SB3038ham001 98TH GENERAL ASSEMBLY

Rep. Ron Sandack

Filed: 5/20/2014

09800SB3038ham001 LRB098 16985 JLS 59791 a

AMENDMENT TO SENATE BILL 3038

AMENDMENT NO. ______. Amend Senate Bill 3038 by replacing everything after the enacting clause with the following:

"Section 5. The Victims' Economic Security and Safety Act is amended by changing Section 30 as follows:

(820 ILCS 180/30)

Sec. 30. Victims' employment sustainability; prohibited discriminatory acts.

(a) An employer shall not fail to hire, refuse to hire, discharge, constructively discharge, or harass any individual, otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, or retaliate against an individual in any form or manner, and a public agency shall not deny, reduce, or terminate the benefits of, otherwise sanction, or harass any individual, otherwise discriminate against any individual with respect to the amount, terms, or conditions of public assistance of the individual, or retaliate against an individual in any form or manner, because:

(1) the individual involved:

(A) is or is perceived to be a victim of domestic or sexual violence;

(B) attended, participated in, prepared for, or requested leave to attend, participate in, or prepare for a criminal or civil court proceeding relating to an incident of domestic or sexual violence of which the individual or a family or household member of the individual was a victim, or requested or took leave for any other reason provided under Section 20; or

(C) requested an adjustment to a job structure, workplace facility, or work requirement, including a transfer, reassignment, or modified schedule, leave, a changed telephone number or seating assignment, installation of a lock, or implementation of a safety procedure in response to actual or threatened domestic or sexual violence, regardless of whether the request was granted; or

(D) is an employee whose employer is subject to Section 21 of the Workplace Violence Prevention Act; or

(2) the workplace is disrupted or threatened by the action of a person whom the individual states has committed or threatened to commit domestic or sexual violence against the individual or the individual's family or household member.

(b) In this Section:

(1) "Discriminate", used with respect to the terms, conditions, or privileges of employment or with respect to the terms or conditions of public assistance, includes not making a reasonable accommodation to the known limitations resulting from circumstances relating to being a victim of domestic or sexual violence or a family or household member being a victim of domestic or sexual violence of an otherwise qualified individual:

(A) who is:

(i) an applicant or employee of the employer (including a public agency); or

(ii) an applicant for or recipient of public assistance from a public agency; and

(B) who is:

(i) a victim of domestic or sexual violence; or

(ii) with a family or household member who is a victim of domestic or sexual violence whose interests are not adverse to the individual in subparagraph (A) as it relates to the domestic or sexual violence;

unless the employer or public agency can demonstrate that the accommodation would impose an undue hardship on the operation of the employer or public agency.

A reasonable accommodation must be made in a timely fashion. Any exigent circumstances or danger facing the employee or his or her family or household member shall be considered in determining whether the accommodation is reasonable.

(2) "Qualified individual" means:

(A) in the case of an applicant or employee described in paragraph (1)(A)(i), an individual who, but for being a victim of domestic or sexual violence or with a family or household member who is a victim of domestic or sexual violence, can perform the essential functions of the employment position that such individual holds or desires; or

(B) in the case of an applicant or recipient described in paragraph (1)(A)(ii), an individual who, but for being a victim of domestic or sexual violence or with a family or household member who is a victim of domestic or sexual violence, can satisfy the essential requirements of the program providing the public assistance that the individual receives or desires.

(3) "Reasonable accommodation" may include an adjustment to a job structure, workplace facility, or work requirement, including a transfer, reassignment, or modified schedule, leave, a changed telephone number or seating assignment, installation of a lock, or implementation of a safety procedure, or assistance in documenting domestic or sexual violence that occurs at the workplace or in work-related settings, in response to actual or threatened domestic or sexual violence.

(4) Undue hardship.

(A) In general. "Undue hardship" means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).

(B) Factors to be considered. In determining whether a reasonable accommodation would impose an undue hardship on the operation of an employer or public agency, factors to be considered include:

(i) the nature and cost of the reasonable accommodation needed under this Section;

(ii) the overall financial resources of the facility involved in the provision of the reasonable accommodation, the number of persons employed at such facility, the effect on expenses and resources, or the impact otherwise of such accommodation on the operation of the facility;

(iii) the overall financial resources of the employer or public agency, the overall size of the business of an employer or public agency with respect to the number of employees of the employer or public agency, and the number, type, and location of the facilities of an employer or public agency; and

(iv) the type of operation of the employer or public agency, including the composition, structure, and functions of the workforce of the employer or public agency, the geographic separateness of the facility from the employer or public agency, and the administrative or fiscal relationship of the facility to the employer or public agency.

(c) An employer subject to Section 21 of the Workplace Violence Prevention Act shall not violate any provisions of the Workplace Violence Prevention Act.

(Source: P.A. 96-635, eff. 8-24-09.)

Section 10. The Workplace Violence Prevention Act is amended by changing Sections 10, 15, 20, 25, 30, and 35 and by adding Sections 21, 40, 45, 50, 55, 60, 65, 70, 75, 80, 85, 90, 95, 100, 105, 110, 115, 120, 125, and 130 as follows:

(820 ILCS 275/10)

Sec. 10. Definitions. As used in this Act:

"Credible threat of violence" means a statement or course of conduct that does not serve a legitimate purpose and that causes a reasonable person to fear for the person's safety at his or her workplace or for the safety of others at his or her workplace the person's immediate family.

"Employee" means:

(1) a person employed or permitted to work or perform a service for remuneration;

(2) a member of a board of directors of any organization;

(3) an elected or appointed public officer; and

(4) a volunteer, independent contractor, agency worker, or any other person who performs services for an employer at the employer's place of work.

"Employer" means an individual, partnership, association, limited liability company, corporation, business trust, the State, a governmental agency, or a political subdivision that has at least 15 5 employees during any work week.

"Petitioner" means any employer who commences a proceeding for a workplace protection restraining order.

"Respondent" means a person against whom a workplace protection restraining order proceeding has been commenced.

"Workplace" or "place of work" means any property that is owned or leased by the employer and at which the official business of the petitioner is conducted.

"Unlawful violence" means any act of violence, harassment, or stalking as defined by the Criminal Code of 2012 laws of this State.

(Source: P.A. 98-430, eff. 1-1-14.)

(820 ILCS 275/15)

Sec. 15. Employer's right to a workplace protection restraining order of protection. An employer may seek a workplace protection restraining an order of protection to prohibit further violence or threats of violence by the respondent a person if:

(1) an the employee has suffered unlawful violence and the respondent has made a credible threat of violence to be carried out at the employee's workplace; or a credible threat of violence from the person; and

(2) an employee believes that the respondent has made a credible threat of violence to be carried out at the employee's workplace; or

(3) an the unlawful act of violence has been carried out at the workplace employee's place of work or the respondent has made a credible threat of violence at the workplace credible threat of violence can reasonably be constructed to be carried out at the employee's place of work by the person.

(Source: P.A. 98-430, eff. 1-1-14.)

(820 ILCS 275/20)

Sec. 20. Affidavit Irreparable harm. An employer may obtain a workplace protection restraining order if the employer files an affidavit that shows by a preponderance of the evidence that:

(1) the conditions of Section 15 of this Act have been met;

(2) if the petitioner is seeking an emergency order, great or irreparable harm has been suffered, will be suffered, or is likely to be suffered by an employee at the workplace;

(3) if the employer is seeking a workplace protection restraining order involving an employee who is a victim of unlawful violence by a family or household member as defined by item (6) of Section 103 of the Illinois Domestic Violence Act of 1986, the conditions of Section 21 of this Act have been met. An employer may obtain an order of protection under the Illinois Domestic Violence Act of 1986 if the employer:

(1) files an affidavit that shows, to the satisfaction of the court, reasonable proof that an employee has suffered either unlawful violence or a credible threat of violence by the defendant; and

(2) demonstrates that great or irreparable harm has been suffered, will be suffered, or is likely to be suffered by the employee.

(Source: P.A. 98-430, eff. 1-1-14.)

(820 ILCS 275/21 new)

Sec. 21. Employee notification.

(a) In cases in which an employer is seeking a workplace protection restraining order involving an employee who is a victim of unlawful violence by a family or household member as defined by item (6) of Section 103 of the Illinois Domestic Violence Act of 1986 or is an employee who is a victim of unlawful violence as proscribed in Article 11 or Sections 12-7.3, 12-7.4, and 12-7.5 of the Criminal Code of 2012, the employer shall:

(1) prior to the filing of the petition, notify the employee in writing of the employer's intent to seek a workplace protection restraining order; and

(2) conduct a direct verbal consultation in conversation with the employee prior to seeking a workplace protection restraining order under this Act to determine whether any safety or well-being concerns exist in relation to the employer's pursuit of the order or whether seeking the order may interfere with the employee's own legal actions.

If, after direct verbal consultation in conversation with the employee, the employee does not give the employer full and voluntary consent to seek a workplace protection restraining order, the employer shall not file for that order until a 4-day waiting period has elapsed following the date of the direct consultation. The 4-day waiting period does not apply if there is an immediate threat of imminent physical harm to the work site and the petitioner is seeking an emergency order.

(b) Employers subject to the Victims' Economic Security and Safety Act shall additionally include in the written notice to the employee in subsection (a) the following: "As your employer, we are subject to the Victims' Economic Security and Safety Act, which includes provisions for leave, accommodations, and prohibitions against discrimination, and we are notifying you of your rights under this Act. A summary of your rights under the Victims' Economic Security and Safety Act is provided on the workplace poster we are required under law to post in your workplace."

(820 ILCS 275/25)

Sec. 25. Remedies. Employer remedies under this Act are limited to a workplace protection restraining an order of protection. Nothing in this Act, however, waives, reduces, or diminishes any other civil or criminal remedy available to an employer under any other mechanism. A workplace protection restraining order issued by the court may:

(1) Prohibit the respondent's unlawful violence in the workplace, including ordering the respondent to stay away from the workplace. When the respondent is employed at the workplace location, the court, when issuing a workplace protection restraining order, shall consider the severity of the act and any continuing physical danger or emotional distress to any employee in the workplace.

(2) Upon notice to the respondent, order the respondent to pay the petitioner for property losses suffered as a direct result of the actions of the respondent. Such losses include, but are not limited to, repair or replacement of property damaged or taken, reasonable attorney's fees, and court costs to recover the property losses.

The remedies provided in this Section are in addition to other civil or criminal remedies available to the employer.

(Source: P.A. 98-430, eff. 1-1-14.)

(820 ILCS 275/30)

Sec. 30. Action for workplace protection restraining order Jurisdiction; venue; procedure; enforcement.

(a) An action for a workplace protection restraining order may be commenced independently by filing a petition for a workplace protection restraining order in any civil court, unless specific courts are designated by local rule or order.

(b) The clerk of the circuit court shall charge fees in accordance with the Clerks of Courts Act.

(c) Notwithstanding the requirements of Section 20 of this Act, if the specific address or geographic location of the workplace is not currently known to the respondent due to the efforts by the employer or the employee to minimize the threat of unlawful violence to the employee, and the petition provides that disclosure of the employee's current workplace would risk violence, the workplace address may be omitted from all documents filed with the court. If the petitioner does not disclose the workplace address, the petitioner shall designate an alternative address at which the respondent may serve notice of any motions.

(d) Any proceeding to obtain, modify, reopen, or appeal a workplace protection restraining order shall be governed by the rules of civil procedure of this State. The standard of proof in such a proceeding is proof by a preponderance of the evidence. The Code of Civil Procedure and Supreme Court and local rules applicable to civil proceedings apply.

(e) There is no right to trial by jury in any proceeding to obtain, modify, vacate, or extend any workplace protection restraining order under this Act. Issues of jurisdiction, venue, procedure, and enforcement shall be governed by the Illinois Domestic Violence Act of 1986.

(Source: P.A. 98-430, eff. 1-1-14.)

(820 ILCS 275/35)

Sec. 35. Subject matter jurisdiction Law enforcement responsibilities. Each of the circuit courts of this State has the power to issue workplace protection restraining orders. Law enforcement personnel shall have the same responsibilities under this Act as are provided in Article 3 of the Illinois Domestic Violence Act of 1986.

(Source: P.A. 98-430, eff. 1-1-14.)

(820 ILCS 275/40 new)

Sec. 40. Jurisdiction over persons. The courts of this State have jurisdiction to bind: (1) State residents; and (2) non-residents having minimum contacts with this State to the extent permitted by Section 2-209 of the Code of Civil Procedure.

(820 ILCS 275/45 new)

Sec. 45. Venue. A petition for a workplace protection restraining order may be filed in any county where: (i) the petitioner resides; (ii) the respondent resides; or (iii) the alleged violence occurred.

(820 ILCS 275/50 new)

Sec. 50. Process.

(a) Any action for a workplace protection restraining order requires that a separate summons be issued and served. The summons shall require the respondent to answer and appear within 7 days. Attachments to the summons or notice shall include the petition for a workplace protection restraining order, supporting affidavits, if any, and any emergency workplace protection restraining order that has been issued.

(b) The summons shall be served by the sheriff or other law enforcement officer at the earliest time possible and shall take precedence over other summonses except those of a similar emergency nature. A special process server may be appointed at any time, and the appointment of a special process server shall not affect the responsibilities and authority of the sheriff or other official process servers.

(c) Service of summons on a member of the respondent's household or by publication is adequate if: (1) the petitioner has made all reasonable efforts to accomplish actual service of process personally upon the respondent, but the respondent cannot be found to effect the service; and (2) the petitioner files an affidavit or presents sworn testimony describing those efforts.

(d) A plenary workplace protection restraining order may be entered by default for the remedy sought in the petition if the respondent has been served in accordance with subsection (a) of this Section or given notice and if the respondent then fails to appear as directed or fails to appear on any subsequent appearance or hearing date agreed to by the parties or set by the court.

(e) An employee who has been a victim of domestic violence by the respondent is not required to and the court may not order the employee to testify, participate in, or appear in this process for any purpose.

(820 ILCS 275/55 new)

Sec. 55. Hearing notice. Except as otherwise provided by law or court rule, notice of hearings on petitions or motions shall be served upon the respondent in accordance with Supreme Court Rules 11 and 12.

(820 ILCS 275/60 new)

Sec. 60. Hearings. The court shall treat a petition for a workplace protection restraining order as an expedited proceeding and may not transfer or otherwise decline to decide all or part of the petition. Nothing in this Section prevents the court from reserving issues if jurisdiction or notice requirements are not met.

(820 ILCS 275/65 new)

Sec. 65. Continuances.

(a) A petition for an emergency workplace protection restraining order shall be granted or denied in accordance with the standards of Section 70 of this Act, regardless of the respondent's appearance or presence in court.

(b) Any action for a workplace protection restraining order is an expedited proceeding. Continuances shall be granted only for good cause shown and kept to a minimum reasonable duration, taking into account the reason for the continuance.

(820 ILCS 275/70 new)

Sec. 70. Emergency order.

(a) The court shall issue an emergency workplace protection restraining order if the petitioner establishes that:

(1) the court has jurisdiction under Section 40 of this Act;

(2) the requirements of Sections 15 and 21 of this Act are satisfied; and

(3) there is good cause to grant the remedy, regardless of prior service of notice upon the respondent, because the harm which that remedy is intended to prevent would be likely to occur if the respondent were given prior notice or greater notice than was actually given of the petitioner's efforts to obtain judicial relief.

An emergency workplace protection restraining order shall be issued by the court if it appears from the contents of the petition and the examination of the petitioner that the averments are sufficient to indicate irreparable harm under Section 20 of this Act by the respondent and to support the granting of relief through the issuance of the emergency workplace protection restraining order.

(b) If the respondent appears in court for the hearing for an emergency order, he or she may elect to file a general appearance and testify. Any resulting order may be an emergency order, governed by this Section. Notwithstanding the requirements of this Section, if all requirements of Section 75 of this Act have been met, the court may issue a plenary order.

(c) If the court is unavailable at the close of business, the petitioner may file a petition for a 21-day emergency order before any available judge who may grant relief under this Act. If the judge finds that there is an immediate and present danger of irreparable harm and that the petitioner has satisfied the prerequisites set forth in subsection (a) of this Section, that judge may issue an emergency workplace protection restraining order.

(d) The chief judge of the circuit court may designate for each county in the circuit at least one judge to be reasonably available to issue orally, by telephone, by facsimile, by electronic means that comply with procedures established by the court, or otherwise, an emergency workplace protection restraining order at all times, whether or not the court is in session.

(e) Any order issued under this Section and any documentation in support of the order shall be certified on the next court day to the appropriate court. The clerk of the court shall immediately assign a case number, file the petition, order, and other documents with the court, and enter the order of record and file it with the sheriff for service in accordance with Section 85 of this Act. Filing the petition shall commence proceedings for further relief under Section 30 of this Act. Failure to comply with the requirements of this subsection (e) does not affect the validity of the order.

(820 ILCS 275/75 new)

Sec. 75. Plenary order. The court shall issue a plenary workplace protection restraining order if the petitioner has served notice of the hearing for that order on the respondent in accordance with Section 55 of this Section and establishes that:

(1) the court has jurisdiction under Section 40 of this Act;

(2) the requirements of Sections 15 and 21 of this Act are satisfied;

(3) a general appearance was made or filed by or for the respondent or process was served on the respondent in the manner required by Section 50 of this Act; and

(4) the respondent has answered or is in default.

(820 ILCS 275/80 new)

Sec. 80. Employee testimony. In a plenary workplace protection restraining order hearing, if the court finds that testimony in the courtroom voluntarily offered by the employee who has suffered the violence may result in serious emotional distress to the employee who has suffered the violence, the court may order that the examination of the employee be conducted in chambers. Counsel shall be present at the examination unless otherwise agreed upon by the parties. The court shall cause a court reporter to be present who shall make a complete record of the examination instantaneously to be part of the record in the case.

(820 ILCS 275/85 new)

Sec. 85. Duration and extension of orders.

(a) Unless reopened or extended or voided by entry of an order of greater duration, an emergency order is effective for not less than 14 nor more than 21 days.

(b) A plenary workplace protection restraining order is effective for a fixed period of time not to exceed one year.

(820 ILCS 275/90 new)

Sec. 90. Contents of orders.

(a) A workplace protection restraining order shall describe each remedy granted by the court, in reasonable detail and not by reference to any other document, so that the respondent may clearly understand what he or she must do or refrain from doing.

(b) A workplace protection restraining order shall include the following:

(1) the name of the petitioner;

(2) the date and time the workplace protection restraining order was issued, whether it is an emergency or plenary order, and the duration of the order;

(3) the date, time, and place for any scheduled hearing for extension of the workplace protection restraining order or for another order of greater duration or scope;

(4) for each remedy in an emergency workplace protection restraining order, the reason for entering that remedy without prior notice to the respondent or greater notice than was actually given; and

(5) for emergency workplace protection restraining orders, that the respondent may petition the court, in accordance with Section 100, to reopen the order if he or she did not receive actual prior notice of the hearing as required under Section 55 of this Act and if the respondent alleges that he or she had a meritorious defense to the order or that the order or its remedy is not authorized by this Act.

(820 ILCS 275/95 new)

Sec. 95. Notice of orders.

(a) Upon issuance of a workplace protection restraining order, the clerk shall immediately, or on the next court day if an emergency order is issued in accordance with subsection (c) of Section 70 of this Act:

(1) enter the order on the record and file it in accordance with the circuit court procedures; and

(2) provide a file stamped copy of the order to the respondent, if present, and to the petitioner.

(820 ILCS 275/100 new)

Sec. 100. Modification.

(a) Except as otherwise provided in this Section, upon motion of the petitioner, the court may modify an emergency or plenary workplace protection restraining order by altering the remedy, subject to Section 25 of this Act.

(b) After 30 days following the entry of a plenary workplace protection restraining order, a court may modify the order only if a change in the applicable law or facts since the plenary order was entered warrants a modification of its terms.

(c) Upon 2 days' notice to the petitioner, or shorter notice as the court may prescribe, a respondent subject to an emergency workplace protection restraining order issued under this Act may appear and petition the court to rehear the original or amended petition. A petition to rehear shall be verified and shall allege that:

(1) the respondent did not receive prior notice of the initial hearing in which the emergency workplace protection restraining order was entered under Sections 55 and 70 of this Act; and

(2) the respondent had a meritorious defense to the order or any of its remedies or the order or any of its remedies was not authorized by this Act.

(820 ILCS 275/105 new)

Sec. 105. Enforcement. The court may enforce workplace protection restraining orders through civil contempt proceedings.

(820 ILCS 275/110 new)

Sec. 110. Employment discrimination. An employer seeking or obtaining a workplace protection restraining order shall comply with any federal or State law to which it is subject, including any provision under the Victims' Economic Security and Safety Act and the Illinois Human Rights Act, regarding employee protections and the rights of the employee who has suffered the violence.

(820 ILCS 275/115 new)

Sec. 115. Effect on other laws and employment benefits.

(a) Nothing in this Act shall be construed to supersede any provision of any federal, State, or local law, collective bargaining agreement, or employment benefits program or plan that provides employment protections for employees, including any provision under the Victims' Economic Security and Safety Act and the Illinois Human Rights Act.

(b) Any other claims under the Victims' Economic Security and Safety Act against the employer may be heard as part of a civil action under this Act.

(820 ILCS 275/120 new)

Sec. 120. Exemptions.

(a) The court may not enter a workplace protection restraining order that enjoins the following activities:

(1) lawful monitoring of compliance with public or worker safety laws, wage and hour requirements, or other statutory workplace requirements;

(2) lawful picketing, patrolling, using a banner, or other lawful protesting at the workplace which arises out of a bona fide labor dispute; and

(3) engaging in concerted and protected activities as defined in applicable labor law.

(b) As used in this Section, "bona fide labor dispute" means any activity recognized as a labor dispute by the National Labor Relations Act, the Illinois Public Labor Relations Act, or the Illinois Educational Labor Relations Act, and includes a controversy concerning: wages, salaries, hours, working conditions, or benefits, including health and welfare, sick leave, insurance, and pension or retirement provisions; the terms to be included in collective bargaining agreements; and the making, maintaining, administering, and filing of protests or grievances under a collective bargaining agreement.

(820 ILCS 275/125 new)

Sec. 125. Confidentiality and privacy. The employer shall keep all information relating to a workplace protection restraining order in the strictest confidence, limiting information only to those employees who have a current demonstrable interest related to the safety of the employee who has suffered the violence.

(820 ILCS 275/130 new)

Sec. 130. Exemption.

(a) This Act does not apply to any individual or organization that is lawfully (i) monitoring for compliance with public or worker safety laws, wage and hour requirements, or other statutory requirements or (ii) picketing, patrolling, using a banner, or otherwise protesting at the workplace in relation to a bona fide labor dispute including any controversy concerning wages, salaries, hours, working conditions or benefits, including health and welfare, sick leave, insurance, and pension or retirement provisions, the making or maintaining of collective bargaining agreements, and the terms to be included in those agreements.

(b) This Act does not apply to any lawful exercise of the right of free speech or assembly.

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