HB5071ham001 103RD GENERAL ASSEMBLY

Rep. Lilian Jiménez

Filed: 4/4/2024

10300HB5071ham001 LRB103 39402 SPS 71815 a

AMENDMENT TO HOUSE BILL 5071

AMENDMENT NO. ______. Amend House Bill 5071 by replacing everything after the enacting clause with the following:

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

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

(1) Wage theft is a serious and widespread problem that causes severe hardship to low-wage workers, their families, and their communities.

(2) When a worker is denied wages or is forced to work "off the clock", there is an immediate and irreparable harm to the worker and his or her family.

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

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

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

(6) No applicant or employee 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 exercising employment rights guaranteed by the State of Illinois.

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

(8) It is in the public policy interest of the State of Illinois for workers to be willing to come forward to expose hazardous, unsafe, and unfair conditions at their work sites so that local, State, and federal agencies can effectively enforce the law.

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

Section 10. Definitions. As used in this Act:

"Applicable employment laws" means the Illinois Wage Payment and Collection Act, the Prevailing Wage Act, the Minimum Wage Law, the Day and Temporary Labor Services Act, the Equal Pay Act of 2003, the One Day Rest in Seven Act, the Victims' Economic Security and Safety Act, the Employee Sick Leave Act, the Child Labor Law, the Employee Classification Act, the Domestic Workers Bill of Rights, the Right to Privacy in the Workplace Act, the Illinois Worker Adjustment and Retraining Notification Act, the Family Bereavement Leave Act, the Job Opportunities for Qualified Applicants Act, the Paid Leave for All Workers Act, the Personnel Record Review Act, and any new Act concerning employment rights that the Department of Labor maintains jurisdiction to enforce.

"Applicant" means any person pursuing employment with an employer or with or through an employment agency or a day and temporary labor service agency.

"Department" means the Department of Labor.

"Director" means the Director of Labor.

"Employer" means an individual, sole proprietorship, partnership, firm, association, corporation, limited liability company, business trust, and any other entity that has one or more employees in this State or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee.

"Employee" means any individual permitted to work by an employer in an occupation, but shall 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 a contract of service with the employer and in fact;

(2) who performs a service that is outside the usual course of services performed by the employer; and

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

"Employee" includes a worker who an employer incorrectly classifies as an independent contractor.

"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 applicant, employee, or independent contractor is the equivalent of a family relationship as determined by the applicant, employee, independent contractor, or persons jointly residing in the same household.

"Immigration-related retaliation" means any of the following practices, when undertaken for a retaliatory purpose:

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

(2) 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;

(3) 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 described in 8 U.S.C. 1324b(a)(6); and

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

"Immigration-related retaliation" does not include conduct undertaken at the express and specific direction or request of the federal government.

"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 assignees.

"Violation" means each incident of immigration-related retaliation with respect to each of applicant, employee, and independent contractors against whom immigration-related retaliation was taken.

Section 15. Prohibited immigration-related retaliation.

(a) Notwithstanding any other provision of law, it shall be unlawful for an employer or any other person or entity to engage in, or to direct another person or entity to engage in, immigration-related retaliation against any applicant, employee, independent contractor, or his or her family member or household member for the purpose of, or with the effect of, retaliating against any applicant, employee, or independent contractor who in good faith:

(1) files a complaint or informs any person of an employer's or other party's alleged violation of an applicable employment law;

(2) seeks information regarding whether an employer or other party is in compliance with an applicable employment law;

(3) informs a person of his or her potential rights and remedies under an applicable employment law or assists them in asserting those rights;

(4) files a complaint, seeks information, informs any person of an employer's or third-party's alleged violation of rights, or informs a person of his or her rights concerning conduct prohibited by Section 2-101 of the Illinois Human Rights Act;

(5) has exercised his or her rights protected by an applicable employment law in any former employment; or

(6) discloses or threatens to disclose that an activity, policy, or practice of the employer poses a substantial and specific danger to public health or safety.

(b) Engaging in immigration-related retaliation against a person within 90 days after the person's exercise of rights protected under this Act shall raise a rebuttable presumption of having done so in retaliation for the exercise of those rights. The presumption of an unfair immigration-related action taken by an employer or other entity may be rebutted by clear and convincing evidence that the action was taken for a lawful purpose.

Section 20. Enforcement by Department.

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

(1) An applicant or employee may file a complaint with the Department alleging a violation of this Act, except for a violation of paragraph (4) of subsection (a) of Section 15, by submitting a signed, completed complaint on the form provided by the Department alleging immigration-related retaliation and by submitting copies of all supporting documentation. Complaints shall be filed within one year after the date of the retaliation.

(2) Complaints 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) Investigate and attempt equitably to adjust controversies between applicants or employees and employers regarding claims of immigration-related retaliation under this Act, including administering oaths, subpoenaing and examining witnesses, issuing subpoenas duces tecum requiring the production of books, papers, records, and documents as may be evidence of any matter under inquiry, and examining and inspecting the books, papers, records, and documents as may relate to the question in dispute. Service of 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 the court.

(2) Take complaints of immigration-related retaliation in the name of the Director and his or her successors in office and prosecute actions for the collection of remedies and penalties for immigration-related retaliation for persons financially unable to prosecute the claims when in the judgment of the Department the 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 the actions. If there is a judgment rendered against the defendant, the court shall assess as part of the judgment the costs of the proceeding. Upon collection of the judgment, the Department shall pay from the proceeds of the judgment the costs to the person who is by law entitled to compensation. The Department may join in a single proceeding any number of immigration-related retaliation claims against the same employer, but the court shall have discretionary power to order a severance or separate trial for hearings.

(3) Make complaint in any court of competent jurisdiction of violations of this Act.

In addition to these powers, the Department may establish an administrative procedure to adjudicate claims and to issue final and binding administrative decisions on claims subject to the Administrative Review Law. To establish the procedure, the Director or the Director's authorized representative may adopt rules. The adoption, amendment, or rescission of rules for the 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 an immigration-related retaliation claim, and the employer or other party has neither: (i) made the required payment within 35 days after 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 employer, putative employer, or person acting on behalf of an employer 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 applicant, employee, putative employee, or independent contractor from making complaint or prosecuting his or her own claim for damages caused by immigration-related retaliation. Any applicant, employee, putative employee, or independent contractor aggrieved by an actual or suspected violation of this Act or any rule adopted under this Act may, within 2 years after the date of the retaliation, file suit in circuit court, in the county where the alleged violation occurred or where any person who is party to the action resides, or in the Court of Claims for any action filed against the State, without regard to exhaustion of any alternative administrative remedies provided in this Act. Actions may be brought by one or more applicants, employees, or independent contractors for and on behalf of themselves and other persons similarly situated.

Section 35. Remedies and penalties.

(a) An applicant, employee, or other person who is the subject of an immigration-related retaliation prohibited by this Act, or a representative of that applicant, employee, or 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 employee's election, liquidated damages of $30,000;

(2) a civil penalty in an amount not to exceed $10,000, payable to the applicant, employee, or independent contractor;

(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.

An action under this Act shall not limit or otherwise affect the applicability of other rights and remedies under an applicable employment law or under the Whistleblower Act.

(b) An employer 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 and $50,000 for each repeat violation of Section 15 within a 5-year period.

The penalty amount may be recovered in any administrative proceeding by the Department or a 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 used 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 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) An applicant, employee, or other person who is the subject of immigration-related retaliation prohibited by this Section, and who prevails in an action authorized by this Section, shall recover its reasonable attorney's fees and costs, including any expert witness costs.

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 representatives shall, within one year after 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, in accordance with the Illinois Administrative Procedure Act.

Section 99. Effective date. This Act takes effect January 1, 2025.".