Rep. Luis Arroyo

Filed: 3/15/2013

 

 


 

 


 
09800HB2649ham001LRB098 07683 JLS 42471 a

1
AMENDMENT TO HOUSE BILL 2649

2    AMENDMENT NO. ______. Amend House Bill 2649 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Employee Classification Act is amended by
5changing Sections 5, 25, 30, and 40 and by adding Section 63 as
6follows:
 
7    (820 ILCS 185/5)
8    Sec. 5. Definitions. As used in this Act:
9    "Construction" means any constructing, altering,
10reconstructing, repairing, rehabilitating, refinishing,
11refurbishing, remodeling, remediating, renovating, custom
12fabricating, maintenance, landscaping, improving, wrecking,
13painting, decorating, demolishing, and adding to or
14subtracting from any building, structure, highway, roadway,
15street, bridge, alley, sewer, ditch, sewage disposal plant,
16water works, parking facility, railroad, excavation or other

 

 

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1structure, project, development, real property or improvement,
2or to do any part thereof, whether or not the performance of
3the work herein described involves the addition to, or
4fabrication into, any structure, project, development, real
5property or improvement herein described of any material or
6article of merchandise. Construction shall also include moving
7construction related materials on the job site to or from the
8job site.
9    "Contractor" means any individual, sole proprietor,
10partnership, firm, corporation, limited liability company,
11association or other legal entity permitted by law to do
12business within the State of Illinois who engages in
13construction as defined in this Act.
14    "Contractor" includes a general contractor and a
15subcontractor.
16    "Department" means the Department of Labor.
17    "Director" means the Director of the Department of Labor.
18    "Employer" means any contractor that employs individuals
19deemed employees under Section 10 of this Act; however,
20"employer" does not include (i) the State of Illinois or its
21officers, agencies, or political subdivisions or (ii) the
22federal government.
23    "Entity" means any contractor for which an individual is
24performing services and is not classified as an employee under
25Section 10 of this Act; however, "entity" does not include (i)
26the State of Illinois or its officers, agencies, or political

 

 

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1subdivisions or (ii) the federal government.
2    "Interested party" means a person with an interest in
3compliance with this Act.
4    "Performing services" means the performance of any
5constructing, altering, reconstructing, repairing,
6rehabilitating, refinishing, refurbishing, remodeling,
7remediating, renovating, custom fabricating, maintenance,
8landscaping, improving, wrecking, painting, decorating,
9demolishing, and adding to or subtracting from any building,
10structure, highway, roadway, street, bridge, alley, sewer,
11ditch, sewage disposal plant, water works, parking facility,
12railroad, excavation or other structure, project, development,
13real property or improvement, or to do any part thereof,
14whether or not the performance of the work herein described
15involves the addition to, or fabrication into, any structure,
16project, development, real property or improvement herein
17described of any material or article of merchandise.
18Construction shall also include moving construction related
19materials on the job site to or from the job site.
20(Source: P.A. 95-26, eff. 1-1-08.)
 
21    (820 ILCS 185/25)
22    Sec. 25. Enforcement.
23    (a) Any interested party may file a complaint with the
24Department against an entity or employer covered under this Act
25if there is a reasonable belief that the entity or employer is

 

 

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1in violation of this Act. It shall be the duty of the
2Department to enforce the provisions of this Act. The
3Department shall have the power to conduct investigations in
4connection with the administration and enforcement of this Act
5and any investigator with the Department shall be authorized to
6visit and inspect, at all reasonable times, any places covered
7by this Act and shall be authorized to inspect, at all
8reasonable times, documents related to the determination of
9whether an individual is an employee under Section 10 of this
10Act. The Director of Labor or his or her representative may
11compel, by subpoena, the attendance and testimony of witnesses
12and the production of books, payrolls, records, papers, and
13other evidence in any investigation and may administer oaths to
14witnesses.
15    (b) Whenever the Department believes upon investigation
16that there has been a violation of any of the provisions of
17this Act or any rules or regulations promulgated under this
18Act, the Department may: (i) issue and cause to be served on
19any party an order to cease and desist from further violation
20of the Act, (ii) take affirmative or other action as deemed
21reasonable to eliminate the effect of the violation, (iii)
22collect the amount of any wages, salary, employment benefits,
23or other compensation denied or lost to the individual, and
24(iv) assess any civil penalty allowed by this Act. The civil
25penalties assessed by the Department as well as any other
26relief requested by the Department shall be recoverable in an

 

 

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1action brought in the name of the people of the State of
2Illinois by the Attorney General.
3    (c) If, upon investigation, the Department finds cause to
4believe that Section 20 or Section 55 of this Act has been
5violated, the Department shall notify the employer, in writing,
6of its finding and any proposed relief due and penalties
7assessed and that the matter will be referred to an
8Administrative Law Judge to schedule a formal hearing in
9accordance with the Illinois Administrative Procedure Act.
10    (d) The employer has 14 calendar days from the date of the
11Department's finding to answer the allegations contained in the
12Department's finding. If an employer fails to answer or fails
13to answer all allegations contained in the Department's
14finding, any unanswered allegations and findings shall be
15deemed to be admitted to be true and shall be so found in the
16final decision issued by the Administrative Law Judge.
17    (e) A final decision of an Administrative Law Judge issued
18pursuant to this Section is subject to the provisions of the
19Administrative Review Law and shall be enforceable in an action
20brought in the name of the people of the State of Illinois by
21the Attorney General.
22    (f) The Department shall have the authority to adopt
23reasonable rules for the hearing process. The General Assembly
24finds that the adoption of rules to implement this Section is
25deemed an emergency and necessary for the public interest and
26welfare.

 

 

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1(Source: P.A. 95-26, eff. 1-1-08.)
 
2    (820 ILCS 185/30)
3    Sec. 30. Attorney General; State's Attorneys. Criminal
4violations of this Act shall be prosecuted by the Attorney
5General or the appropriate State's Attorney. The Department
6shall refer matters to the Attorney General and the appropriate
7State's Attorney upon determining that a criminal violation may
8have occurred. In all other proceedings the Department shall be
9represented by the Attorney General's Office.
10(Source: P.A. 95-26, eff. 1-1-08.)
 
11    (820 ILCS 185/40)
12    Sec. 40. Penalties.
13    (a) An employer or entity that violates any of the
14provisions of this Act or any rule adopted under this Act shall
15be subject to a civil penalty not to exceed $1,500 for each
16violation found in the first audit by the Department. Following
17a first audit, an employer or entity shall be subject to a
18civil penalty not to exceed $2,500 for each repeat violation
19found by the Department within a 5 year period. For purposes of
20this Section, each violation of this Act for each person and
21for each day the violation continues shall constitute a
22separate and distinct violation. In determining the amount of a
23penalty, the Director shall consider the appropriateness of the
24penalty to the employer or entity charged, upon the

 

 

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1determination of the gravity of the violations.
2    (b) The amount of the penalty, when finally determined, may
3be recovered in any administrative proceeding or a civil action
4filed in any circuit court by the Director of Labor, or a
5person aggrieved by a violation of this Act or any rule adopted
6under this Act.
7        (1) The Department shall distribute to all affected
8    employees 10% of the civil penalty recovered as a result of
9    any administrative proceeding or civil action brought by
10    the Department. The remaining 90% of the amount recovered
11    shall be submitted to the Director of Labor.
12        (2) In any civil action brought by an interested party
13    pursuant to this Section, the circuit court shall award the
14    interested party 10% of the amount recovered. In such case,
15    the remaining amount recovered shall be submitted to the
16    Director of Labor.
17    (c) Any uncollected amount shall be subject to the
18provisions of the Illinois State Collection Act of 1986.
19(Source: P.A. 95-26, eff. 1-1-08.)
 
20    (820 ILCS 185/63 new)
21    Sec. 63. Individual liability. In addition to an individual
22who is an employer pursuant to Section 5 of this Act, any
23officer of a corporation or agent of an employer who knowingly
24permits such employer to violate the provisions of this Act may
25be held individually liable for all violations and penalties

 

 

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1assessed by the Department.".