Illinois General Assembly - Full Text of SB0073
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Full Text of SB0073  93rd General Assembly

SB0073sam003 93rd General Assembly


                                     LRB093 10959 MKM 12456 a

 1                     AMENDMENT TO SENATE BILL 73

 2        AMENDMENT NO.     .  Amend Senate Bill 73, AS AMENDED, by
 3    replacing everything  after  the  enacting  clause  with  the
 4    following:

 5        "Section  1.  Short  title.  This Act may be cited as the
 6    Public Service Accountability Act.

 7        Section 5. Legislative  intent.   The  legislature  finds
 8    that  using  private  contractors  to provide public services
 9    formerly provided by public employees does not always promote
10    the public interest. To ensure that citizens  of  this  State
11    receive  high quality public services at a low cost, with due
12    regard  for  the  taxpayers  of  this  State,   the   service
13    recipients,  and the needs of public and private workers, the
14    legislature finds  it  necessary  to  regulate  privatization
15    contracts  and to protect those workers who report conditions
16    and practices that impact on the efficiency  and  quality  of
17    public   services   provided   by  private  contractors.  The
18    legislature further finds it necessary to ensure that  access
19    to   public   information   guaranteed   by  the  Freedom  of
20    Information Act is not in any way hindered by the  fact  that
21    public services are provided by private contractors.
                            -2-      LRB093 10959 MKM 12456 a
 1        Section 10.  Definitions.  For purposes of this Act:
 2        "State  agency"  or  "agency"  means  executive  offices,
 3    departments,    divisions,   bureaus,   authorities,   bodies
 4    corporate and public of the State,  boards,  commissions,  or
 5    other  offices  or  officers in the executive branch of State
 6    government.
 7        "Employee  of  a  private  contractor"  means  a   worker
 8    directly employed by a private contractor or subcontractor or
 9    an  independent contractor that provides supplies or services
10    to a private contractor.  This term includes former employees
11    of  a  private  contractor  or   subcontractor   and   former
12    independent contractors.
13        "Discrimination   or   retaliation"   means   a   threat,
14    intimidation,  or  any adverse change in an employee's wages,
15    benefits, or terms or conditions of employment as a result of
16    the employee reporting a violation of this Act. In  the  case
17    of a person who is not an employee of the private contractor,
18    this  term  includes  any  adverse  action  taken against the
19    person or the person's employer as a result  of  reporting  a
20    violation  of  this  Act,  including  the  cancellation of or
21    refusal to renew a contract with the person or  the  person's
22    employer.
23        "Services"  means,  with respect to a private contractor,
24    all aspects of  the  provision  of  services  provided  by  a
25    private  contractor  pursuant to a privatization contract, or
26    any  services  provided  by  a  subcontractor  of  a  private
27    contractor.
28        "Person" means an individual,  corporation,  partnership,
29    firm, organization or association acting individually or as a
30    group,  institution,  federal,  State,  or local governmental
31    entity, or any other public or private entity.
32        "Privatization   contract"   means   an   agreement    or
33    combination    or   series   of   agreements   by   which   a
34    non-governmental person or entity agrees with a State  agency
                            -3-      LRB093 10959 MKM 12456 a
 1    to  provide  services  valued  at  $100,000  or more that are
 2    substantially similar to and in lieu of  services  that  have
 3    been  provided  or that could have been provided, in whole or
 4    in part, by regular employees of an agency and that result in
 5    the reduction in force of at least one permanent,  classified
 6    employee. This Act shall not apply to contracts if any of the
 7    following apply:
 8             (1)    The  services  are  not  available within the
 9        agency or are of such a highly specialized  or  technical
10        nature that the necessary knowledge, skills, or expertise
11        is not available within the agency;
12             (2)    The services are incidental to a contract for
13        the purchase or lease of real or personal property;
14             (3)    There  is  a   demonstrated   need   for   an
15        independent audit, review, or investigation;
16             (4)    The  State  is not able to provide equipment,
17        materials,  facilities,  or  support  services   in   the
18        location where the services are to be performed;
19             (5)   The contract is for professional services that
20        are    typically    rendered   on   a   case-by-case   or
21        project-by-project basis,  such  as  legal,  professional
22        engineering,  structural  engineering, land surveying, or
23        architectural services, and the services are: (i) limited
24        to the duration of the project, normally not to exceed  2
25        years,  or (ii) are provided on an intermittent basis for
26        the duration of the contract.
27             (6)   The need for services is urgent, temporary, or
28        occasional, such that the  time  necessary  to  hire  and
29        train  employees would render obtaining the services from
30        State  employees  imprudent.  The  contract  for  urgent,
31        temporary, or occasional services shall be limited to  90
32        days'  duration, with any extension subject to review and
33        approval;
34             (7)   Efforts to recruit State employees to  perform
                            -4-      LRB093 10959 MKM 12456 a
 1        work  authorized  by law have failed because no applicant
 2        meeting the minimum qualifications has  applied  for  the
 3        job;
 4             (8)    The  contract  is  for  services  of  private
 5        counsel;
 6             (9)    The  contract  is  for  services for training
 7        courses  that  can  not  be  provided  by  current  State
 8        employees;
 9             (10)   There is a conflict of interest; or
10             (11)   The agreement was entered into prior  to  the
11        effective  date  of  this  Act,  including  any agreement
12        resulting  from  a  rebidding  or  previously  privatized
13        service  or  an  agreement  renewing   or   extending   a
14        privatization contract.
15        "Private  contractor" means any entity that enters into a
16    privatization contract  as  that  term  is  defined  in  this
17    Section.
18        "Public   employee"   means  an  employee  of  any  State
19    department or agency.
20        "Public record" means a public record as defined  in  the
21    Freedom  of  Information  Act, and also includes any document
22    relating to the privatization contract or  performance  under
23    the  privatization  contract, prepared, received, or retained
24    by a contractor or subcontractor  whether  that  document  be
25    handwritten,   typed,  tape-recorded,  printed,  photocopied,
26    photographed, or recorded by any other method  but  excluding
27    those  documents that would be considered as exemptions under
28    the Freedom of Information Act which include  trade  secrets,
29    bid proposals, formulae, and designs.
30        "Subcontractor"   means  a  subcontractor  of  a  private
31    contractor for work under  a  privatization  contract  or  an
32    amendment to a privatization contract.

33        Section 15.  Privatization contracts; requirements.
                            -5-      LRB093 10959 MKM 12456 a
 1        (a)  No   State   agency  shall  make  any  privatization
 2    contract and no privatization contract shall be valid  unless
 3    the   State   agency  and  the  contractor  comply  with  the
 4    requirements of this Act, including listing  those  specified
 5    provisions  in the privatization contract as required by this
 6    Act.
 7        (b)  The State agency shall prepare  a  specific  written
 8    statement   of   the   services  to  be  provided  under  the
 9    privatization contract, including the specific  quantity  and
10    standard of quality of the subject services. The agency shall
11    solicit   competitive   sealed  bids  for  the  privatization
12    contract based upon this statement. This statement shall be a
13    public record, shall be filed in the  agency,  and  shall  be
14    published  in  the  State register not later than 30 business
15    days prior to the date  on  which  bids  are  due.   The  day
16    designated  by  the  agency  for  accepting these sealed bids
17    shall be the same for all parties.
18        (c) Every bid shall detail:
19             (1) The length of continuous employment  of  current
20        employees  with  the  contractor  by  job classification,
21        without identifying employee names, for each  similar  or
22        comparable  position  in  which  a bidder will employ any
23        person pursuant to the  privatization  contract  and  for
24        which  the duties are substantially similar to the duties
25        performed by a regular agency employee or  employees.  In
26        addition, the contractor may submit information detailing
27        the  relevant  prior  experience of employees within each
28        job classification. If the positions  identified  by  the
29        bidder shall be newly created, the bid shall identify the
30        minimum  requirements for prospective applicants for each
31        of these position;
32             (2) The annual rate of current staff turnover;
33             (3) The number of hours of training planned for each
34        employee in subject matters directly related to providing
                            -6-      LRB093 10959 MKM 12456 a
 1        services to State residents and clients;
 2             (4) any legal complaints issued  by  an  enforcement
 3        agency  of  this  state  or  any  other State for alleged
 4        violations of applicable federal, state, or local  rules,
 5        regulations,  or  laws, including laws governing employee
 6        safety and health, labor relations, and other  employment
 7        requirements,  and  any  citations,  court  findings,  or
 8        administrative findings for violations of federal, state,
 9        or  local  rules,  regulations,  or laws. The information
10        must include: (i) the date; (ii) the enforcement  agency;
11        (iii) the rule, law, or regulation involved; and (iv) any
12        additional information the contractor may wish to submit;
13             (5)   any   collective   bargaining   agreements  or
14        personnel policies covering the  employees  that  provide
15        services to the State; and
16             (6)  political  contributions  made by the bidder or
17        any employee in a management position  with  the  bidding
18        company  to any elected officer of the State or member of
19        the State legislature during the 4 years prior to the due
20        date of the bid.
21        (d)  For each position in which a contractor will  employ
22    a  person pursuant to the privatization contract, the minimum
23    compensation to be paid for the position shall be:
24             (1)  the greater of the wage rate paid at  step  one
25        of  the  grade  or  classification  under which an agency
26        employee whose duties  are  most  similar  is  paid  plus
27        provision  of  comparable  health  insurance  and pension
28        contributions equivalent  to  the  benefit  paid  by  the
29        agency  for  those  employees  or  the  cash value of the
30        benefit; or
31             (2)  the  private  sector  compensation   rate,   or
32        prevailing  rate, including the value of health and other
33        benefits,  for  that  position  as  determined   by   the
34        Department of Labor.
                            -7-      LRB093 10959 MKM 12456 a
 1        (e)  The  term  of  any  privatization contract shall not
 2    exceed 2 years.
 3        (f)  No amendment to a privatization  contract  shall  be
 4    valid  if it has the purpose or effect of avoiding any of the
 5    requirements of this Act.
 6        (g)  Every   privatization   contract    shall    contain
 7    provisions   requiring  the  contractor  to  offer  available
 8    employee positions pursuant  to  the  contract  to  qualified
 9    regular  employees  of  the  agency whose State employment is
10    terminated  because  of  the  privatization  contract.  Every
11    contract  shall  also  contain   provisions   requiring   the
12    contractor  to  comply with a policy of nondiscrimination and
13    equal employment opportunity for  all  persons  and  to  take
14    affirmative  steps  to  provide  equal  opportunity  for  all
15    persons.
16        (h)  Every    privatization    contract   shall   contain
17    provisions regarding the process for determining  whether  or
18    not  to  disclose a particular record or type of record.  The
19    privatization contract shall specify who is  responsible  for
20    determining  whether  or not disclosure is required and shall
21    outline the liability of the  parties  to  the  contract  for
22    failure  to  disclose  as  required  by either the Freedom of
23    Information Act or this Act.

24        Section 20. Review of contract costs.
25        (a)  Any State agency considering whether to enter into a
26    privatization contract shall prepare a comprehensive  written
27    estimate  of the costs of regular agency employees' providing
28    the subject services in the most cost-efficient  manner.  The
29    estimate  shall  include  all  direct  and  indirect costs of
30    regular  agency  employees  providing  the  subject  services
31    including, but not limited to, pension, insurance, and  other
32    employee benefit costs. Upon completion of the cost estimate,
33    the  State  agency  shall  notify  any  employee organization
                            -8-      LRB093 10959 MKM 12456 a
 1    representing agency employees who may be affected and provide
 2    a  copy  of  the  written  estimate   and   notification   of
 3    consideration to enter into a privatization contract. For the
 4    purposes  of  this  estimate,  any  employee organization may
 5    propose amendments  to  any  relevant  collective  bargaining
 6    agreement  to  which  it is a party. An employee organization
 7    must submit amendments for consideration  within  35  working
 8    days  prior to the final day for the agency to receive sealed
 9    bids. This estimate shall remain confidential until after the
10    final day for the agency  to  receive  sealed  bids  for  the
11    privatization  contract  at  which  time  the  estimate shall
12    become a public record, shall be filed with the  agency,  and
13    shall be published in the State register.
14        (b)  Any  State  agency  required  to  complete a written
15    estimate of costs evaluation as detailed in subsection (a) of
16    this Section shall also prepare a community impact evaluation
17    that shall be submitted to  the  General  Assembly  when  the
18    issuance  of  a  privatization  contract  would result in the
19    closure of a State facility or the layoff of the lesser of 50
20    employees or 50% of the staff of a State facility or  agency.
21    A  community impact evaluation shall also be submitted to the
22    General  Assembly  when  a  private  entity  that   holds   a
23    privatization  contract  with  a State agency seeks to layoff
24    the lesser of 50 employees or 50%  of  the  staff  performing
25    work  pursuant  to  the  privatization  contract.  Any time a
26    community impact evaluation is required pursuant to this Act,
27    a report shall be presented to the General Assembly no  later
28    than   3   months   prior   to  the  planned  issuance  of  a
29    privatization contract or the implementation  of  a  facility
30    closure  or  the  layoff  of  employees. The community impact
31    evaluation shall be in the form of a report  to  the  General
32    Assembly  and  shall  include,  but  not  be  limited to, the
33    following:
34             (1)  State revenues expected to be saved as a result
                            -9-      LRB093 10959 MKM 12456 a
 1        of the proposed layoff or facility or agency closing;
 2             (2)  the rationale for the  layoff  or  facility  or
 3        agency closing;
 4             (3)  the  function and duties of the State employees
 5        that will be laid-off;
 6             (4)  whether the function and duties  of  the  State
 7        employees  to  be  laid-off  will be performed by another
 8        section of State government, and if so, which section;
 9             (5)  the economic impact on the community where  the
10        proposed  layoff  or  closure  of a facility or agency is
11        located;
12             (6)  the analyses of current and projected  economic
13        and  labor  conditions of the communities affected by the
14        proposed layoff or facility or agency closure;
15             (7)  any other data that pertains  to  the  economic
16        and  labor impacts on Illinois communities as a result of
17        the proposed layoff or facility or agency closing; and
18             (8)  any other data that the  General  Assembly  may
19        request  concerning  the  proposed  layoff or facility or
20        agency closing.
21        (c)  After soliciting  and  receiving  bids,  the  agency
22    shall  publicly  designate the bidder to which it proposes to
23    award the privatization contract. In selecting a  contractor,
24    the  agency  shall consider the contractors' past performance
25    and its record in this State or any other state of compliance
26    with  federal,  state,  and   local   laws,   including   the
27    disclosures  and  certification requirements required by this
28    Act. A  bidder  who  does  not  satisfy  the  disclosure  and
29    certification  requirements  of  this  Section  shall  not be
30    awarded a privatization contract under this Act.
31        (d)  The agency shall  prepare  a  comprehensive  written
32    analysis  of the contract cost based upon the designated bid,
33    specifically including the costs of transition from public to
34    private operation, of additional unemployment and  retirement
                            -10-     LRB093 10959 MKM 12456 a
 1    benefits,   if   any,   and   of   monitoring  and  otherwise
 2    administering contract performance. If the designated  bidder
 3    proposes  to  perform  any or all of the contract outside the
 4    boundaries of the State, the contract cost shall be increased
 5    by the amount of income tax revenue, if  any,  that  will  be
 6    lost  to the State by the corresponding elimination of agency
 7    employees, as determined by the Department of Revenue to  the
 8    extent that it is able to do so.
 9        (e)  The  head  of  the  agency  shall certify in writing
10    that:
11                  (1) he or she has complied with all  provisions
12             of this Section and of all other applicable laws;
13                  (2)  the quality of the services to be provided
14             by the designated bidder is likely  to  satisfy  the
15             quality   requirements  of  the  statement  prepared
16             pursuant to this Act, and to  equal  or  exceed  the
17             quality  of  services  that  could  be  provided  by
18             regular agency employees;
19                  (3) the contract cost will be at least 10% less
20             than  the  estimated  cost,  taking into account all
21             comparable types of costs  and  all  the  additional
22             costs of the contract as specified in this Act; and
23                  (4)  the  proposed privatization contract is in
24             the public interest and meets the applicable quality
25             and fiscal standards set forth in this Act.
26        Any privatization contract entered into by a State agency
27    and the agency  certification  described  above  shall  be  a
28    public  record  and  subject  to  disclosure  pursuant to the
29    Freedom of Information Act.

30        Section 25.  Monitoring and enforcement of  privatization
31    contracts.
32        (a)  No  contractor  shall  award  a subcontract for work
33    under a contract or an amendment to a  contract  without  the
                            -11-     LRB093 10959 MKM 12456 a
 1    approval  of  the  selection  of  the  subcontractor  and the
 2    provisions of the subcontract by agency head or  his  or  her
 3    designee.
 4        (b)  Each  contractor  shall  file  a  copy  of  executed
 5    subcontract  or amendment to the subcontract with the agency.
 6    The agency shall maintain the subcontract or amendment  as  a
 7    public record.
 8        (c)  Any   private  contractor  awarded  a  privatization
 9    contract, and  any  subcontractor  to  a  private  contractor
10    subject  to these provisions, shall file with the agency head
11    copies of financial audits of the private contractor prepared
12    by independent, certified public auditors at  least  annually
13    during the course of the contract term.
14        (d)  All privatization contracts shall include a contract
15    provision  specifying  that  in order to determine compliance
16    with these principles, as well as the contract,  the  private
17    contractor  shall  be  required  to  provide the State or its
18    agents  reasonable  access  through  representatives  of  the
19    private contractor to facilities, records, and employees that
20    are used  in  conjunction  with  the  provision  of  contract
21    services,  except  where prohibited by federal or State laws,
22    regulations, or rules.
23        (e)  The private contractor shall submit  a  report,  not
24    less  than  annually  during  the  term  of the privatization
25    contract, detailing the extent to which  the  contractor  has
26    achieved the specific quantity and standard of quality of the
27    subject   services   as  specified  by  the  agency  and  its
28    compliance with all federal, State, and local laws  including
29    any    complaints,   citations,   or   findings   issued   by
30    administrative agencies or courts.
31        (f)  The State agency may seek contractual  remedies  for
32    any  violation of a privatization contract. In addition, if a
33    contractor  fails  to  comply  with   the   wage   standards,
34    employment  provisions  or  union provisions in this Act, any
                            -12-     LRB093 10959 MKM 12456 a
 1    person or entity aggrieved by the violation may bring a claim
 2    for equitable and other  relief  including  backpay.  In  any
 3    lawsuit  brought  for  reasons  listed in this subsection, an
 4    aggrieved person or entity shall be  entitled  to  costs  and
 5    attorney fees.

 6        Section 30.  Compliance; privacy actions.
 7        (a)  Public  records  that  a  contractor, subcontractor,
 8    employee, or agent possesses, modifies, or  creates  pursuant
 9    to  a  privatization  contract shall at all times and for all
10    purposes remain the property of  the  State.   A  contractor,
11    subcontractor,   employee,   or  agent  of  a  contractor  or
12    subcontractor shall have no ownership rights or  interest  in
13    any   public  records  that  the  contractor,  subcontractor,
14    employee, or agent possesses, modifies, or  creates  pursuant
15    to  a  contract,  subcontract,  or amendment to a contract or
16    subcontract and shall not impair the integrity of any  public
17    record that the contractor, subcontractor, employee, or agent
18    possesses or creates.
19        (b)  Any  public record that a State agency provides to a
20    contractor  or  subcontractor  or  that   a   contractor   or
21    subcontractor creates shall be and remain a public record for
22    the  purposes  of  the  Freedom  of  Information  Act and the
23    enforcement provisions of that law shall apply to any failure
24    to disclose records under this Section.
25        (c)  A private contractor who fails to disclose a  record
26    that  the  privatization contract requires to be disclosed or
27    that the State agency directs to be disclosed shall be liable
28    to the State agency  for  any  fines  or  penalties  assessed
29    against  the  agency  for  the  violation  of  the Freedom of
30    Information Act concerning that record.
31        (d) No contractor or subcontractor or employee  or  agent
32    of a contractor or subcontractor shall disclose to the public
33    any  public  records  that it possesses, modifies, or creates
                            -13-     LRB093 10959 MKM 12456 a
 1    pursuant to  a  contract,  subcontract,  or  amendment  to  a
 2    contract and that the State agency:
 3             (1)  is prohibited from disclosing pursuant to State
 4        or federal law in all cases;
 5             (2) may disclose pursuant to State  or  federal  law
 6        only  to certain entities or individuals or under certain
 7        conditions; or
 8             (3) may withhold from disclosure pursuant  to  State
 9        or  federal law. No provision of this subsection shall be
10        construed to  prohibit  any  contractor  from  disclosing
11        public  records to any of its subcontractors to carry out
12        the purposes of its subcontract.
13        (e) No contractor, subcontractor, employee, or agent of a
14    contractor or subcontractor shall sell, market, or  otherwise
15    profit  from the disclosure or use of any public records that
16    are in its possession pursuant to a contract, subcontract, or
17    amendment to a contract or subcontract, except as  authorized
18    in the contract, subcontract, or amendment.
19        (f) Any contractor or subcontractor, or employee or agent
20    of   a  contractor  or  subcontractor,  that  learns  of  any
21    violation of the provisions of this Act shall, no later  than
22    7  calendar  days after learning of the violation, notify the
23    agency head and the Attorney General of the violation.
24        (g)  In addition  to  any  remedies  provided  under  the
25    Freedom  of  Information  Act,  if  any  person  violates any
26    provision of subsections (a) or  (b)  of  this  Section,  the
27    Attorney  General  may  bring  an  action against that person
28    seeking damages on behalf of the  State  for  the  violation,
29    restitution for damages suffered by any person as a result of
30    the  violation, or imposition and recovery of a civil penalty
31    of not more than $50,000 for the violation.
32        In addition to the remedies that may be  brought  by  the
33    Attorney  General, any person aggrieved by a violation of any
34    provision of subsections (a) or (b) of this Section may bring
                            -14-     LRB093 10959 MKM 12456 a
 1    an action in any State court to recover any damages  suffered
 2    as a result of the violation.
 3        In  any  action  brought under this subsection, the court
 4    may:
 5             (1) order  disgorgement  of  any  profits  or  other
 6        benefits  derived  as  a  result  of  a  violation of any
 7        provision of subsections (a) or (b) of this Section;
 8             (2) award punitive damages,  costs,  and  reasonable
 9        attorneys fees; and
10             (3)  order  injunctive  or  other  equitable relief.
11        Proof of public interest or public injury  shall  not  be
12        required in any action brought under this subsection (g).
13        No  action  may  be  brought  more than 3 years after the
14        occurrence of the violation.
15        Any person  who  knowingly  and  willfully  violates  any
16    provision  of  subsections  (a)  or  (b) shall be guilty of a
17    Class 3 felony.

18        Section 35.  Prohibition against discrimination.
19        (a)  No person shall retaliate  or  discriminate  in  any
20    manner  against  any public employee or employee of a private
21    contractor because that employee, or  any  person  acting  on
22    behalf of the employee, acting in good faith:
23             (1)   engaged   in  any  disclosure  of  information
24        relating to the services provided by a private contractor
25        pursuant to a privatization contract;
26             (2) advocated on behalf of service  recipients  with
27        respect  to  the care or services provided by the private
28        contractor; or
29             (3) initiated, cooperated, or otherwise participated
30        in any investigation or proceeding  of  any  governmental
31        entity  relating  to  the services provided pursuant to a
32        privatization contract.
33        (b)  No person shall retaliate  or  discriminate  in  any
                            -15-     LRB093 10959 MKM 12456 a
 1    manner  against  any public employee or employee of a private
 2    contractor because the  employee  has  attempted  or  has  an
 3    intention  to engage in an action described in subsection (a)
 4    of this Section.
 5        (c)  No person shall by contract,  policy,  or  procedure
 6    prohibit  or  restrict  any  employee of a private contractor
 7    from engaging in any action for which  a  protection  against
 8    discrimination or retaliation is provided under this Section.
 9        (d)  This Section does not protect disclosures that would
10    violate federal or State law or diminish or impair the rights
11    of  any person to the continued protection of confidentiality
12    of communications provided by State or federal law.
13        (e)  With respect to the conduct described in  subsection
14    (a)  of  this  Section,  an  employee of a private contractor
15    shall be considered  to  be  acting  in  good  faith  if  the
16    employee reasonably believes that the information is true and
17    the  information  disclosed  by the employee: (i) evidences a
18    violation of any law, rule, or regulation, or of a  generally
19    recognized professional or clinical standard; or (ii) relates
20    to   the  care,  services,  or  conditions  that  potentially
21    endanger one or  more  recipients  of  service  or  employees
22    employed pursuant to a privatization contract.
23        (f)  The  identity of an employee of a private contractor
24    who complains  in  good  faith  to  a  government  agency  or
25    department or any member or employee of the State legislature
26    about   the   quality  of  services  provided  by  a  private
27    contractor  shall  remain  confidential  and  shall  not   be
28    disclosed  by  any  person  except  upon  the knowing written
29    consent of the employee of the private contractor and  except
30    in  the  case  where  there  is  imminent danger to health or
31    public safety or an imminent violation of criminal law.
32        (g)  Any current or former public employee or employee of
33    a private contractor who believes that he  or  she  has  been
34    retaliated   or   discriminated   against   in  violation  of
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 1    subsections (a), (b), or (c) of this Section may file a civil
 2    action in any State court of competent  jurisdiction  against
 3    the person believed to have violated these subsections.
 4        (h)  If  the  court  determines  that a violation of this
 5    Section has occurred, the court shall award any damages  that
 6    result  from the unlawful act or acts, including compensatory
 7    damages, reinstatement, reimbursement of any  wages,  salary,
 8    employment  benefits, or other compensation denied or lost to
 9    such employee by reason of the violation, as well as punitive
10    damages, attorneys' fees, and costs, including expert witness
11    fees. The court shall award interest on the amount of damages
12    awarded at the prevailing rate.
13        (i) The  court  may  issue  temporary,  preliminary,  and
14    permanent  injunctive  relief  restraining violations of this
15    Act, including  the  restraint  of  any  withholding  of  the
16    payment  of  wages,  salary,  employment  benefits,  or other
17    compensation, plus interest, found by the court to be due and
18    the restraint of any other change in the terms and conditions
19    of employment and may award any other equitable relief as may
20    be  appropriate,  including  employment,  reinstatement,  and
21    promotion.
22        (j) An action may be brought under  this  subsection  not
23    later  than  2  years  after  the  date  of  the  last  event
24    constituting  the  alleged  violation for which the action is
25    brought.
26        (k)  Any person who violates a provision  of  subsections
27    (a),  (b), or (c) of this Section shall be subject to a civil
28    penalty of not to  exceed  $10,000  for  each  violation.  In
29    determining  the amount of any penalty under this subsection,
30    the appropriateness  of  the  penalty  to  the  size  of  the
31    business  of  the  person  charged  and  the  gravity  of the
32    violation shall be considered.  The  amount  of  any  penalty
33    under  this  subsection,  when  finally  determined,  may  be
34    deducted  from  any  sums  owing  by  the state to the person
                            -17-     LRB093 10959 MKM 12456 a
 1    charged or ordered to be paid to the  employee  or  employees
 2    who suffered retaliation or discrimination, as ordered by the
 3    court.
 4        (l)  In  any  civil  action  brought  under this Act, the
 5    complainant shall have the initial burden of making  a  prima
 6    facie showing that any behavior described in subsections (a),
 7    (b),  or (c) of this Section was a contributing factor in the
 8    adverse action or inaction alleged in the complaint. A  prima
 9    facie  case  shall be established if the complainant can show
10    that the  respondent  knew  of  the  complainant's  protected
11    activities at the time that the alleged unfavorable action or
12    inaction  was  taken  and  the discriminatory action occurred
13    within a period  of  time  that  a  reasonable  person  could
14    conclude  that an activity protected by subsections (a), (b),
15    or (c) of this Section  was  a  contributing  factor  in  the
16    discriminatory treatment.  Once the complainant establishes a
17    prima  facie  case,  the  burden  shifts to the respondent to
18    demonstrate, by clear and convincing evidence, that it  would
19    have taken the same adverse action or inaction in the absence
20    of such behavior.
21        (m)  Each  private contractor shall post and keep posted,
22    in conspicuous  places  on  its  premises  where  notices  to
23    employees  and  applicants  for  employment  are  customarily
24    posted,   a  notice,  to  be  prepared  or  approved  by  the
25    secretary, setting forth excerpts from, or summaries of,  the
26    pertinent  provisions  of this Act and information pertaining
27    to the filing of a charge under this Section.   Any  employer
28    that  willfully violates this Section may be assessed a civil
29    penalty not to exceed $100 for each separate offense.

30        Section 40.  Nonpreemption.  Nothing in this Act preempts
31    any other law, and nothing in this Act shall be construed  or
32    interpreted to impair or diminish in any way the authority of
33    any  locality,  municipality  or  subdivision  to  enact  and
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 1    enforce   any   law   that  provides  equivalent  or  greater
 2    protections for its employees.

 3        Section 45.  Severability.  If any provision of this  Act
 4    or  its application to any person or circumstances is held to
 5    be invalid, the invalidity of that provision  or  application
 6    does  not affect other provisions or applications of this Act
 7    that can be given effect without  the  invalid  provision  or
 8    application.

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