HB0361ham001 103RD GENERAL ASSEMBLY

Rep. Lilian Jiménez

Filed: 3/16/2023

10300HB0361ham001 LRB103 03888 SPS 58755 a

AMENDMENT TO HOUSE BILL 361

AMENDMENT NO. ______. Amend House Bill 361 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Illinois Work Without Fear Act.

Section 5. Legislative findings. The General Assembly finds as follows:

Wage theft and other employment violations are a serious and widespread problem that cause severe hardship to workers, their families, and their communities.

When a worker is denied wages or forced to work "off the clock", there is an immediate and irreparable harm to the worker and their family.

Low-wage, often immigrant, workers are among the most frequent victims of wage theft and other employment violations and are also exposed to the greatest hazards at work.

Immigrant workers are among those most frequently injured or killed on the job.

These problems cannot be addressed unless workers are able to come forward and call attention to violations in their workplace.

Workers who come forward to expose unfair, unsafe, or illegal conditions face retaliation with alarming frequency. Where those workers are immigrants, retaliation often involves threats or efforts to contact law enforcement agencies, including immigration enforcement agencies, if a worker engages in protected conduct.

No worker should have to fear adverse action, whether it involves threats to cut hours, move a worker to an undesirable schedule, or contact law enforcement agencies, for engaging in employment rights guaranteed by the State.

It is in the public policy interest of the State that workers be able to report concerns to their employers, their coworkers, their communities, and to Illinois labor enforcement agencies without fear of retaliation or discrimination.

It is in the public policy interest of the State for workers to be willing to come forward to expose hazardous, unsafe, and unfair conditions at their worksites so that local, State, and federal agencies can effectively enforce the laws.

It is essential to the enforcement of State labor laws that broad, clear, and effective protections exist for workers engaging in conduct protected by law from all forms of employer retaliation, including prohibiting immigration-related threats.

Section 10. Definitions. As used in this Act:

"Chapter" means Chapter 820 of the Illinois Compiled Statutes under the Title of Employment.

"Department" means the Department of Labor.

"Director" means the Director of the Department.

"Family or household member" means a spouse or party to a civil union, parent, grandparent, child, grandchild, sibling, or any other person related by blood or by present or prior marriage or civil union, any other person who shares a relationship through a child, or any other individual whose close association with the employee is the equivalent of a family relationship as determined by the employee, and persons jointly residing in the same household.

"Local employment ordinance" means any local ordinance applicable to the performance of work by an individual for any person or entity.

"License" means any agency permit, certificate, approval, registration, or charter that is required by law and that is issued by any agency for the purposes of operating a business in this State. "License" does not include a professional license.

"Person" means every natural person, firm, partnership, copartnership, limited liability company, corporation, association, business trust, or other legal entity, or its legal representatives, agents, or assigns.

"Violation" means each incident involving retaliation, without reference to the number of employees involved in the incident.

Section 15. Prohibited retaliation.

(a) It shall be unlawful for any person to engage in, or to direct another person to engage in, retaliation against any person or their family member or household member for the purpose of, or with the intent of, retaliating against any person for exercising any right protected under this Chapter or by any local employment ordinance, or as defined in subsection (b). Exercising a right protected by this Chapter or local employment ordinance includes, but is not limited to, the following:

(1) Filing a complaint or informing any person of any person's alleged violation of this Chapter or local employment ordinance, so long as the complaint or disclosure is made in good faith.

(2) Seeking information regarding whether any person is in compliance with this Chapter or local employment ordinance.

(3) Informing a person of his or her potential rights and remedies under this Chapter or local employment ordinance, and assisting him or her in asserting those rights.

(4) Filing a complaint, seeking information, or informing a person of his or her rights concerning conduct prohibited by Section 2-101 of the Illinois Human Rights Act.

(b) As used in this Section, "retaliation" means any of the following practices, when undertaken for the retaliatory purposes prohibited by subsection (a):

(1) engaging in or threatening to engage in an adverse employment action to discharge, suspend, penalize, demote, or discriminate against a person in the terms or conditions of employment;

(2) engaging in or threatening adverse actions that would impact a person's current or future employment;

(3) contacting or threatening to contact United States immigration authorities, or otherwise reporting or threatening to report, a person's suspected citizenship or immigration status or the suspected citizenship or immigration status of a family or household member of the person to a federal, State, or local agency;

(4) filing or threatening to file a false police report;

(5) using the federal E-Verify system to check the employment authorization status of a person at a time or in a manner not required under 8 U.S.C. 1324a(b) or not authorized under any memorandum of understanding governing the use of the federal E-Verify system; and

(6) engaging in unfair documentary practices by demanding more or different documents than necessary, requesting specific documents, or rejecting reasonably genuine-looking documents while verifying a person's citizenship, immigration status, or national origin, as defined by 8 U.S.C. 1324b(a)(6).

"Retaliation" does not include conduct undertaken at the express and specific direction or request of the federal government.

(c) Engaging in retaliation against a person within 90 days of the person's exercise of rights protected under this Chapter or local employment ordinance shall raise a rebuttable presumption of having done so in retaliation for the exercise of those rights.

Section 20. Enforcement by Department.

(a) It shall be the duty of the Department to inquire diligently for any violations of this Act, institute the actions for penalties herein provided, and enforce generally the provisions of this Act.

(1) A person may file a complaint with the Department alleging violations of this Act by submitting a signed, completed application on the form provided by the Department, alleging retaliation, and by submitting copies of all supporting documentation. Complaints shall be filed within one year after the date of the retaliation.

(2) Applications shall be reviewed by the Department to determine whether there is cause for investigation.

(b) The Department shall have the following powers to enforce this Act:

(1) to investigate and attempt equitably to adjust controversies between parties in respect of claims of retaliation under this Act and to that end the Department through the Director or any other person in the Department designated by the Director, shall have the power to administer oaths, subpoena and examine witnesses, issue subpoenas duces tecum requiring the production of such books, papers, records, and documents as may be evidence of any matter under inquiry, and examine and inspect the same as may relate to the question in dispute. Service of such subpoenas shall be made by any sheriff or any person. Any court in this State, upon the application of the Department may compel attendance of witnesses, the production of books and papers, and the giving of testimony before the Department by attachment for contempt or in any other way as the production of evidence may be compelled before such court;

(2) to take assignments of retaliation in the name of the Director and his or her successors in office and prosecute actions for the collection of unfair retaliation for persons financially unable to prosecute such claims when in the judgment of the Department such claims are valid and enforceable in the courts. No court costs or any fees for necessary process and proceedings shall be payable in advance by the Department for prosecuting such actions. If there is a judgment rendered against the defendant, the court shall assess as part of such judgment the costs of such proceeding. Upon collection of such judgments the Department shall pay from the proceeds of such judgment such costs to such person who is by law entitled to same. The Department may join in a single proceeding any number of unfair retaliation claims against the same employer but the court shall have discretionary power to order a severance or separate trial for hearings;

(3) to make complaint in any court of competent jurisdiction of violations of this Act; and

(4) to order the appropriate government agency to suspend licenses held by violating parties as described in in paragraphs (1) through (3) of subsection (b) of Section 15.

In addition to the aforementioned powers, subject to appropriation, the Department may establish an administrative procedure to adjudicate claims and to issue final and binding administrative decisions on such claims subject to the Administrative Review Law. To establish such a procedure, the Director or the Director's authorized representative may adopt rules. The adoption, amendment, or rescission of rules for such a procedure shall be in conformity with the requirements of the Illinois Administrative Procedure Act. If a final and binding administrative decision issued by the Department requires an employer or other party to pay wages, penalties, or other amounts in connection with a retaliation claim, and the employer or other party has neither (i) made the required payment within 35 days of the issuance of the final and binding administrative decision, nor (ii) timely filed a complaint seeking review of the final and binding administrative decision pursuant to the Administrative Review Law in a court of competent jurisdiction, the Department may file a verified petition against the employer or other party to enforce the final administrative decision and to collect any amounts due in connection therewith in the circuit court of any county where an official office of the Department is located.

Section 25. Enforcement by Attorney General.

(a) Whenever the Attorney General has reasonable cause to believe that any person has violated this Act, the Attorney General may, pursuant to the authority in Section 6.3 of the Attorney General Act, initiate or intervene in a civil action in the name of the People of the State in any circuit court to obtain appropriate relief.

(b) Before initiating or intervening in an action, the Attorney General may, pursuant to the authority in Section 6.3 of the Attorney General Act, conduct an investigation and may:

(1) require any individual to file a statement or report in writing, under oath or otherwise, as to all information the Attorney General may consider necessary;

(2) examine under oath any individual alleged to have participated in or with knowledge of the alleged violation; or

(3) issue subpoenas or conduct hearings in aid of any investigation.

(c) Whenever a party refuses to produce a document, answer an interrogatory, or provide testimony under oath in response to a subpoena from the Attorney General, the Attorney General, pursuant to the authority in Section 6.3 of the Attorney General Act, may petition the circuit court for an order compelling compliance.

Section 30. Private right of action. Nothing in this Act shall be construed to prevent any person from making complaint or prosecuting his or her own claim for damages caused by retaliation. Any person aggrieved by an actual or suspected violation of this Act or any rule adopted under this Act may file suit in circuit court in the county where the alleged violation occurred or where any person who is party to the action resides, without regard to exhaustion of any alternative administrative remedies provided in this Act. Actions may be brought by one or more persons for and on behalf of themselves and other persons similarly situated.

Section 35. Remedies and penalties.

(a) A person who is the subject of retaliation prohibited by this Act, or a representative of that person, may bring a civil action for any one or more of the following remedies:

(1) back pay, with interest, and front pay, or, in lieu of actual damages, at the person subject to retaliation's election, liquidated damages of $30,000;

(2) a civil penalty in an amount of $10,000, payable to the person subject to retaliation;

(3) reasonable attorney's fees and court costs, including any expert witness costs; and

(4) equitable relief as the court may deem appropriate and just.

(b) A person that violates any provision of this Act shall be subject to an additional civil penalty in an amount of $25,000 for each violation of Section 15, or $50,000 for each repeat violation within a 5-year period.

The penalty amount may be recovered in any administrative proceeding by the Department, or civil action filed in any circuit court by the Director or the Attorney General. All moneys received by the Department as fees and civil penalties under this Act shall be deposited into the Employee Classification Fund and shall be used, subject to appropriation by the General Assembly, by the Department for administration, investigation, and other expenses incurred in carrying out its powers and duties under this Act.

In any civil action brought by the Attorney General, the penalty amount shall be deposited into the Attorney General Court Ordered and Voluntary Compliance Payment Projects Fund. Moneys in the Fund shall be used, subject to appropriation by the General Assembly, for the performance of any function pertaining to the exercise of the duties of the Attorney General, including, but not limited to, enforcement of any law of this State and conducting public education programs; however, any moneys in the Fund that are required by the court or by an agreement to be used for a particular purpose shall be used for that purpose. Any uncollected penalty amount shall be subject to the provisions of the Illinois State Collection Act of 1986.

(c) Upon a finding by a court of applicable jurisdiction of a violation of this Act:

(1) For a first violation, the court, in its discretion, may order the appropriate government agencies to suspend all licenses subject to this Chapter that are held by the violating party for a period of up to 14 days. For the purposes of this paragraph, the licenses that are subject to suspension are all licenses held by the violating party specific to the business location or locations where the retaliation occurred. In determining whether a suspension of all licenses is appropriate, the court shall consider whether the violating party knowingly committed retaliation, the good faith efforts of the violating party to resolve any alleged retaliation after receiving notice of the violations, as well as the harm other persons performing work for the violating party, or for other parties sharing job sites with the violating party, will suffer as a result of the suspension of all licenses. On receipt of the court's order and notwithstanding any other law, the appropriate agencies shall suspend the licenses according to the court's order.

(2) For a second violation, the court, in its discretion, may order the appropriate government agencies to suspend all licenses that are held by the violating party specific to the business location or locations where the unfair retaliation occurred, for a period of up to 30 days. In determining whether a suspension of all licenses is appropriate, the court shall consider whether the violating party knowingly committed retaliation, the good faith efforts of the violating party to resolve any alleged retaliation after receiving notice of the violations, as well as the harm other persons performing work for the violating party, or for other parties sharing job sites with the violating party, will suffer as a result of the suspension of all licenses. On receipt of the court's order and notwithstanding any other law, the appropriate agencies shall immediately suspend the licenses.

(3) For a third violation, or any violation thereafter, the court, in its discretion, may order the appropriate government agencies to suspend for a period of up to 90 days all licenses that are held by the violating party specific to the business location or locations where the retaliation occurred. In determining whether a suspension of all licenses is appropriate, the court shall consider whether the violating party knowingly committed retaliation, the good faith efforts of the violating party to resolve any alleged retaliation after receiving notice of the violations, as well as the harm other persons performing work for the violating party, or for other parties sharing job sites with the violating party, will suffer as a result of the suspension of all licenses. On receipt of the court's order and notwithstanding any other law, the appropriate agencies shall immediately suspend the licenses.

(d) An action under this Act shall not limit or otherwise affect the applicability of other rights and remedies under this Chapter or under the Whistleblower Act.

Section 40. Administration. The Director or the Director's authorized representatives shall administer and enforce the provisions of this Act. In order to accomplish the objectives of this Act and to carry out the duties prescribed by this Act, the Director or the Director's authorized representative shall, within 120 days of the effective date of this Act, adopt rules necessary to administer and enforce the provisions of this Act, including the procedures that shall be followed for investigations and hearings under Section 20. The adoption, amendment, or rescission of rules shall be in conformity with the requirements of the Illinois Administrative Procedure Act.

Section 45. The Whistleblower Act is amended by changing Sections 5, 15, 20, 20.1, 20.2, 25, and 30 and by adding Section 31 as follows:

(740 ILCS 174/5)

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

"Employer" means: an individual, sole proprietorship, partnership, firm, corporation, association, and any other entity that has one or more employees in this State, including a political subdivision of the State; a unit of local government; a school district, combination of school districts, or governing body of a joint agreement of any type formed by two or more school districts; a community college district, State college or university, or any State agency whose major function is providing educational services; any authority including a department, division, bureau, board, commission, or other agency of these entities; and any person acting directly or indirectly in the interest of an employer in relation to an employee within the scope of his or her authority express or implied on behalf of those entities in dealing with its employees.

"Employee" means any individual permitted to work who is employed on a full-time, part-time, or contractual basis by an employer in an occupation. "Employee" also includes, but is not limited to, a licensed physician who practices his or her profession, in whole or in part, at a hospital, nursing home, clinic, or any medical facility that is a health care facility funded, in whole or in part, by the State. "Employee" does not include any individual:

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

(2) who performs work which is either outside the usual course of business or is performed outside all of 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 in an independently established trade, occupation, profession, or business.

"Public body" means the State or any officer, board, or commission of the State, or any political subdivision or department thereof, or any institution supported in whole or in part by public funds, and includes every county, city, town, village, township, school district, irrigation, utility, reclamation improvement or other district and every other political subdivision, district, or municipality of the State whether such political subdivision, municipality, or district operates under a special charter or not, and any enforcement agency related to any such public body.

"Retaliatory action" means an adverse action taken by an employer or his or her agent to discharge, threaten, penalize, or in any other manner discriminate against any employee or former employee. "Retaliatory action" includes, but is not limited to:

(1) taking, or threatening to take, an adverse employment action, such as discharge, suspension, or demotion, against an employee in the terms or conditions of employment;

(2) taking, or threatening to take, any action that would adversely impact a former employee's current or future employment;

(3) contacting, or threatening to contact, United States immigration authorities, or otherwise reporting, or threatening to report, an employee's suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee's family or household member to a federal, State, or local agency;

(4) using the federal E-Verify system to check the employment authorization status of a person at a time or in a manner not required under 1324a(b) or not authorized under any memorandum of understanding governing the use of the federal E-Verify system; or

(5) engaging in unfair documentary practices by demanding more or different documents than necessary, requesting specific documents, or rejecting reasonably genuine-looking documents while verifying a worker's citizenship, immigration status, or national origin, as defined by 8 U.S.C. 1324b(a)(6)

"Supervisor" means any individual (i) within an employer's organization, or an organization the employer has a contractual relationship with, (ii) who has the authority to direct and control the work performance of the affected employee, or (iii) who has managerial authority to take corrective action regarding a violation of the law, rule, or regulation disclosed by an employee in accordance with Section 15.

(Source: P.A. 95-128, eff. 1-1-08; 96-1253, eff. 1-1-11.)

(740 ILCS 174/15)

Sec. 15. Retaliation for certain disclosures prohibited.

(a) An employer may not take retaliatory action retaliate against an employee who discloses or threatens to disclose information about an activity, policy, or practice of the employer to in a court, an administrative hearing, a public body conducting an investigation, or or before a legislative commission or committee, or in any other proceeding initiated by a public body, where the employee has reasonable cause to believe that the activity, policy or practice (i) violates the information discloses a violation of a State or federal law, rule, or regulation or (ii) poses a substantial and specific danger to public health or safety..

(b) An employer may not take retaliatory action retaliate against an employee for disclosing or threatening to disclose information to a government or law enforcement agency an activity, policy, or practice of the employer, where the employee has reasonable cause to believe that the activity, policy, or practice (i) violates the information discloses a violation of a State or federal law, rule, or regulation or (ii) poses a substantial and specific danger to public health or safety.

(c) An employer may not take retaliatory action against an employee for disclosing or threatening to disclose to a supervisor an activity, policy, or practice of the employer that the employee has reasonable cause to believe (i) violates a State or federal law, rule, or regulation or (ii) poses a substantial and specific danger to public health or safety.

(Source: P.A. 95-128, eff. 1-1-08.)

(740 ILCS 174/20)

Sec. 20. Retaliation for certain refusals prohibited. An employer may not take retaliatory action retaliate against an employee for refusing to participate in an activity that would result in a violation of a State or federal law, rule, or regulation, including, but not limited to, violations of the Freedom of Information Act.

(Source: P.A. 96-555, eff. 8-18-09.)

(740 ILCS 174/20.1)

Sec. 20.1. Other retaliation. Any other act or omission not otherwise specifically set forth in this Act, whether within or without the workplace, also constitutes retaliatory action retaliation by an employer under this Act if the act or omission would be materially adverse to a reasonable employee and is because of the employee disclosing or attempting to disclose public corruption or wrongdoing.

(Source: P.A. 96-555, eff. 8-18-09.)

(740 ILCS 174/20.2)

Sec. 20.2. Threatening retaliation. An employer may not threaten any employee with any act or omission if that act or omission would constitute retaliatory action retaliation against the employee under this Act.

(Source: P.A. 96-555, eff. 8-18-09.)

(740 ILCS 174/25)

Sec. 25. Criminal Civil penalty. Violation of this Act is a Class A misdemeanor.

(Source: P.A. 93-544, eff. 1-1-04.)

(740 ILCS 174/30)

Sec. 30. Damages and penalties. If an employer takes any retaliatory action against an employee in violation of Section 15 or 20, the employee may bring a civil action against the employer for all relief necessary to make the employee whole, including but not limited to the following, as appropriate:

(1) permanent or preliminary injunctive relief;

(2) reinstatement with the same seniority status that the employee would have had, but for the violation;

(3) (2) back pay, with interest, and front pay, or, in lieu of actual damages, at the employee's election, liquidated damages of $30,000;; and

(4) (3) compensation for any costs incurred damages sustained as a result of the violation, including litigation costs, expert witness fees, and reasonable attorney's fees.

In addition to the remedies specified in paragraphs (1) through (4), the Attorney General may request and the finder of fact may impose a civil penalty in the amount of $30,000 for each violation, or $50,000 for each repeat violation within a 5-year period. For purposes of this Section, each violation of this Act for each employee the employer took or threatened to take retaliatory action against shall constitute a separate and distinct violation. A civil penalty imposed under this Section shall be deposited into the Attorney General Court Ordered and Voluntary Compliance Payment Projects Fund. Moneys in the Fund shall be used, subject to appropriation, for the performance of any function pertaining to the exercise of the duties of the Attorney General, including, but not limited to, enforcement of any law of this State and conducting public education programs; however, any moneys in the Fund that are required by the court or by an agreement to be used for a particular purpose shall be used for that purpose.

(Source: P.A. 93-544, eff. 1-1-04.)

(740 ILCS 174/31 new)

Sec. 31. Attorney General enforcement.

(a) Whenever the Attorney General has reasonable cause to believe that any person or entity is engaged in a practice prohibited by this Act, the Attorney General may, pursuant to the authority conferred by Section 6.3 of the Attorney General Act, initiate or intervene in a civil action in the name of the People of the State in any appropriate court to obtain appropriate relief.

(b) Before initiating an action, the Attorney General may conduct an investigation and may:

(1) require an individual or entity to file a statement or report in writing, under oath or otherwise, as to all information the Attorney General may consider necessary;

(2) examine under oath any person alleged to have participated in or with knowledge of the alleged violation; or

(3) issue subpoenas or conduct hearings in aid of any investigation.

(c) Service by the Attorney General of any notice requiring a person or entity to file a statement or report, or of a subpoena upon any person or entity, shall be made:

(1) personally by delivery of a duly executed copy thereof to the person to be served or, if a person is not a natural person, in the manner provided in the Code of Civil Procedure when a complaint is filed; or

(2) by mailing certified mail a duly executed copy thereof to the person to be served at his or her last known abode or principal place of business within this State or, if the person is not a natural person, in the manner provided in the Code of Civil Procedure when a complaint is filed.

The Attorney General may compel compliance with investigative demands under this Section through an order by any court of competent jurisdiction.".