Section 280.100  Purpose and Scope

 

This Part shall apply to complaints arising under the Victims' Economic Security and Safety Act [820 ILCS 180].  The purpose of the Act is:

 

a)         to allow employees who are victims of domestic violence, sexual violence, gender violence, or any other crime of violence, or who have a family or household member who is a victim of domestic violence, sexual violence, gender violence, or any other crime of violence whose interests are not adverse to the employee as it relates to the domestic violence, sexual violence, gender violence, or any other crime of violence to take unpaid job-protected leave if the employee or the employee's family or household member is experiencing an incident of domestic violence, sexual violence, gender violence, or any other crime of violence or to seek medical attention for or to address the incident of domestic violence, sexual violence, gender violence, or any other crime of violence by recovering from physical or psychological injuries; obtaining services from a victim services organization; obtaining counseling; participating in safety planning; temporarily or permanently relocating; seeking legal assistance; preparing for or participating in any legal proceeding related to or derived from domestic violence, sexual violence, gender violence, or any other crime of violence; or taking other actions to ensure the health, safety, or economic security of the employee or employee's family or household member;  

 

b)         to prohibit employers from discriminating against employees who are victims of domestic violence, sexual violence, gender violence, or any other crime of violence or who have a family or household member who is a victim of domestic violence, sexual violence, gender violence, or any other crime of violence. [820 ILCS 180/20(a)(3)]; and

 

c)         to require employers to provide reasonable accommodations in a timely manner to employees who are victims of domestic violence, sexual violence, gender violence, or any other crime of violence or who have a family or household member who is a victim of domestic violence, sexual violence, gender violence, or any other crime of violence.

 

(Source:  Amended at 46 Ill. Reg. 18530, effective November 2, 2022)

 

Section 280.110  Definitions

 

"Act" means the Victims' Economic Security and Safety Act (VESSA) [820 ILCS 180].

 

"Certification", as used in Section 20(c) of the Act, means a signed, written statement of an employee certifying to the employee's employer that:

 

the employee or the employee's family or household member is a victim of domestic violence, sexual violence, gender violence, or any other crime of violence; and

 

the leave is for one of the purposes enumerated in Section 20(a)(1) of the Act.  [820 ILCS 180/20(c)(2)]

 

If the employee possesses documentation, records, or other corroborating evidence to support the certified statement, the employee shall provide at least one such supporting document to the employer. The employer cannot require the employee or the employee's family or household member to obtain any documentation, records, or other corroborating evidence that is not in the employee's possession.  The employee shall choose which document to submit, and the employer shall not request or require more than one document to be submitted during the same 12-month period leave is requested or taken if the reason for leave is related to the same incident or incidents of violence or the same perpetrator or perpetrators of the violence.

 

"Complaint" means an allegation of a violation of the Act filed with the Department.

 

"Complainant" means a person who files a complaint.

 

"Department" means the Illinois Department of Labor or a duly authorized representative.

 

"Director" means the Director of the Illinois Department of Labor or the Director's designee.

 

"Employee" means any person suffered or permitted to work by an employer, including on a full-time or part-time basis or as a participant in a work assignment as a condition of receipt of federal or State income-based public assistance.

 

"Employer" means

 

the State or any agency of the State;

 

any unit of local government or school district; or

 

any person that employs at least one employee.

 

Evidence that may be submitted to support a certified statement means the following:

 

documentation from an employee, agent, or volunteer of a victim services organization, an attorney, a member of the clergy, or a medical or other professional from whom the employee or the employee's family or household member has sought assistance in addressing domestic violence, sexual violence, gender violence, or any other crime of violence and the effects of the violence;

 

a police or court record; or

 

other corroborating evidence.  [820 ILCS 180/20(c)(2)]

 

"FMLA" means the federal Family and Medical Leave Act of 1993 (29 U.S.C. 2601 et seq.).

 

"Public hearing" means a formal administrative hearing conducted pursuant to 56 Ill. Adm. Code 120.

 

"Respondent" means an employer against whom a complaint is filed.

 

(Source:  Amended at 46 Ill. Reg. 18530, effective November 2, 2022)

 

Section 280.120  Application of the Act

 

a)         All individuals, regardless of gender, have equal protection under the Act.

 

b)         The Department will investigate a complaint when:

 

1)         The complaint concerns work performed within the State of Illinois, but not when the complaint concerns sporadic work performed in the State of Illinois for an employer located outside of Illinois.

 

2)         The complaint concerns work performed outside the State of Illinois if the specified employer is located within the State of Illinois or the contract for hire was entered into in the State of Illinois, but not when the complaint is filed by an employee whose permanent work station was outside the State of Illinois and who performed a substantial portion of the employee's duties outside the State of Illinois.

 

c)         In any calendar month that an employer is subject to the prescriptions of the Act, including, without limitation, providing leave or reasonable accommodation and prohibitions against discriminatory acts and retaliation against an employee, the employer shall continue to be subject to the Act and this Part for the following 12 months.

 

(Source:  Amended at 46 Ill. Reg. 18530, effective November 2, 2022)

 

Section 280.130  Independent Contractor Exemption

 

a)         As used in this Part, the term "employee" shall not include any individual:

 

1)         who has been and will continue to be free from control and direction over the performance of the individual's work, both under the contract of service with the employer and in fact; and

 

2)         who performs work that is either outside the usual course of business or is performed outside all the places of business of the employer unless the employer is in the business of contracting with third parties for the placement of employees; and

 

3)         who is an independently established trade, occupation, profession or business.

 

b)         "Control" means the existence of general control or right to general control, even though the details of the work are left to an individual's judgment.

 

c)         "An independently established trade, occupation, profession or business" means the individual performing the services has a proprietary interest in such business, to the extent that the individual operates the business without hindrance from any other person and as the enterprise's owner, may sell or otherwise transfer the business.

 

d)         All three conditions in subsection (a) must be satisfied and demonstrated by a respondent for the independent contractor exemption to apply.

 

e)         An individual may be an employee without being entirely dependent upon the relationship with a specified employer for the individual's livelihood.  An individual engaged in other occupations may be an employee of a specified employer even though the individual only worked intermittently or part time.

 

f)         In determining whether the exemption applies, the Department may consider the actual, rather than the alleged, relationship between a respondent and complainant.  Designations and terminology used by the parties, as well as the individual's status for tax purposes, are not controlling.

 

Section 280.140  Records Retention and Release

 

a)         Employers must maintain records that contain the following:

 

1)         Name, address, and occupation of each employee; rate or basis of pay, terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid each pay period.

 

2)         All dates leave under the Act is used by each employee shall be designated in the records as such leave. If leave is taken in increments of less than one full day and the number of hours taken must be recorded.

 

3)         Copies of "employee requests", if in writing, for leave under the Act, with any attachments, furnished to the employer.

 

4)         Copies of any written notices regarding the Act given to employees.

 

5)         Any documents describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves.

 

6)         Any employer that provides any paid time off, including, without limitation, vacation, sick or personal leave, to its employees must maintain true and accurate records of the paid time off earned for each year and the dates on which paid time off was taken or paid.

 

7)         Records of any dispute between the employer and an employee regarding designation of leave under the Act, including any written documents from the employer or employee stating the reasons for the designation and for the disagreement.

 

b)         In addition, the employer shall preserve any records made in the regular course of the business operation that relate to personnel records, employee qualifications for promotion, transfer, discharge or other disciplinary action, wage rates, skills testing certifications, job evaluations, job descriptions, merit systems, seniority systems, individual employment contracts, collective bargaining agreements, description of practices or other matters that describe or explain the basis for any use of any type of paid and unpaid time off.

 

c)         Records and documents relating to certifications, medical histories of employees or employees' family and household members, created for purposes of the Act, shall be maintained in conformance with all State and federal laws, including, without limitation, all confidentiality requirements.

 

d)         All records under this Section shall be maintained by an employer for at least three years.  Failure by a respondent to maintain all records for the stated period or in the stated manner may result in a finding of failure to cooperate.

 

Section 280.200  Persons Who May File a Complaint

 

An employee, or representative of employees, who believes his or her rights under this Act have been violated may file a complaint with the Department requesting a review of the alleged violation.

 

Section 280.210  Requirements for Filing a Complaint

 

a)         A complaint shall be filed on a form to be supplied by the Department.  This form can be found at https://www2.illinois.gov/idol/Laws-Rules/CONMED/Pages/vessa.aspx.  Such form shall name the respondent, shall be signed by the complainant and shall be accurately completed alleging the violation of the Act being reported. The form may have attached copies of all supporting documentation.

 

b)         All complaints and amendments to any complaint shall be delivered, by U.S. mail or personal delivery, to the Department's Chicago office at 160 N. LaSalle St., Suite C-1300, Chicago, IL 60601, or submitted electronically to the Department at dol.questions@illinois.gov, within three years after the alleged violation of the Act occurred.  The complaint shall be deemed filed as of the date it is postmarked on the envelope if sent via U.S. mail or date stamped as received by the Department if submitted by personal delivery or electronic means.

 

(Source:  Amended at 46 Ill. Reg. 18530, effective November 2, 2022)

 

Section 280.220  Confidentiality

 

Where a complainant requests confidentiality, the Department will advise the complainant of the need to reveal the complainant's identity so that the Department can conduct its investigation.  In such cases, the Department will allow the complainant an opportunity to withdraw the complaint pursuant to Section 280.300 before notification of the complainant's identity is given to a respondent.

 

Section 280.230  Incomplete Complaint

 

If the Department receives a complaint from an individual that complies substantially with Section 280.210 but is lacking an element that still must be provided, the Department may accept and docket the complaint as an incomplete complaint.  The Department shall notify the complainant, in writing, of the elements that must be supplied.  If the complainant is unavailable or unwilling, without good cause, to perfect the complaint within 30 calendar days, the Department may make a finding of a failure to cooperate or may deem there to be a waiver of all proceedings before the Director.

 

Section 280.240  Amendment of Complaint

 

a)                  A complaint may be amended, prior to a determination under Section 280.410:

 

1)                  to cure technical defects;

 

2)                  to set forth additional facts or allegations related to the subject matter of the original complaint if, at the time of the amendment, a separate complaint could have been timely filed under Section 280.210;

 

3)                  to substitute or name additional respondents;

 

4)                  to add an additional issue if, at the time of the amendment, the added respondent knew, or should have known or had reason to know, of the additional issue.

 

The amendment shall relate back to the original filing date.

 

b)         If the employee who is the subject of the complaint dies while the investigation is pending, the Department may continue, if  feasible, to process the remaining issues.

 

c)         The Department shall provide any amendment to a complaint to all parties.

 

Section 280.300  Withdrawal, Settlement, Waiver and Consents

 

a)         A complaint may be voluntarily withdrawn at any time.

 

b)         Complainant and a respondent may settle at any time.

 

c)         Any party may waive a public hearing at any time after the time for filing a response has passed.

 

d)         At any time, the parties may enter into a consent decree under 56 Ill. Adm. Code 120.540.

 

e)         Any withdrawal, settlement or consent decree will not affect the processing of a complaint made by any other complainant, the allegations of which are similar or related to the individual allegations settled.

 

(Source:  Amended at 30 Ill. Reg. 6157, effective March 23, 2006)

 

Section 280.310  Presentation of Parties' Information

 

a)         At the time of filing of the complaint, the Department may determine initially whether the allegations in the complaint sufficiently state a claim under the Act so that the Department can proceed with the investigation.

 

b)         If, at the time of filing, or at any subsequent time, it is determined that there is a lack of jurisdiction, the complaint shall be denied.  Upon the specific request of either of the parties, or on its own motion, the Department may recommend to the Director the denial of the complaint.  All parties shall be notified of the denial of the complaint pursuant to the Administrative Procedures Act.

 

c)         If the Department determines jurisdiction appears to exist, the Department shall promptly serve upon each respondent a copy of the complaint with a written notice setting forth the rights and obligations of the parties.  The notice shall be served by U.S. regular mail.

 

d)         Each respondent must remit a written response to the complaint within 21 calendar days after the date the Department forwarded the complaint.  The response shall be signed by a duly authorized individual representative and shall include a complete, accurate and responsive explanation to the claim necessary and appropriate to the Department's investigation, specifying any defenses and any disputed and undisputed facts.  If a respondent relied on any record for the response, the respondent shall submit a copy of that record.  Failure, without good cause, of a respondent to submit an appropriate response to the Department may result in a finding of a failure to cooperate with the Department.

 

e)         Upon receipt of a respondent's response, the Department is to forward the response to the complainant.  Complainant shall submit a rebuttal to the Department within 21 calendar days after the date the Department forwarded the response of the respondent.  Failure, without good cause, of the complainant to submit timely a rebuttal to the Department may result in a finding of a failure to cooperate or may be deemed to be a waiver of all proceedings before the Director and will permit a final order denying the complaint.

 

(Source:  Amended at 30 Ill. Reg. 6157, effective March 23, 2006)

 

Section 280.320  Duplicative Issues or Inconsistent Rulings (Repealed)

 

(Source:  Repealed at 30 Ill. Reg. 6157, effective March 23, 2006)

 

Section 280.400  Investigation

 

a)         The Department may conduct an investigation to ascertain the facts relating to the violation alleged in the complaint, to determine whether reasonable cause exists to believe a violation of the Act has occurred and to determine whether the issues may be resolved between the parties.  The investigation may be in person or by telephone and may include written or oral inquiry, field visit or any method or combination of methods deemed suitable in the discretion of the Department.  The Department will limit its investigation to reviewing up to three years prior to the date the complaint was filed, but in no case shall review occur prior to the effective date of the Act, August 25, 2003.

 

b)         The parties must cooperate fully with the Department at all times as provided for in this Part.  Such cooperation shall include without limitation:

 

1)         promptly providing the Department with a notice of address or telephone change or any prolonged absence from the current address so that the parties can be located;

 

2)         providing necessary information and being available for interviews, conferences and hearings upon reasonable notice or request by the Department.  If the parties cannot be located or do not respond to reasonable requests by the Department, without good cause, such action may result in a finding of a failure to cooperate with the Department.

 

c)         If, at any time, a party fails to cooperate with the Department under this Part, the Department, upon seven calendar days notice to all parties, may make a part of the official record a finding of failure to cooperate.  If a finding of a failure to cooperate is made, the Department may make such recommendations as are appropriate to the Director, including denial of the complaint, or other order, including provision of discovery, including subpoenas or depositions, or affirmative action under the Act.

 

d)         The Department, on its own or at the request of a party or a witness, may issue an appropriate protective order.  The order may be issued at any time and shall be for the purpose of preventing a clearly unwarranted invasion of personal privacy or other disclosure of confidential information, including, without limitation, documents, home addresses or names of individuals.  The order may apply, where relevant, to nonparties and other parties.  Further, the order may be subject to being modified or vacated by a court of competent jurisdiction.

 

(Source:  Amended at 30 Ill. Reg. 6157, effective March 23, 2006)

 

Section 280.410  Decision by the Department

 

a)         At the conclusion of an investigation, the Department must make, in writing, at least one of the following determinations:

 

1)         Reasonable Cause.  If the Department determines that there is reasonable cause that a violation of the Act has occurred, it may seek a Consent Order, executed by both parties and the Department, that abates the unlawful practice and provides appropriate relief to the complainant.

 

2)         No Reasonable Cause.

 

3)         Whether any party has failed to cooperate with the Department and any appropriate recommendation.

 

b)                  Whenever a decision is made under this Section, notice must be in compliance with the Department's Rules of Procedure in Administrative Hearings (56 Ill. Adm. Code 120).

 

c)         Upon the issuance of a determination under this Section, any party may request, in writing, that the Department provide a formal administrative hearing.  Such request shall be delivered by U.S. mail or personal delivery to the Chief Administrative Law Judge at the Department's Chicago office within 30 calendar days after the determination.  The request shall be prominently marked REQUEST FOR VESSA HEARING on both the letter and the envelope.

 

Section 280.420  Enforcement Procedures

 

a)         The Director may require reasonable evidence that a respondent is in full or substantial compliance with any order.

 

b)         If a respondent does not voluntarily comply with any discovery (including depositions or subpoenas) or other order of the Department within 21 calendar days, there may be a finding of a failure to cooperate and the Director may refer the matter to the Office of the Attorney General for enforcement.

 

Section 280.500  Procedures in Formal Administrative Hearing

 

Upon referral of a matter for formal administrative hearing, the parties and the Department shall comply with this Part, all provisions of Article 10 of the Illinois Administrative Procedure Act [5 ILCS 100/Art. 10], and the Department's Rules of Procedure in Administrative Hearings (56 Ill. Adm. Code 120).