HB4169ham001 98TH GENERAL ASSEMBLY

Rep. Elizabeth Hernandez

Filed: 4/8/2014

09800HB4169ham001 LRB098 15723 JLS 58412 a

AMENDMENT TO HOUSE BILL 4169

AMENDMENT NO. ______. Amend House Bill 4169 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Domestic Workers' Bill of Rights Act.

Section 5. Purpose and findings. Domestic workers play a critical role in Illinois' economy, working to ensure the health and prosperity of Illinois families and freeing others to participate in the workforce. Despite the value of their work, domestic workers have historically been excluded from the protections under State law extended to workers in other industries. Domestic workers are predominantly women who labor to support families and children of their own and who receive low pay and minimal or no benefits. Without clear standards governing their workplaces and working alone and behind closed doors, domestic workers are among the most isolated and vulnerable workforce in the State. Workforce projections are one of growth for domestic workers, but the lack of decent pay and other workplace protections undermines the likelihood of building and maintaining a reliable and experienced workforce that is able to meet the needs of Illinois families. Therefore, the General Assembly finds that because domestic workers care for the most important elements of Illinoisans' lives--our families and our homes--it is in the interest of employees, employers, and the people of Illinois to ensure that the rights of domestic workers are respected, protected, and enforced, and that this Act shall be interpreted liberally to aid this purpose.

Section 10. Definitions. As used in this Act:

"Department" means the Department of Labor.

"Director" means the Director of Labor and his or her authorized representatives.

"Domestic work" means: (1) housekeeping; (2) house cleaning; (3) home management; (4) nanny services including childcare and child monitoring; (5) caregiving, personal care, or home health services for elderly persons or persons with an illness, injury, or disability who require assistance in caring for themselves; (6)laundering; (7) cooking; (8) companion services; (9)chauffeuring; and (10) other household services for members of households or their guests in or about a private home or residence or any other location where the domestic work is performed.

"Domestic worker" means a person employed to perform domestic work. "Domestic worker" does not include: (i) a person performing domestic work who is the employer's parent, spouse, child, or other member of his or her immediate family, exclusive of individuals whose primary work duties are caregiving, companion services, personal care, or home health services for elderly persons or persons with an illness, injury, or disability who require assistance in caring for themselves;(ii) child and day care home providers participating in the child care assistance program under Section 9A-11 of the Illinois Public Aid Code; (iii) a person who is employed by one or more employers in or about a private home or residence or any other location where the domestic work is performed for less than 8 hours in the aggregate in any workweek on a regular basis, exclusive of individuals whose primary work duties are caregiving, companion services, personal care, or home health services for elderly persons or persons with an illness, injury, or disability who require assistance in caring for themselves; or (iv) a person who (A) 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 and in fact and (B) is engaged in an independently established trade, occupation, profession, or business or the person performing domestic work is deemed a legitimate sole proprietor or partnership under subsection (c) of Section 10 of the Employee Classification Act, except that the terms "contractor" and "subcontractor" shall be substituted for "employer" and "domestic worker" respectively, as defined under this Act.

"Employee" means a domestic worker.

"Employ" includes to suffer or permit to work.

"Employer" means any individual; partnership; association; corporation; limited liability company; business trust; employment and labor placement agencies where wages are made directly or indirectly by the agency or business for work undertaken by employees under hire to a third party pursuant to a contract between the business or agency with the third party; the State of Illinois and local governments, or any political subdivision of the State or local government, or State or local government agency; for which one or more persons is gainfully employed, express or implied, whether lawfully or unlawfully employed, who employs a domestic worker or who exercises control over the domestic worker's wage, remuneration, or other compensation, hours of employment, place of employment, or working conditions, or whose agent or any other person or group of persons acting directly or indirectly in the interest of an employer in relation to the employee exercises control over the domestic worker's wage, remuneration or other compensation, hours of employment, place of employment, or working conditions.

"Live-in domestic worker" means a domestic worker residing on the employer's premises during the tenure of employment.

"Work time" means the time during which a domestic worker is suffered or permitted to work, whether or not required to do so, and whether or not any physical or mental exertion is expended by the domestic worker.

Section 15. Work time.

(a) An employer shall pay the domestic worker for all work time.

(b) Only periods during which a domestic worker is completely relieved from duty and which are long enough to enable him or her to use the time effectively for his or her own purposes (at least 30 minutes) are not hours worked, such as a 30-minute meal period. Periods of shorter duration must be counted as work time.

(c) When a domestic worker is on duty for a period of 24 consecutive hours or more on a regular basis, the employer and the domestic worker may agree in writing prior to performance of the work to exclude a regularly scheduled sleeping period of no more than 8 hours from working time for each 24-hour period, provided that the employer provides sleeping quarters that are adequate, decent, safe, and sanitary, and the domestic worker can usually enjoy an uninterrupted night's sleep. If the sleeping time is interrupted by a call to duty, the interruption must be counted as hours worked. If no prior written agreement is made, all meal, rest, and sleeping periods shall constitute work time.

(d) All live-in domestic workers shall be provided a sleeping period of at least 8 hours. If the sleeping time is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get at least 5 continuous hours of sleep during the scheduled period on a regular basis the entire time is work time.

Section 20. Sleeping facilities, meals, and costs.

(a) An employer shall not charge a domestic worker for the cost of lodging, meals, equipment, uniforms, transportation, or any other cost related to his or her employment.

(b) All live-in domestic workers shall be provided private quarters for sleeping and dressing typically used for that purpose, with reasonable access to bathroom, kitchen, and laundry facilities. No domestic worker shall be required to share a bed.

(c) Lodging under this Section must be in a condition that is safe, healthful, fit for occupancy, and in compliance with terms of a lease, if any, and with the requirements of federal, State, and local law.

(d) Termination of a domestic worker's lodging with his or her employer is subject to a minimum of 14 days' notice to vacate if such lodging is the domestic worker's primary residence. If such notice is not provided, the employer shall pay the domestic worker 14 days of pay at the regular rate to be paid on the date the domestic worker must vacate the lodging with his or her employer, in addition to any severance pay that is due the worker. Such notice need not be given nor payment made under limited and extraordinary circumstances, such as when there is probable cause the domestic worker has engaged in child or elder abuse as defined by Illinois law.

(e) An employer shall not employ a domestic worker for work time of more than 5 hours per day without the opportunity to eat a meal, whether during work time or not. The opportunity to eat a meal shall be provided no less than once in every 8 hours of consecutive work hours.

Section 25. Show-up time, scheduled work time and termination.

(a) Two hours of pay at the regular rate shall be paid to any domestic worker who reports to work but is not put to work and has not received at least 2 hours prior notice to not to report for work.

(b) Notwithstanding subsection (a), if an employer does not require the domestic worker to report to work for 2 or more consecutive days on a temporary basis for any reason, such as the employer's vacation, or any other change in the work time schedule on a temporary or permanent basis, the employer shall provide to the domestic worker notice at least 7 days in advance of the first day the worker is not required to report to work or there is a change in schedule. If such notice is not provided and the change in work hours results in fewer work hours, the domestic worker shall be paid the hours scheduled to work or 4 hours, whichever is greater, at the regular rate of pay and shall be paid for each subsequent day of involuntary time off if no notice is provided. In circumstances where the change in the work time schedule is not foreseeable by the employer, making advance notice impossible, notice shall be given as soon as practical, but not less than 24 hours after the worker was scheduled for work but was not put to work. In that circumstance, the domestic worker shall be paid in accordance with subsection (a).

(c) If an employer terminates a domestic worker, the employer shall provide to the domestic worker notice of termination at least 14 days in advance of the first day the worker is not required to report to work. If such notice is not provided to domestic workers who work 20 or more hours in any workweek on a regular basis for the terminating employer, the employer shall pay the domestic worker 14 days of severance pay at the regular rate of pay from the date of termination, to be paid no later than the day of termination. If such notice is not provided to domestic workers who work more than 8 hours and less than 20 hours in any workweek on a regular basis for the terminating employer, the employer shall pay the domestic worker 7 days of severance pay at the regular rate of pay from the date of termination, to be paid no later than the date of termination. Severance pay need not be paid under limited and extraordinary circumstances, such as when there is probable cause the domestic worker has engaged in child or elder abuse as defined by Illinois law.

(d) Any provision included in a relevant collective agreement supersedes this Section, if applicable.

Section 30. Paid time off.

(a) If a domestic worker works for one employer more than 8 hours in any workweek on a regular basis, the employer shall provide paid time off.

(b) Paid time off shall accrue at the rate of one hour of paid time off for every 40 hours of working time for one employer up to the maximum of 50 hours paid time off. Paid time off shall be accrued from the first day of employment, but may not be used until the employee has worked for the employer for 6 months, unless the employer agrees. Once the employee has worked for 6 months, paid time off may be used as accrued, or be loaned by the employer, at its discretion, to the employee in advance of such accrual. In cases where an employer has loaned paid time off in advance of accrual, an employer shall not require a domestic worker to reimburse it for any unearned paid time off. Paid time off shall be permitted to be used in hourly increments. It is up to the domestic worker to determine when and how much accrued paid time off to take under this Act. However, paid time off shall not be used for more than 3 consecutive weeks if it results in a complete absence from employment from the employer subject to the paid time off, unless the employer agrees. Paid time off shall be provided upon the oral request of the domestic worker and for any purpose of the domestic worker's choosing. If the necessity for paid time off is foreseeable, the domestic worker shall provide the employer with not less than 7 days' oral notice before the date the leave is to begin. If the necessity for leave is not foreseeable, the domestic worker shall provide such notice as soon as is practical after the domestic worker is aware of the necessity of such leave. The employer may not require, as a condition of providing paid time off under this Act, that the domestic worker search for or find a replacement worker to cover the hours during which the domestic worker is on paid time off leave.

(c) Paid time off shall carry over annually to the extent not used by the domestic worker, provided that nothing in this Act shall be construed to require an employer to allow a worker to use more than 50 hours of paid time off in a year unless an employer agrees to do so.

(d) Upon oral request, an employer shall provide to a domestic worker an annual statement in writing indicating the amount and periods of accrued paid time off, unless the employer requires the employee to maintain such records as provided in Section 40 of this Act.

(e) During any period a domestic worker takes leave under this Act, the employer shall maintain coverage for the domestic worker and any family member under any group health plan for the duration of such leave at at least the level and conditions of coverage that would have been provided if the domestic worker had not taken the leave.

Section 35. Privacy. An employer is not permitted to videotape or otherwise record the domestic worker in any of the bathrooms, in the area where the sleeping accommodations are provided while the domestic worker is sleeping, or, in the case of a live-in domestic worker, the domestic worker's living area.

Section 40. Recordkeeping requirements.

(a) An employer subject to any provision of this Act shall make and preserve records that document the name and address of each employee, whether or not the employee was a live-in domestic worker, the work hours each day in each workweek, the rates of pay, the amount paid each pay period, all deductions made from wages or final compensation, the number of paid time off hours earned each year and the dates on which paid time off hours were taken and paid, a copy of a written contract, if applicable, any charges or deduction from wages for any reason, and any other information the Director may by rule deem necessary and appropriate for enforcement of this Act. The employer may use an accountant or payroll or similar service to make and preserve records on the employer's behalf required under this Section.

(b) The employer is required to maintain these records however, the employer may require the employee to record hours worked and paid time off information and submit such record to the employer. Where there is a reasonable agreement, documented as provided under subsection (b) of Section 45, the written contract may be used to establish the employee's hours of work in lieu of maintaining precise records of the hours actually worked. The employer shall keep a copy of the contract and indicate that the employee's work time generally coincides with the contract. If it is found there is a significant deviation from the initial contract, a separate record shall be kept for that period or a new contract shall be reached that reflects actual facts.

(c) An employer subject to any provision of this Act shall preserve those records for a period of not less than 3 years and shall make reports from the records as prescribed by rule or order of the Director, unless the records relate to an ongoing investigation or enforcement action under this Act, in which case the records must be maintained until there is an exhaustion of remedies.

(d) An employer shall, upon the oral request of a current or former employee or his or her representative, make these records available for inspection and copying by a current or former employee or his or her representative, at an agreed upon location and time within 7 calendar days after such a request. If, however, the employer can reasonably show such deadline cannot be met, the employer shall have an additional 7 days to comply. An employer may charge a fee for providing a copy of such information. The fee shall be limited to the actual cost of duplicating the information.

(e) In the absence of employer records, a domestic worker may not be denied recovery of wages or final compensation on the basis that the domestic worker is unable to prove the precise extent of uncompensated work or final compensation. If an employer requires evidence of hours worked for other employers, a sworn statement by the employee stating that he or she has performed or is scheduled to perform domestic work for more than 8 hours in the aggregate for the relevant workweek shall satisfy any documentation requirements of hours worked under this Act. The employer shall not require more than one sworn statement in a calendar quarter if the hours the employee has performed or is scheduled to perform domestic work have not decreased to less than 9 hours in the aggregate in any workweek in that calendar quarter or less than 100 hours in the aggregate in the calendar quarter. An employer that requires evidence of hours worked must give the domestic worker written notice of such request and allow no less than 10 days or until the next scheduled work day, whichever is greater, for the domestic worker to comply.

Section 45. Notice and written contract. The Department of Labor shall create a sample written notice and a sample written contract and shall make these documents available for retrieval from the Department's website.

(a) Notice. An employer shall notify all domestic workers and, upon oral request disclose in writing, the following information, when an offer of employment is made to a domestic worker:

(1) the starting date, time, and place of employment;

(2) the wage rates to be paid;

(3) the frequency of the payment of wages;

(4) the kinds of domestic work for which the domestic worker may be employed;

(5) the hours per day, days per week, and period of employment, including any meal breaks and rest periods. Where work hours are irregular from day to day or week to week by mutual agreement, an average monthly work schedule may satisfy this requirement;

(6) leave policies for both paid and unpaid time off for the domestic worker;

(7) notice and other policies for involuntary time off for the domestic worker;

(8)policies regarding notice of termination and severance pay;

(9) any employee benefit to be provided, and any costs to be charged for each of them;

(10) any other terms and conditions of employment, including any workplace hazards that may make the domestic worker vulnerable to illnesses and other physical problems;

(11) the employer's contact information, including his or her full name, mailing address, and phone number; and

(12) any provision included in a relevant collective bargaining agreement, if applicable.

(b) Written contract. If the domestic worker works for one employer more than 8 hours in any workweek on a regular basis, the employer shall provide a written contract that includes:

(1) the starting date, time, and place of employment;

(2) the rate of pay including overtime and additional compensation for added duties or multilingual skills;

(3) the frequency of the payment of wages;

(4) work time and, when applicable, meal breaks and rest periods, paid and unpaid time off, vacations and holidays, and any foreseeable changes in work schedule, such as a reduction or increase in hours per week or weeks per month;

(5) any benefits the employer provides and any costs the domestic worker is expected to pay associated with those benefits such as health insurance, if any;

(6) living accommodations provided by the employer and policies on vacating the premises;

(7) the responsibilities associated with the job;

(8) any other terms and conditions of employment, including workplace hazards that may make the domestic worker vulnerable to illnesses and other physical problems;

(9) the process for addressing increasing wages and the process for addressing grievances;

(10) the right to privacy as required under Section 35 of this Act;

(11) show up time, changes in scheduled work time policies, and termination and severance pay policies;

(12) the contract period;

(13) reimbursement for work-related expenses; and

(14) any other rights or benefits afforded to the domestic worker, including State and federal employment taxes paid or to be paid by the employer related to the domestic worker's employment and notice of employment rights in State law; and

(15) any provision included in a relevant collective bargaining agreement, if applicable.

If a valid written contract that complies with this Section is entered into by an individual domestic worker and an employer, the written contract may include an alternative reasonable agreement as to certain provisions of this Act, as indicated in those subsections, as long as the domestic worker is compensated for all work time.

Section 50. Prohibited acts.

(a) Interference with rights.

(1) It shall be unlawful and a violation of this Act for any employer or any other person who discharges, threatens, penalizes, or in any other manner discriminates, retaliates, or takes any adverse action against an employee, because the employee or a person or organization acting on the employee's behalf: (i) exercises rights or attempts to exercise rights under this Act; (ii) opposes practices such employee believes to be in violation of this Act; or (iii) supports the exercise of rights under this Act. Exercising rights, opposing practices, or supporting the exercise of rights under this Act shall include, but not be limited to: (i) filing an action or instituting or causing to be instituted any proceeding under or related to this Act; (ii) providing or preparing to provide any information in connection with any inquiry or proceeding relating to any right provided under this Act; (iii) testifying or preparing to testify in any inquiry or proceeding relating to any right provided under this Act, in a public hearing, or to a community organization; or (iv) informing any other person that his or her employer engages in conduct that the employee reasonably and in good faith believes violates any provisions of this Act.

(2) An agreement by an employee to waive his or her rights under this Act is void as against public policy. The benefits provided to employees under this Act may not be diminished by a collective bargaining agreement or an employment benefit program or plan entered into or renewed after the effective date of this Act.

(3) It shall be unlawful for an employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided under or in connection with this Act including, but not limited to, using the taking of paid time off as a negative factor in an employment action such as hiring, termination, evaluation, promotion, discipline, or counting the paid time off under a no-fault attendance policy.

(b) Nothing in this Act shall limit an employer's ability to provide more generous wages, benefits, or working conditions than those provided under this Act.

Section 55. Enforcement.

(a) A domestic worker aggrieved by a violation of this Act or any rule adopted under this Act shall be entitled to recover, through a claim filed with the Department of Labor or in a civil action, all legal relief, including actual, compensatory, and punitive damages plus the penalties provided herein, with interest at the prevailing rate as is necessary to remedy violations of this Act, and such equitable relief as may be appropriate. An action may be brought to the Department of Labor or in a civil action no more than 3 years after the date of the last event constituting the alleged violation for which the action is brought. Actions may be brought by one or more domestic workers for and on behalf of themselves and other domestic workers similarly situated. The Department and the court in such an action shall, in addition to any judgment awarded to the domestic worker, allow reasonable attorney's fees, reasonable expert witness fees, and other costs of the action to be paid by the defendant or employer. In addition, any employer that the Department or a court finds to have violated any provision of this Act or any rule adopted under this Act, when the damages equal to the amount of wages, salary, employment benefits, final compensation, or other compensation denied or lost the Department or the court has ordered to be paid by such employer is less than $1,000 and when the employer's conduct is proven by a preponderance of the evidence to be willful, repeated, or with reckless disregard of this Act or any rule adopted under this Act, the employer is subject to a civil money penalty not to exceed $250 for each separate offense, payable to the domestic worker. Any employer that the Department or a court finds to have violated any provision of this Act or any rule adopted under this Act, and the damages equal to the amount of wages, salary, employment benefits, final compensation, or other compensation denied or lost the Department or the court has ordered to be paid by such employer is $1,000 or more, and where the employer's conduct is proven by a preponderance of the evidence to be willful, repeated, or with reckless disregard of this Act or any rule adopted under this Act, the employer is subject to a civil money penalty not to exceed $3,000 for each separate offense, payable to the domestic worker. In determining the amount of the penalty, the gravity of the violation shall be considered. Employers who have employed less than 3 domestic workers throughout the duration of employment of the aggrieved employee and have been found to have violated only one provision of this Act, and where the employer's conduct is not proven to be willful, repeated, or with reckless disregard of this Act or any rule adopted under this Act, that employer shall not be subject to the civil money penalties in this subsection.

(b) It shall be the duty of the Department of Labor to enforce the provisions of this Act. Any person may file a complaint with the Department against an entity or employer covered under this Act alleging that the entity or employer is in violation of this Act. The Department shall have the power to conduct investigations in connection with the administration and enforcement 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. If, upon investigation, the Department finds cause to believe that this Act has been violated, the Department shall notify the parties in writing, and the matter will be referred to an Administrative Law Judge to schedule a formal hearing.

(c) 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 of Labor or her or his authorized representative may promulgate rules and regulations. The adoption, amendment, or rescission of rules and regulations for such a procedure shall be in conformity with the requirements of the Illinois Administrative Procedure Act.

(d) An individual whose rights have been violated under this Act may seek any and all legal and equitable relief to remedy violations of this Act, including but not limited to wages and overtime not paid. The administrative procedures established under subsection (c) for enforcement shall supersede the administrative enforcement procedures set forth in the Minimum Wage Law and the One Day in Rest in Seven Act.

(e) Where the Department has found that an employer has failed to pay wages or overtime to an employee as required by the Minimum Wage Law the employee shall be entitled to receive the penalties provided for under the Minimum Wage Law.

(f) Where a complaint has been filed with the Department, any employer who has been ordered by the Department or ordered by the court to pay wages, and benefits, and other compensation or other relief due under this Act to an employee shall be required to pay a non-waivable administrative fee to the Department of Labor in the amount of $100 if the amount ordered by the Department as wages owed is $1,000 or less; $250 if the amount ordered by the Department as wages owed is more than $1,000, but $3,000 or less; $500 if the amount ordered by the Department as wages owed is more than $3,000, but less than $10,000; and $1,000 if the amount ordered by the Department as wages owed is $10,000 or more. Any employer who has been ordered by the Department or ordered by a court to pay such wages, benefits, and other compensation or relief, and who fails to seek timely review of such an order as provided under this Act and who fails to comply within 15 calendar days after such demand or within 35 days of an administrative or court order is entered shall also be liable to pay a penalty to the Department of Labor of 20% of the amount found owing.

(g) Any employer, or any agent of an employer, who discharges or in any manner discriminates against any employee because that employee has made a complaint to his employer, to the Director of Labor or his authorized representative, in a public hearing, or to a community organization that he or she has not been paid in accordance with the provisions of this Act, or because that employee has caused to be instituted any proceeding under or related to this Act, or because that employee has testified in an investigation or proceeding under this Act, shall be entitled to recover through a claim filed with the Department of Labor or in a civil action, in the case of discrimination or retaliation, all legal and equitable relief as may be appropriate and attorney's fees and costs.

(h) A final decision of an Administrative Law Judge issued pursuant to this Section is subject to the provisions of the Administrative Review Law and shall be enforceable in an action brought in the name of the people of the State of Illinois by the Attorney General.

(i) Necessary legal action may be brought by the Department on behalf of the domestic worker to collect the judgment, and the employer shall be required to pay the costs incurred in collecting the judgment.

(j) A domestic worker or a representative of domestic workers aggrieved by a violation of this Act or any rule under this Act may file suit in circuit court in the county where the alleged violation occurred or where any domestic worker who is a party to this action resides, without regard to exhaustion of remedies provided in this Act. Actions may be brought by one or more domestic workers for and on behalf of themselves and other domestic workers similarly situated.

(k) All moneys recovered as fees and civil penalties by the Department under this Act, except those owing to the affected employee, shall be deposited into the Domestic Workers' Fund, a special fund that is hereby created in the State treasury. Moneys shall be used by the Department for administration, investigation and other expenses incurred in carrying out its duties under this Act. Any moneys in the Fund at the end of the fiscal year in excess of those moneys necessary for the Department to carry out its powers and duties under this Act shall be available to the Department for the next fiscal year for any of its duties.

(l) The Director shall adopt rules necessary to administer and enforce this Act in accordance with the Illinois Administrative Procedure Act. The Attorney General of Illinois may intervene on behalf of the Department if the Department certifies that the case is of general public importance. Upon such intervention the court may award such relief as is authorized to be granted an employee who has filed a complaint or whose representative has filed a complaint under this Section.

(m) Nothing herein shall be construed to prevent any employee from making complaint or prosecuting his or her own claim. Any employee aggrieved by a violation of this Act or any rule adopted under this Act may file suit in circuit court of Illinois, in the county where the alleged violation occurred or where any employee who is party to the action resides, without regard to exhaustion of administrative remedies provided in this Act. Actions may be brought by one or more employees for and on behalf of themselves and other employees similarly situated.

(n) An individual whose rights have been violated under this Act may seek any and all remedies provided in this Act, including reasonable attorney's fees for the prevailing employee, whether those remedies are obtained through court order, a suit, or a claim that is settled by private agreement. The rights and remedies specified under this Act are cumulative and nonexclusive and are in addition to any other rights or remedies afforded by contract or under other provisions of Illinois law.

Section 90. The State Finance Act is amended by adding Section 5.855 as follows:

(30 ILCS 105/5.855 new)

Sec. 5.855. The Domestic Workers' Fund.

Section 91. The Illinois Human Rights Act is amended by changing Section 2-101 as follows:

(775 ILCS 5/2-101) (from Ch. 68, par. 2-101)

Sec. 2-101. Definitions. The following definitions are applicable strictly in the context of this Article.

(A) Employee.

(1) "Employee" includes:

(a) Any individual performing services for remuneration within this State for an employer;

(b) An apprentice;

(c) An applicant for any apprenticeship.

(2) "Employee" does not include:

(a) (Blank); Domestic servants in private homes;

(b) Individuals employed by persons who are not "employers" as defined by this Act;

(c) Elected public officials or the members of their immediate personal staffs;

(d) Principal administrative officers of the State or of any political subdivision, municipal corporation or other governmental unit or agency;

(e) A person in a vocational rehabilitation facility certified under federal law who has been designated an evaluee, trainee, or work activity client.

(B) Employer.

(1) "Employer" includes:

(a) Any person employing 15 or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation;

(b) Any person employing one or more employees when a complainant alleges civil rights violation due to unlawful discrimination based upon his or her physical or mental disability unrelated to ability or sexual harassment;

(c) The State and any political subdivision, municipal corporation or other governmental unit or agency, without regard to the number of employees;

(d) Any party to a public contract without regard to the number of employees;

(e) A joint apprenticeship or training committee without regard to the number of employees.

(2) "Employer" does not include any religious corporation, association, educational institution, society, or non-profit nursing institution conducted by and for those who rely upon treatment by prayer through spiritual means in accordance with the tenets of a recognized church or religious denomination with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, society or non-profit nursing institution of its activities.

(C) Employment Agency. "Employment Agency" includes both public and private employment agencies and any person, labor organization, or labor union having a hiring hall or hiring office regularly undertaking, with or without compensation, to procure opportunities to work, or to procure, recruit, refer or place employees.

(D) Labor Organization. "Labor Organization" includes any organization, labor union, craft union, or any voluntary unincorporated association designed to further the cause of the rights of union labor which is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or apprenticeships or applications for apprenticeships, or of other mutual aid or protection in connection with employment, including apprenticeships or applications for apprenticeships.

(E) Sexual Harassment. "Sexual harassment" means any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.

(F) Religion. "Religion" with respect to employers includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.

(G) Public Employer. "Public employer" means the State, an agency or department thereof, unit of local government, school district, instrumentality or political subdivision.

(H) Public Employee. "Public employee" means an employee of the State, agency or department thereof, unit of local government, school district, instrumentality or political subdivision. "Public employee" does not include public officers or employees of the General Assembly or agencies thereof.

(I) Public Officer. "Public officer" means a person who is elected to office pursuant to the Constitution or a statute or ordinance, or who is appointed to an office which is established, and the qualifications and duties of which are prescribed, by the Constitution or a statute or ordinance, to discharge a public duty for the State, agency or department thereof, unit of local government, school district, instrumentality or political subdivision.

(J) Eligible Bidder. "Eligible bidder" means a person who, prior to a bid opening, has filed with the Department a properly completed, sworn and currently valid employer report form, pursuant to the Department's regulations. The provisions of this Article relating to eligible bidders apply only to bids on contracts with the State and its departments, agencies, boards, and commissions, and the provisions do not apply to bids on contracts with units of local government or school districts.

(K) Citizenship Status. "Citizenship status" means the status of being:

(1) a born U.S. citizen;

(2) a naturalized U.S. citizen;

(3) a U.S. national; or

(4) a person born outside the United States and not a U.S. citizen who is not an unauthorized alien and who is protected from discrimination under the provisions of Section 1324b of Title 8 of the United States Code, as now or hereafter amended.

(Source: P.A. 97-877, eff. 8-2-12.)

Section 92. The Minimum Wage Law is amended by changing Section 3 as follows:

(820 ILCS 105/3) (from Ch. 48, par. 1003)

Sec. 3. As used in this Act:

(a) "Director" means the Director of the Department of Labor, and "Department" means the Department of Labor.

(b) "Wages" means compensation due to an employee by reason of his employment, including allowances determined by the Director in accordance with the provisions of this Act for gratuities and, when furnished by the employer, for meals and lodging actually used by the employee.

(c) "Employer" includes any individual, partnership, association, corporation, limited liability company, business trust, governmental or quasi-governmental body, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee, for which one or more persons are gainfully employed on some day within a calendar year. An employer is subject to this Act in a calendar year on and after the first day in such calendar year in which he employs one or more persons, and for the following calendar year.

(d) "Employee" includes any individual permitted to work by an employer in an occupation including one or more domestic workers, as defined in the Domestic Workers' Bill of Rights Act, but does not include any individual permitted to work:

(1) For an employer employing fewer than 4 employees exclusive of the employer's parent, spouse or child or other members of his immediate family.

(2) As an employee employed in agriculture or aquaculture (A) if such employee is employed by an employer who did not, during any calendar quarter during the preceding calendar year, use more than 500 man-days of agricultural or aquacultural labor, (B) if such employee is the parent, spouse or child, or other member of the employer's immediate family, (C) if such employee (i) is employed as a hand harvest laborer and is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) commutes daily from his permanent residence to the farm on which he is so employed, and (iii) has been employed in agriculture less than 13 weeks during the preceding calendar year, (D) if such employee (other than an employee described in clause (C) of this subparagraph): (i) is 16 years of age or under and is employed as a hand harvest laborer, is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) is employed on the same farm as his parent or person standing in the place of his parent, and (iii) is paid at the same piece rate as employees over 16 are paid on the same farm.

(3) (Blank) In domestic service in or about a private home.

(4) As an outside salesman.

(5) As a member of a religious corporation or organization.

(6) At an accredited Illinois college or university employed by the college or university at which he is a student who is covered under the provisions of the Fair Labor Standards Act of 1938, as heretofore or hereafter amended.

(7) For a motor carrier and with respect to whom the U.S. Secretary of Transportation has the power to establish qualifications and maximum hours of service under the provisions of Title 49 U.S.C. or the State of Illinois under Section 18b-105 (Title 92 of the Illinois Administrative Code, Part 395 - Hours of Service of Drivers) of the Illinois Vehicle Code.

The above exclusions from the term "employee" may be further defined by regulations of the Director.

(e) "Occupation" means an industry, trade, business or class of work in which employees are gainfully employed.

(f) "Gratuities" means voluntary monetary contributions to an employee from a guest, patron or customer in connection with services rendered.

(g) "Outside salesman" means an employee regularly engaged in making sales or obtaining orders or contracts for services where a major portion of such duties are performed away from his employer's place of business.

(h) "Day camp" means a seasonal recreation program in operation for no more than 16 weeks intermittently throughout the calendar year, accommodating for profit or under philanthropic or charitable auspices, 5 or more children under 18 years of age, not including overnight programs. The term "day camp" does not include a "day care agency", "child care facility" or "foster family home" as licensed by the Illinois Department of Children and Family Services.

(Source: P.A. 94-1025, eff. 7-14-06; 95-945, eff. 1-1-09.)

Section 93. The Wages of Women and Minors Act is amended by changing Section 1 as follows:

(820 ILCS 125/1) (from Ch. 48, par. 198.1)

Sec. 1. As used in this Act:

"Department" means the Department of Labor.

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

"Wage Board" means a board created as provided in this Act.

"Woman" means a female of 18 years or over.

"Minor" means a person under the age of 18 years.

"Occupation" means an industry, trade or business or branch thereof or class of work therein in which women or minors are gainfully employed, but does not include domestic service in the home of the employer or labor on a farm.

"An oppressive and unreasonable wage" means a wage which is both less than the fair and reasonable value of the services rendered and less than sufficient to meet the minimum cost of living necessary for health.

"A fair wage" means a wage fairly and reasonably commensurate with the value of the services or class of service rendered. In establishing a minimum fair wage for any service or class of service under this Act the Department and the wage board without being bound by any technical rules of evidence or procedure (1) may take into account all relevant circumstances affecting the value of the service or class of service rendered, and (2) may be guided by like considerations as would guide a court in a suit for the reasonable value of services rendered where services are rendered at the request of an employer without contract as to the amount of the wage to be paid, and (3) may consider the wages paid in the State for work of like or comparable character by employers who voluntarily maintain minimum fair wage standards.

"A directory order" means an order the nonobservance of which may be published as provided in Section 9 of this Act.

"A mandatory order" means an order the violation of which is subject to the penalties prescribed in paragraph 2 of Section 15 of this Act.

(Source: P.A. 91-357, eff. 7-29-99.)

Section 94. The One Day Rest In Seven Act is amended by changing Section 2 as follows:

(820 ILCS 140/2) (from Ch. 48, par. 8b)

Sec. 2. Hours and days of rest in every calendar week.

(a) Every employer shall allow every employee except those specified in this Section at least twenty-four consecutive hours of rest in every calendar week in addition to the regular period of rest allowed at the close of each working day. A person employed as a domestic worker, as defined in Section 10 of the Domestic Workers' Bill of Rights Act, shall be allowed at least 24 consecutive hours of rest in every calendar week. This subsection (a) does not prohibit a domestic worker from voluntarily agreeing to work on such day of rest required by this subsection (a); provided that the worker is compensated at the overtime rate for all hours worked on such day of rest. The day of rest authorized under this subsection (a) should, whenever possible, coincide with the traditional day reserved by the domestic worker for religious worship. The hours and days of rest allowed under this Act shall be in addition to any paid time off earned under Section 40 of the Domestic Workers' Bill of Rights Act.

(b) Subsection (a) This Section does not apply to the following:

(1) Part-time employees whose total work hours for one employer during a calendar week do not exceed 20; and

(2) Employees needed in case of breakdown of machinery or equipment or other emergency requiring the immediate services of experienced and competent labor to prevent injury to person, damage to property, or suspension of necessary operation; and

(3) Employees employed in agriculture or coal mining; and

(4) Employees engaged in the occupation of canning and processing perishable agricultural products, if such employees are employed by an employer in such occupation on a seasonal basis and for not more than 20 weeks during any calendar year or 12 month period; and

(5) Employees employed as watchmen or security guards; and

(6) Employees who are employed in a bonafide executive, administrative, or professional capacity or in the capacity of an outside salesman, as defined in Section 12 (a) (1) of the federal Fair Labor Standards Act, as amended, and those employed as supervisors as defined in Section 2 (11) of the National Labor Relations Act, as amended; and

(7) Employees who are employed as crew members of any uninspected towing vessel, as defined by Section 2101(40) of Title 46 of the United States Code, operating in any navigable waters in or along the boundaries of the State of Illinois.

(Source: P.A. 92-623, eff. 7-11-02.)

Section 97. Severability. If any provision of this Act or the application of such provision to any person or circumstance is preempted by or held to be in violation of Illinois or federal law or regulation, the remainder of the provisions of this Act and the application of those provisions to any person or circumstance shall not be affected.

Section 99. Effective date. This Act takes effect upon becoming law.".