Sen. Miguel del Valle
Filed: 2/7/2006
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1 | AMENDMENT TO SENATE BILL 2339
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2 | AMENDMENT NO. ______. Amend Senate Bill 2339 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Minimum Wage Law is amended by changing | ||||||
5 | Sections 3, 7, and 12 as follows:
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6 | (820 ILCS 105/3) (from Ch. 48, par. 1003)
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7 | Sec. 3. As used in this Act:
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8 | (a) "Director" means the Director of the Department of | ||||||
9 | Labor, and
"Department" means the Department of Labor.
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10 | (b) "Wages" means compensation due to an employee by reason | ||||||
11 | of his
employment, including allowances determined by the | ||||||
12 | Director in
accordance with the provisions of this Act for | ||||||
13 | gratuities and, when
furnished by the employer, for meals and | ||||||
14 | lodging actually used by the
employee.
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15 | (c) "Employer" includes any individual, partnership, | ||||||
16 | association,
corporation, limited liability company, business | ||||||
17 | trust, governmental or quasi-governmental body, or
any person | ||||||
18 | or group of persons acting directly or indirectly in the
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19 | interest of an employer in relation to an employee, for which | ||||||
20 | one or
more persons are gainfully employed on some day within a | ||||||
21 | calendar year.
An employer is subject to this Act in a calendar | ||||||
22 | year on and after the
first day in such calendar year in which | ||||||
23 | he employs one or more persons,
and for the following calendar | ||||||
24 | year.
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1 | (d) "Employee" includes any individual permitted to work by | ||||||
2 | an
employer in an occupation, but does not include any | ||||||
3 | individual permitted
to work:
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4 | (1) For an employer employing fewer than 4 employees | ||||||
5 | exclusive of
the employer's parent, spouse or child or | ||||||
6 | other members of his immediate
family.
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7 | (2) As an employee employed in agriculture or | ||||||
8 | aquaculture (A) if such
employee is
employed by an employer | ||||||
9 | who did not, during any calendar quarter during
the | ||||||
10 | preceding calendar year, use more than 500 man-days of | ||||||
11 | agricultural
or aquacultural
labor, (B) if such employee is | ||||||
12 | the parent, spouse or child, or other
member of the | ||||||
13 | employer's immediate family, (C) if such employee (i) is
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14 | employed as a hand harvest laborer and is paid on a piece | ||||||
15 | rate basis in
an operation which has been, and is | ||||||
16 | customarily and generally recognized
as having been, paid | ||||||
17 | on a piece rate basis in the region of employment,
(ii) | ||||||
18 | commutes daily from his permanent residence to the farm on | ||||||
19 | which he
is so employed, and (iii) has been employed in | ||||||
20 | agriculture less than 13
weeks during the preceding | ||||||
21 | calendar year, (D) if such employee (other
than an employee | ||||||
22 | described in clause (C) of this subparagraph): (i) is
16 | ||||||
23 | years of age or under and is employed as a hand harvest | ||||||
24 | laborer, is paid
on a piece rate basis in an operation | ||||||
25 | which has been, and is customarily
and generally recognized | ||||||
26 | as having been, paid on a piece rate basis in
the region of | ||||||
27 | employment, (ii) is employed on the same farm as his
parent | ||||||
28 | or person standing in the place of his parent, and (iii) is | ||||||
29 | paid
at the same piece rate as employees over 16 are paid | ||||||
30 | on the same farm.
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31 | (3) In domestic service in or about a private home.
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32 | (4) As an outside salesman.
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33 | (5) As a member of a religious corporation or | ||||||
34 | organization.
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1 | (6) At an accredited Illinois college or university | ||||||
2 | employed by the
college
or university at which he is a | ||||||
3 | student who is covered under the provisions
of the Fair | ||||||
4 | Labor Standards Act of 1938, as heretofore or hereafter
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5 | amended.
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6 | (7) For a motor carrier and with respect to whom the | ||||||
7 | U.S. Secretary of
Transportation has the power to establish | ||||||
8 | qualifications and maximum hours of
service under the | ||||||
9 | provisions of Title 49 U.S.C. or the State of Illinois | ||||||
10 | under
Section 18b-105 (Title 92 of the Illinois | ||||||
11 | Administrative Code, Part 395 -
Hours of Service of | ||||||
12 | Drivers) of the Illinois Vehicle
Code.
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13 | The above exclusions from the term "employee" may be | ||||||
14 | further defined
by regulations of the Director.
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15 | (e) "Occupation" means an industry, trade, business or | ||||||
16 | class of work
in which employees are gainfully employed.
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17 | (f) "Gratuities" means voluntary monetary contributions to | ||||||
18 | an
employee from a guest, patron or customer in connection with | ||||||
19 | services
rendered.
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20 | (g) "Outside salesman" means an employee regularly engaged | ||||||
21 | in making
sales or obtaining orders or contracts for services | ||||||
22 | where a major
portion of such duties are performed away from | ||||||
23 | his employer's place of
business.
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24 | (Source: P.A. 91-357, eff. 7-29-99.)
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25 | (820 ILCS 105/7) (from Ch. 48, par. 1007)
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26 | Sec. 7. The Director or his authorized representatives have | ||||||
27 | the authority to:
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28 | (a) Investigate and gather data regarding the wages, hours | ||||||
29 | and other
conditions and practices of employment in any | ||||||
30 | industry subject to this Act,
and may enter and inspect such | ||||||
31 | places and such records (and make such
transcriptions thereof) | ||||||
32 | at reasonable times during regular business hours,
not | ||||||
33 | including lunch time at a restaurant, question such employees, |
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1 | and
investigate such facts, conditions, practices or matters as | ||||||
2 | he may deem
necessary or appropriate to determine whether any | ||||||
3 | person has violated any
provision of this Act, or which may aid | ||||||
4 | in the enforcement of this Act.
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5 | (b) Require from any employer full and correct statements | ||||||
6 | and reports in
writing, including sworn statements, at such | ||||||
7 | times as the Director may deem
necessary, of the wages, hours, | ||||||
8 | names, addresses, and other information
pertaining to his | ||||||
9 | employees as he may deem necessary for the enforcement of
this | ||||||
10 | Act.
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11 | (c) Require by subpoena the attendance and testimony of | ||||||
12 | witnesses and the production of all books, records, and other | ||||||
13 | evidence relative to a matter under investigation or hearing. | ||||||
14 | The subpoena shall be signed and issued by the Director or his | ||||||
15 | or her authorized representative. If a person fails to comply | ||||||
16 | with any subpoena lawfully issued under this Section or a | ||||||
17 | witness refuses to produce evidence or testify to any matter | ||||||
18 | regarding which he or she may be lawfully interrogated, the | ||||||
19 | court shall, upon application of the Director or his or her | ||||||
20 | authorized representative, compel obedience by proceedings for | ||||||
21 | contempt.
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22 | (Source: P.A. 77-1451.)
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23 | (820 ILCS 105/12) (from Ch. 48, par. 1012)
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24 | Sec. 12. (a) If any employee is paid by his employer less | ||||||
25 | than the wage
to which he is entitled under the provisions of | ||||||
26 | this Act, the employee may
recover in a civil
action the amount | ||||||
27 | of any such underpayments together with costs and such
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28 | reasonable attorney's fees as may be allowed by the Court, and | ||||||
29 | damages of 2% of the amount of any such underpayments for each | ||||||
30 | month following the date of payment during which such | ||||||
31 | underpayments remain unpaid. Any
any
agreement between the | ||||||
32 | employee
him and the
his employer to work for less than such | ||||||
33 | wage is
no defense to such action. At the request of the |
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1 | employee or on motion
of the Director of Labor, the
Department | ||||||
2 | of Labor may make an assignment of such wage claim in trust for
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3 | the assigning employee and may bring any legal action necessary | ||||||
4 | to collect
such claim, and the employer shall be required to | ||||||
5 | pay the costs incurred in
collecting such claim. Every such | ||||||
6 | action shall be brought within
3 years from the date of the | ||||||
7 | underpayment. Such employer shall be liable
to the Department | ||||||
8 | of Labor for 20% of the total employer's underpayment
and shall | ||||||
9 | be additionally
liable to the employee for punitive damages in | ||||||
10 | the amount of 2% of the amount
of any such underpayments for | ||||||
11 | each month following the date of payment
during which such | ||||||
12 | underpayments
remain unpaid. These penalties
The Director may | ||||||
13 | promulgate rules for the collection of these
penalties. The | ||||||
14 | amount of a penalty may be determined, and the penalty may be
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15 | assessed, through an administrative hearing. The penalty may be | ||||||
16 | recovered in a
civil action brought by the Director of Labor in | ||||||
17 | any circuit court. The penalty
shall be imposed in cases in | ||||||
18 | which an employer's conduct is proven by a
preponderance of the | ||||||
19 | evidence to be willful. In any
such action, the Director of | ||||||
20 | Labor shall be represented by the Attorney
General.
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21 | (b) The Director is authorized to supervise the payment of | ||||||
22 | the unpaid
minimum wages and the unpaid overtime compensation | ||||||
23 | owing to any employee
or employees under Sections 4 and 4a of | ||||||
24 | this Act and may bring any legal
action necessary to recover | ||||||
25 | the amount of the unpaid minimum wages and unpaid
overtime | ||||||
26 | compensation and an equal additional amount as punitive | ||||||
27 | damages . Such employer shall also be liable to the Department | ||||||
28 | of Labor for 20% of the total employer's underpayment ,
and the | ||||||
29 | employer shall be required to pay the costs of any such legal | ||||||
30 | action .
The action shall be brought within 5 years from the | ||||||
31 | date of the failure to
pay
the wages or compensation.
Any sums | ||||||
32 | thus recovered
by the Director on behalf of an employee | ||||||
33 | pursuant to this subsection shall
be paid to the employee or | ||||||
34 | employees affected. Any sums which, more than one
year after |
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1 | being thus recovered, the Director is unable to pay to
an | ||||||
2 | employee shall be deposited into the General Revenue Fund.
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3 | (Source: P.A. 92-392, eff. 1-1-02.)
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4 | Section 10. The Illinois Wage Payment and Collection Act is | ||||||
5 | amended by changing Sections 2 and 14 as follows:
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6 | (820 ILCS 115/2) (from Ch. 48, par. 39m-2)
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7 | Sec. 2. For all employees, other than separated employees, | ||||||
8 | "wages"
shall be defined as any compensation owed an employee | ||||||
9 | by an employer pursuant
to an employment contract or agreement | ||||||
10 | between the 2 parties, whether
the amount is determined on a | ||||||
11 | time, task, piece, or any other basis of
calculation. Payments | ||||||
12 | to separated employees shall be termed "final
compensation" and | ||||||
13 | shall be defined as wages, salaries, earned commissions,
earned | ||||||
14 | bonuses, and the monetary equivalent of earned vacation and | ||||||
15 | earned
holidays, and any other compensation owed the employee | ||||||
16 | by the employer pursuant
to an employment contract or agreement | ||||||
17 | between the 2 parties. Where an
employer is legally committed | ||||||
18 | through a collective bargaining agreement
or otherwise to make | ||||||
19 | contributions to an employee benefit, trust or fund on
the | ||||||
20 | basis of a certain amount per hour, day, week or other period | ||||||
21 | of time,
the amount due from the employer to such employee | ||||||
22 | benefit, trust, or fund
shall be defined as "wage supplements", | ||||||
23 | subject to the wage collection
provisions of this Act.
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24 | As used in this Act, the term "employer" shall include any | ||||||
25 | individual,
partnership, association, corporation, limited | ||||||
26 | liability company, business trust, employment and
labor | ||||||
27 | placement agencies where wage payments are made
directly or | ||||||
28 | indirectly by the agency or business for work undertaken by
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29 | employees under hire to a third party pursuant to a contract | ||||||
30 | between the
business or agency with the third party, or any | ||||||
31 | person or group of
persons acting directly or indirectly in the | ||||||
32 | interest of an employer in
relation to an employee, for which |
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1 | one or more persons is gainfully employed.
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2 | As used in this Act, the term "employee" shall include any | ||||||
3 | individual
permitted to work by an employer in an occupation, | ||||||
4 | but shall not include any
individual:
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5 | (1) who has been and will continue to be free from | ||||||
6 | control and direction
over the performance of his work, | ||||||
7 | both under his contract of service with his
employer and in | ||||||
8 | fact; and
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9 | (2) who performs work which is either outside the usual | ||||||
10 | course of business
or is performed outside all of the | ||||||
11 | places of business of the employer unless
the employer is | ||||||
12 | in the business of contracting with third parties for the
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13 | placement of employees; and
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14 | (3) who is in an independently established trade, | ||||||
15 | occupation, profession
or business.
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16 | (Source: P.A. 89-364, eff. 8-18-95; 89-626, eff. 8-9-96.)
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17 | (820 ILCS 115/14) (from Ch. 48, par. 39m-14)
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18 | Sec. 14. (a) Any employer or any agent of an employer, who, | ||||||
19 | being able to pay wages,
final compensation, or wage | ||||||
20 | supplements and being under a duty to pay,
wilfully refuses to | ||||||
21 | pay as provided in this Act, or falsely denies the
amount or | ||||||
22 | validity thereof or that the same is due, with intent to secure
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23 | for himself or other person any underpayment of such | ||||||
24 | indebtedness or with
intent to annoy, harass, oppress, hinder, | ||||||
25 | delay or defraud the person to
whom such indebtedness is due, | ||||||
26 | upon conviction, is guilty of a Class C
misdemeanor. Each day | ||||||
27 | during which any violation of this Act continues
shall | ||||||
28 | constitute a separate and distinct offense.
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29 | (b) Any employer who has been demanded
ordered by the | ||||||
30 | Director of Labor or ordered by the court
to pay wages due an | ||||||
31 | employee and who shall fail to do so within 15 days
after such | ||||||
32 | demand or order is entered shall be liable to pay a penalty of | ||||||
33 | 1% per
calendar day to the employee for each day of delay in |
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1 | paying such wages to
the employee up to an amount equal to | ||||||
2 | twice the sum of unpaid wages due the
employee.
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3 | (c) Any employer, or any agent of an employer, who | ||||||
4 | knowingly discharges
or in any other manner knowingly | ||||||
5 | discriminates against any employee because
that employee
has | ||||||
6 | made a complaint to his employer, or to the Director of Labor | ||||||
7 | or his
authorized representative, that he or she has not been | ||||||
8 | paid in accordance
with the provisions of this Act, or because | ||||||
9 | that employee has caused to
be instituted any proceeding under | ||||||
10 | or related to this Act, or because that
employee has testified | ||||||
11 | or is about to testify in an investigation or proceeding
under | ||||||
12 | this Act, is guilty, upon conviction, of a Class C misdemeanor.
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13 | (Source: P.A. 83-202.)
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14 | Section 99. Effective date. This Act takes effect upon | ||||||
15 | becoming law.".
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