Section 100.5  Applicability

 

This Part shall apply to all hearings conducted by this Department of Labor under Section 11a of the Prevailing Wage Act [820 ILCS 130/11a] (the Act) for purposes of debarring a contractor or subcontractor from contracting for public works as defined in the Act for a four year period.  Such debarment is automatic after the contractor or subcontractor has received notice of a second violation of the Act within five years from the date of the notice of first violation, unless within 10 working days after receipt of the notice of a second violation he/she requests a hearing in writing in accordance with this Part.

 

(Source:  Amended at 30 Ill. Reg. 16293, effective September 26, 2006)

 

Section 100.10  Policy

 

All hearings shall be conducted in the most economic, expeditious and reasonable manner that is in accordance with Illinois law and the Department's Rules of Procedure in Administrative Hearings (56 Ill. Adm. Code 120). 

 

(Source:  Amended at 30 Ill. Reg. 16293, effective September 26, 2006)

 

Section 100.20  Applicability

 

(Source:  Renumbered to Section 100.5 at 14 Ill. Reg. 13608, effective August 9, 1990)

 

Section 100.22  Definitions

 

            "Accurate records" means the payroll records required to be filed with the public body in charge of the project as required by Section 5 of the Act.  Accurate records shall also mean the hourly rate paid for fringe benefits, including pension, health and welfare, training and vacations, and a designation of whether such fringe benefits were paid into a fund or paid directly to the employee.

 

"Act" means the Prevailing Wage Act [820 ILCS 130].

 

            "Construction manager" includes, but is not limited to, the contractor, subcontractor or anyone overseeing any project covered by the Act for purposes of the posting requirement.

 

"Contract" means an agreement either written or oral or otherwise as agreed to between the parties.

 

            "Decision" means that the Department has determined that a violation has occurred that warrants the Director or the Director's designee to issue a notice of violation to a contractor or subcontractor. Each specific finding listed in the notice of violation is a separate "Decision" that the Act has been violated.

 

"Director" means the Director of the Illinois Department of Labor or, at the Director's discretion, the Director's designee, deputy or agent.

 

            "Employee", for purposes of the Act and this Part, means laborers, mechanics and other workers employed in any public works, as defined and covered under the Act, by anyone under contracts for public works.

 

           "Employer", for purposes of the Act and this Part, means contractors and/or subcontractors who perform public works projects subject to the Act.

 

            "Notice of second violation" is a notice issued by the Department advising a contractor or subcontractor that a violation as defined in this Section has occurred within five years from the date of the notice of first violation.

 

            "Notice of violation" means the formal written notice to a contractor or subcontractor that the Department has made a decision that the contractor or subcontractor has violated the Act.

 

            "Prevailing hourly rate of wages" means the hourly cash wages plus fringe benefits for health and welfare, insurance, training, vacations and pensions paid most frequently (numerically most occurring), in the county in which the public works is performed, to employees engaged on public works, as determined by the public body awarding the contract or the most recent revision as determined by the Department of Labor effective prior to the date when the contract was let for bids or, if not let for bids, when executed; and all revisions by the Illinois Department of Labor when effected.

 

            "Violation" means a written decision by the Department that a contractor or subcontractor has:  failed or refused to pay the prevailing wage to one or more laborers, workers, or mechanics under a single contract or subcontract as required by Section 3 of the Act; failed to keep accurate records as required by the Act or this Part; failed to produce to the Department accurate records or records not in compliance with the provisions of Section 6 of the Act; refused to submit records to the Department in response to a subpoena issued in accordance with Section 10 of the Act; refused to comply with the certified payroll provision of Section 5 of the Act; refused the Department access, at any reasonable hour or at any location designated by the Department, to inspect the contractor's or subcontractor's certified records and other records as required by the Act or this Part; failed to insert into each subcontract or lower tiered subcontract and into the project specifications for each subcontract or lower tiered subcontract a written stipulation that not less than the prevailing rate of wages be paid as required by Section 4 of the Act; or the contractor failed to obtain a bond that guarantees the faithful performance of the prevailing wage clause in the contract.  A violation also means a written decision by the Department that a contractor or construction manager failed to post at a location on the project site of the public works the prevailing wage rates as required by Section 4 of the Act.

 

(Source:  Amended at 30 Ill. Reg. 16293, effective September 26, 2006)

 

Section 100.24  Notice of Violation

 

a)         After receipt of a complaint or on the Department's initiative, the Director  shall review the investigative file to determine whether there has been a violation or violations of which the contractor or subcontractor must be given notice.  All information and observations made during an audit, investigation or survey shall be considered and shall constitute the basis for the Department's decision that the Act has been violated and that a notice of violation shall be issued.  The notice of violation shall identify the specific violations of the Act.

 

b)         The notice of violation shall state the amount of monies estimated due by the Department to be in controversy based on reasons contained in the investigation file.

 

c)         In making a decision that a contractor or subcontractor has failed to allow the Director access to accurate payroll records, the Director shall rely on the information contained in the investigative file, the certified payroll records filed with the public body in charge of the project or any other information and shall assess a separate violation for each day worked by each worker on the subject project. Each decision of a separate violation under Section 5 of the Act shall be listed in the notice of violation.

 

d)         In deciding that the Act has been violated and that the issuance of a notice of violation is required, the Director  shall base the decision on one or any combination of the following reasons:

 

1)         The severity of the violations. The Director will consider the following:

 

A)        The amount of wages that are determined to be underpaid pursuant to the Act.

 

B)        The activity or conduct complained of violates the requirements of the statute and was not merely a technical, non-substantive error.  Examples of a technical error include, but are not limited to, a mathematical error, bookkeeping error, transposition of numbers, or computer or programming error.

 

2)         The nature and duration of the present violations as well as prior history of the contractor or the subcontractor related to the Act.  The prior history considered cannot exceed seven years before the date of the second notice of violation.

           

3)         Whether the contractor or subcontractor filed certified payroll records with the public body in charge of the project; whether the contractor or subcontractor has kept the payroll records and accurate records for 3 years; whether the contractor or subcontractor produced certified payroll records in accordance with Section 5 of the Act.

 

4)         Whether the contractor or subcontractor has violated any other provision of the Act.

 

e)         The notices of the first and second violations shall be sent by the Department by certified mail, deposited in the United States mail, postage prepaid, addressed to the last known address of the persons, partnerships, associations, or corporations involved.  Said notices shall contain a reference to the specific Sections of the Act or this Part alleged to have been violated; identify the particular public works project involved; the conduct complained of; an identification as to first or second notice and a statement of remedies available to the contractor or subcontractor and Department.

 

(Source:  Amended at 30 Ill. Reg. 16293, effective September 26, 2006)

 

Section 100.26  Initiation of Hearing

 

a)         Request for Hearing for Notice of Second Violation.  A hearing shall be initiated upon the request of a contractor or subcontractor after he/she has received the notice of a second violation of the Act within five years from the date of the notice of first violation.  Such request must be in writing and mailed by certified mail or delivered in person to the Department within 10 working days after receipt of the notice of the second violation.  Failure to request a hearing as required by this Section will result in the contractor or subcontractor, its directors, officers, agents, representatives or other controlling persons acting through or on their behalf from being awarded any contracts for public works for four years.

 

b)         Hearings shall be conducted pursuant to the Department's Rules of Procedure in Administrative Hearings (56 Ill. Adm. Code 120).

 

(Source:  Amended at 30 Ill. Reg. 16293, effective September 26, 2006)

 

Section 100.28  Debarments

 

A two year debarment period applies when the violation or violations that form the basis for either one or both of the notices of violation occurred prior to January 1, 2006.  A four year debarment applies when the violation or violations that form the basis for both notices of violation occurred on or after January 1, 2006.

 

(Source:  Added at 30 Ill. Reg. 16293, effective September 26, 2006)

 

Section 100.30  Notice of Hearing (Repealed)

 

(Source:  Repealed at 30 Ill. Reg. 16293, effective September 26, 2006)

 

Section 100.40  Intervention (Repealed)

 

(Source:  Repealed at 30 Ill. Reg. 16293, effective September 26, 2006)

 

Section 100.50  Postponement or Continuance of Hearing (Repealed)

 

(Source:  Repealed at 30 Ill. Reg. 16293, effective September 26, 2006)

 

Section 100.60  Hearing Examiner; Power and Duties (Repealed)

 

(Source:  Repealed at 30 Ill. Reg. 16293, effective September 26, 2006)

 

Section 100.70  Pre-Hearing Conference (Repealed)

 

(Source:  Repealed at 30 Ill. Reg. 16293, effective September 26, 2006)

 

Section 100.80  Consent Findings and Rules or Orders (Repealed)

 

(Source:  Repealed at 30 Ill. Reg. 16293, effective September 26, 2006)

 

Section 100.90  Discovery (Repealed)

 

(Source:  Repealed at 30 Ill. Reg. 16293, effective September 26, 2006)

 

Section 100.100  Hearing (Repealed)

 

(Source:  Repealed at 30 Ill. Reg. 16293, effective September 26, 2006)

 

Section 100.110  Hearing Examiner's Decision (Repealed)

 

(Source:  Repealed at 30 Ill. Reg. 16293, effective September 26, 2006)

 

Section 100.120  Judicial Review (Repealed)

 

(Source:  Repealed at 30 Ill. Reg. 16293, effective September 26, 2006)