HB2649 98TH GENERAL ASSEMBLY

LRB098 07683 JLS 37756 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB2649

Introduced 2/21/2013, by Rep. Luis Arroyo

SYNOPSIS AS INTRODUCED:

820 ILCS 185/5
820 ILCS 185/25
820 ILCS 185/30
820 ILCS 185/40
820 ILCS 185/55
820 ILCS 185/63 new

Amends the Employee Classification Act. Includes an individual within the scope of the term "contractor". Provides for notice to an employer of violations and penalties and for a time within which an employer may request a hearing; provides for a formal administrative hearing. Makes changes concerning responsibilities of the Attorney General and the recovery of penalties. Includes discipline within acts prohibited as retaliation against a person for exercising rights under the Act, and adds provisions concerning review, an investigation, and a formal hearing. Provides for individual officers and agents of employers to be liable under the Act.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning employment.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Employee Classification Act is amended by changing Sections 5, 25, 30, 40, and 55 and by adding Section 63 as follows:

(820 ILCS 185/5)

Sec. 5. Definitions. As used in this Act:

"Construction" means any constructing, altering, reconstructing, repairing, rehabilitating, refinishing, refurbishing, remodeling, remediating, renovating, custom fabricating, maintenance, landscaping, improving, wrecking, painting, decorating, demolishing, and adding to or subtracting from any building, structure, highway, roadway, street, bridge, alley, sewer, ditch, sewage disposal plant, water works, parking facility, railroad, excavation or other structure, project, development, real property or improvement, or to do any part thereof, whether or not the performance of the work herein described involves the addition to, or fabrication into, any structure, project, development, real property or improvement herein described of any material or article of merchandise. Construction shall also include moving construction related materials on the job site to or from the job site.

"Contractor" means any individual, sole proprietor, partnership, firm, corporation, limited liability company, association or other legal entity permitted by law to do business within the State of Illinois who engages in construction as defined in this Act.

"Contractor" includes a general contractor and a subcontractor.

"Department" means the Department of Labor.

"Director" means the Director of the Department of Labor.

"Employer" means any contractor that employs individuals deemed employees under Section 10 of this Act; however, "employer" does not include (i) the State of Illinois or its officers, agencies, or political subdivisions or (ii) the federal government.

"Entity" means any contractor for which an individual is performing services and is not classified as an employee under Section 10 of this Act; however, "entity" does not include (i) the State of Illinois or its officers, agencies, or political subdivisions or (ii) the federal government.

"Interested party" means a person with an interest in compliance with this Act.

"Performing services" means the performance of any constructing, altering, reconstructing, repairing, rehabilitating, refinishing, refurbishing, remodeling, remediating, renovating, custom fabricating, maintenance, landscaping, improving, wrecking, painting, decorating, demolishing, and adding to or subtracting from any building, structure, highway, roadway, street, bridge, alley, sewer, ditch, sewage disposal plant, water works, parking facility, railroad, excavation or other structure, project, development, real property or improvement, or to do any part thereof, whether or not the performance of the work herein described involves the addition to, or fabrication into, any structure, project, development, real property or improvement herein described of any material or article of merchandise. Construction shall also include moving construction related materials on the job site to or from the job site.

(Source: P.A. 95-26, eff. 1-1-08.)

(820 ILCS 185/25)

Sec. 25. Enforcement.

(a) Any interested party may file a complaint with the Department against an entity or employer covered under this Act if there is a reasonable belief that the entity or employer is in violation of this Act. It shall be the duty of the Department to enforce the provisions of this Act. The Department shall have the power to conduct investigations in connection with the administration and enforcement of this Act and any investigator with the Department shall be authorized to visit and inspect, at all reasonable times, any places covered by this Act and shall be authorized to inspect, at all reasonable times, documents related to the determination of whether an individual is an employee under Section 10 of this Act. The Director of Labor or his or her representative may compel, by subpoena, the attendance and testimony of witnesses and the production of books, payrolls, records, papers, and other evidence in any investigation and may administer oaths to witnesses.

(b) Whenever the Department believes upon investigation that there has been a violation of any of the provisions of this Act or any rules or regulations promulgated under this Act, the Department may: (i) issue and cause to be served on any party an order to cease and desist from further violation of the Act, (ii) take affirmative or other action as deemed reasonable to eliminate the effect of the violation, (iii) collect the amount of any wages, salary, employment benefits, or other compensation denied or lost to the individual, and (iv) assess any civil penalty allowed by this Act. The civil penalties assessed by the Department as well as any other relief requested by the Department shall be recoverable in an action brought in the name of the people of the State of Illinois by the Attorney General.

(c) Upon the determination by the Department of any violation and the determination by the Department of a civil penalty under this Section, the Department shall notify the employer in writing of the alleged violation and the amount of the penalty. The Department shall afford the employer 10 calendar days from the date of the notice to request a hearing. Absent the employer requesting a hearing within the requisite time period provided herein, the Department's determination shall be final. Any final determination by the Department shall be enforceable in an action brought by the Attorney General in the name of the people of the State of Illinois under the Administrative Review Law.

(d) Upon timely written request of the employer or entity, the Department shall schedule a formal administrative hearing within 45 days in compliance with Article 10 of the Illinois Administrative Procedure Act and the Department shall have the authority to adopt reasonable rules for the hearing process. The General Assembly finds that the adoption of rules to implement this Section is deemed an emergency and necessary for the public interest and welfare. The final decision of an Administrative Law Judge shall be rendered within 30 calendar days after the close of the hearing. The final decision of an Administrative Law Judge rendered after the close of a hearing under this Section is subject to the provisions of the Administrative Review Law.

(Source: P.A. 95-26, eff. 1-1-08.)

(820 ILCS 185/30)

Sec. 30. Attorney General; State's Attorneys. Criminal violations of this Act shall be prosecuted by the Attorney General or the appropriate State's Attorney. The Department shall refer matters to the Attorney General and the appropriate State's Attorney upon determining that a criminal violation may have occurred. In all other proceedings the Department shall be represented by the Attorney General's Office.

(Source: P.A. 95-26, eff. 1-1-08.)

(820 ILCS 185/40)

Sec. 40. Penalties. An employer or entity that violates any of the provisions of this Act or any rule adopted under this Act shall be subject to a civil penalty not to exceed $1,500 for each violation found in the first audit by the Department. Following a first audit, an employer or entity shall be subject to a civil penalty not to exceed $2,500 for each repeat violation found by the Department within a 5 year period. For purposes of this Section, each violation of this Act for each person and for each day the violation continues shall constitute a separate and distinct violation. In determining the amount of a penalty, the Director shall consider the appropriateness of the penalty to the employer or entity charged, upon the determination of the gravity of the violations. The amount of the penalty, when finally determined, may be recovered in a civil action filed in any circuit court by the Director of Labor, or a person aggrieved by a violation of this Act or any rule adopted under this Act. In any civil action brought by an interested party pursuant to this Section, the circuit court shall award the interested party 10% of the amount recovered. Upon receipt of any civil penalties by the Department, 10% of such moneys shall be distributed and paid to all affected employees.

All moneys collected by the Department excluding the 10% amount paid to affected employees shall be submitted to the Director of Labor. In such case, the remaining amount recovered shall be submitted to the Director of Labor. Any uncollected amount shall be subject to the provisions of the Illinois State Collection Act of 1986.

(Source: P.A. 95-26, eff. 1-1-08.)

(820 ILCS 185/55)

Sec. 55. Retaliation.

(a) It is a violation of this Act for an employer or entity, or any agent of an employer or entity, to retaliate through discharge, discipline, or in any other manner against any person for exercising any rights granted under this Act. Such retaliation shall subject an employer or entity to civil penalties pursuant to this Act or a private cause of action, or both.

(b) It is a violation of this Act for an employer or entity to retaliate against a person for:

(1) making a complaint to an employer or entity, to a co-worker, to a community organization, before a public hearing, or to a State or federal agency that rights guaranteed under this Act have been violated;

(2) causing to be instituted any proceeding under or related to this Act; or

(3) testifying or preparing to testify in an investigation or proceeding under this Act.

(c) Any employee or a representative of employees who believes that he has been discharged, disciplined, or otherwise retaliated against by any person in violation of this Act, may, within 30 calendar days of the alleged violation, apply to the Department for a review of the discharge, discipline, or related retaliation. A copy of the complaint shall be sent to the person alleged to have committed the retaliation.

(d) Upon receipt of the allegation the Department shall cause an investigation to be made. In the event the Department finds cause to believe a violation has occurred, the Department may institute a formal hearing before an Administrative Law Judge. Upon the close of the hearing the Administrative Law Judge shall issue a formal decision, which may include such relief as is necessary to abate the violation including, but not limited to, the rehiring or reinstatement of the employee or representative of the employee and compensating the employee in an amount to make the employee whole. A final decision by the Administrative Law Judge shall be issued within 30 calendar days after the close of a hearing and is subject to the provisions of the Administrative Review Law.

(Source: P.A. 95-26, eff. 1-1-08.)

(820 ILCS 185/63 new)

Sec. 63. Individual liability. In addition to an individual who is deemed to be an employer pursuant to Section 5 of this Act, any officer of a corporation or agent of an employer who knowingly permits such employer to violate the provisions of this Act shall be deemed to be the employers of the employees of the corporation and individually liable for all violations and penalties assessed by the Department.