the | ||
lien , upon the reimbursement of any recording fees paid by the | ||
Director with respect to the lien, if he shall find
that the | ||
fair market value of that part of such property remaining | ||
subject
to the lien is at least equal to the amount of all | ||
prior liens upon such
property plus double the amount of the | ||
liability for contributions,
interest and penalties thereon | ||
remaining unsatisfied.
| ||
D. Where the amount of or the liability for the payment of | ||
any
contribution, interest or penalty is contested by any | ||
employing unit
against whose property a lien has attached, and | ||
the determination of the
Director with reference to such |
contribution has not become final, the
Director may issue a | ||
certificate of release of lien upon the reimbursement of any | ||
recording fees paid by the Director with respect to the lien | ||
and the furnishing of
bond by such employing unit in 125% the | ||
amount of the sum of such
contribution, interest and penalty, | ||
for which lien is claimed, with good
and sufficient surety to | ||
be approved by the Director conditioned upon the
prompt payment | ||
of such contribution, together with interest and penalty
| ||
thereon, by such employing unit to the Director immediately | ||
upon the
decision of the Director in respect to the liability | ||
for such contribution,
interest and penalty becoming final.
| ||
E. When a lien obtained pursuant to this Act has been | ||
satisfied and upon the reimbursement of any recording fees paid | ||
by the Director with respect to the lien , the
Department shall | ||
issue a release to the person, or his agent, against whom
the | ||
lien was obtained and such release shall contain in legible | ||
letters a
statement as follows:
| ||
FOR THE PROTECTION OF THE OWNER, THIS RELEASE SHALL
| ||
BE FILED WITH THE RECORDER OR THE REGISTRAR
| ||
OF TITLES, IN WHOSE OFFICE, THE LIEN WAS FILED.
| ||
F. The Director may, by rule, require, as a condition of | ||
withdrawing, releasing, or partially releasing a lien recorded | ||
pursuant to this Section, that the employer reimburse the | ||
Department for any recording fees paid with respect to the | ||
lien. | ||
(Source: P.A. 98-107, eff. 7-1-14.)
|
(820 ILCS 405/1704.1 rep.)
| ||
Section 20. The Unemployment Insurance Act is amended by | ||
repealing Section 1704.1.
| ||
Section 99. Effective date. This Act takes effect July 1, | ||
2014, except that the changes to Sections 2201 and 2201.1 of | ||
the Unemployment Insurance Act take effect January 1, 2015.
|