093_SB1856sam001

 










                                     LRB093 11081 WGH 12408 a

 1                    AMENDMENT TO SENATE BILL 1856

 2        AMENDMENT NO.     .  Amend Senate Bill 1856 by  replacing
 3    everything after the enacting clause with the following:

 4        "Section  5.  The Minimum Wage Law is amended by changing
 5    Sections 7 and 12 and adding Section 7.1 as follows:

 6        (820 ILCS 105/7) (from Ch. 48, par. 1007)
 7        Sec. 7.  The Director or his  authorized  representatives
 8    have the authority to:
 9        (a)  Investigate  and  gather  data  regarding the wages,
10    hours and other conditions and practices of employment in any
11    industry subject to this Act, and may enter and inspect  such
12    places   and  such  records  (and  make  such  transcriptions
13    thereof) at reasonable times during regular  business  hours,
14    not  including  lunch  time  at  a  restaurant, question such
15    employees, and investigate such facts, conditions,  practices
16    or  matters  as  he  may  deem  necessary  or  appropriate to
17    determine whether any person has violated  any  provision  of
18    this Act, or which may aid in the enforcement of this Act.
19        (b)  Require   from   any   employer   full  and  correct
20    statements  and   reports   in   writing,   including   sworn
21    statements, at such times as the Director may deem necessary,
22    of  the wages, hours, names, addresses, and other information
 
                            -2-      LRB093 11081 WGH 12408 a
 1    pertaining to his employees as he may deem necessary for  the
 2    enforcement of this Act.
 3        (c) If, as a result of the Director's investigation of an
 4    employer's records under subsection (b) it is determined that
 5    an  employee  has been paid less than the wage to which he or
 6    she is  entitled  under  the  provisions  of  this  Act,  the
 7    Director  may   issue an administrative determination setting
 8    out the amount  of the underpayment together with any penalty
 9    or punitive  damages authorized under Section 12 of this Act.
10    A notice of  this administrative determination shall be  sent
11    to  the   employer.   The Department's determination shall be
12    deemed  prima facie correct and shall be prima facie evidence
13    of the  correctness of the Department's  computation  of  the
14    underpayment, as shown therein. Proof of the determination by
15    the  Department  may  be  made  at  any  hearing  before  the
16    Department or in any legal proceeding by a reproduced copy or
17    computer   print-out  of  the  Department's  record  relating
18    thereto in the name of the Department under  the  certificate
19    of  the  Director.   If reproduced copies of the Department's
20    records are  offered  as  proof  of  the  determination,  the
21    Director  must  certify  that those copies are true and exact
22    copies of records on file with the Department.   If  computer
23    print-outs  of  the Department's records are offered as proof
24    of the determination, the Director must  certify  that  those
25    computer  print-outs  are  true  and exact representations of
26    records properly entered into standard  electronic  computing
27    equipment,   in   the  regular  course  of  the  Department's
28    business, at or reasonably near the time of the occurrence of
29    the   facts   recorded,   from   trustworthy   and   reliable
30    information.  The  certified  reproduced  copy  or  certified
31    computer print-out shall, without further proof, be admitted
32    into   evidence   before  the  Department  or  in  any  legal
33    proceeding and shall be prima facie proof of the correctness
34    of the Department's determination, as shown therein.
 
                            -3-      LRB093 11081 WGH 12408 a
 1        If the employer or the  employer's  legal  representative
 2    shall  within  60  days  after  the  notice of administrative
 3    determination file a protest to the notice of administrative
 4    determination and request a  hearing,  the  Department  shall
 5    give  notice  to  the employer or legal representative of the
 6    time and place fixed for the hearing and shall hold a hearing
 7    in conformity with the provisions of this Act,  and  pursuant
 8    thereto shall issue to the employer or legal representative a
 9    final administrative decision resolving the dispute.
10        If   a   protest   to   the   notice   of  administrative
11    determination and a request for  a  hearing  thereon  is  not
12    filed  within  60  days  after  the  notice,  the  notice  of
13    administrative    determination    shall   become   a   final
14    administrative decision without  the  necessity  of  a  final
15    administrative  decision  being issued and shall be deemed to
16    be a final administrative decision.
17        If notice is required by this Act, notice may be    given
18    by  United States registered or certified mail,  addressed to
19    the person concerned at his last known address,  and proof of
20    the mailing shall be sufficient for the  purposes    of  this
21    Act. Notice of any hearing provided for by this Act  shall be
22    given  not  less  than 7 days prior to the day fixed  for the
23    hearing.   Following  the  initial  contact   of   a   person
24    represented by an attorney, the Department shall not contact
25    the  person  concerned  but  shall  only contact the attorney
26    representing the person concerned.
27        Proof of the Department's administrative decision may  be
28    made  at  any  hearing  before the Department or in any legal
29    proceeding by a reproduced copy of  the  Department's  record
30    relating  thereto  in  the  name  of the Department under the
31    certificate of the  Director.   The  reproduced  copy  shall,
32    without  further  proof, be admitted into evidence before the
33    Department or in any legal  proceeding  and  shall  be  prima
34    facie  proof  of  the  correctness  of the decision, as shown
 
                            -4-      LRB093 11081 WGH 12408 a
 1    therein.
 2    (Source: P.A. 77-1451.)

 3        (820 ILCS 105/7.1 new)
 4        Sec. 7.1. Administrative review.  The  circuit  court  of
 5    the  County  where  the  person aggrieved by the Department's
 6    final administrative decision has his or her principal place
 7    of business, or of Sangamon County in those cases  where  the
 8    taxpayer does not have his or her principal place of business
 9    in   this  State,  shall  have  power  to  review  all  final
10    administrative decisions of the Department  in  administering
11    the provisions of this Act.
12        The provisions of the Administrative Review Law, and the
13    rules adopted pursuant thereto, shall apply to and govern all
14    proceedings  for  the judicial review of final administrative
15    decisions  of  the  Department  under  this  Act.  The   term
16    "administrative  decision"  is defined as in Section 3-101 of
17    the Code of Civil Procedure.
18        Service upon the Director of summons issued in an action
19    to review a final administrative decision of  the  Department
20    shall  be  service  upon the Department. The Department shall
21    certify the record of its proceedings if the  plaintiff  pays
22    to it the sum of 75 cents per page of testimony taken before
23    the  Department  and  25  cents per page of all other matters
24    contained in such record, except that these  charges  may  be
25    waived  if the Department is satisfied that the plaintiff  is
26    a poor person who cannot  afford  to  pay  such  charges.  If
27    payment  for  such record is not made by the plaintiff within
28    30 days after notice from  the  Department  or  the  Attorney
29    General   of  the  cost  thereof,  the  court  in  which  the
30    proceeding is pending, on motion  of  the  Department,  shall
31    dismiss  the  complaint  and shall enter judgment against the
32    plaintiff and in favor of the Department.
 
                            -5-      LRB093 11081 WGH 12408 a
 1        (820 ILCS 105/12) (from Ch. 48, par. 1012)
 2        Sec. 12.  (a) If any employee is  paid  by  his  employer
 3    less  than  the  wage  to  which  he  is  entitled  under the
 4    provisions of this Act, the employee may recover in  a  civil
 5    action  the  amount  of  any such underpayments together with
 6    costs and such reasonable attorney's fees as may  be  allowed
 7    by  the Court, and any agreement between him and his employer
 8    to work for less than such wage is no defense to such action.
 9        (a-5)  At the request of the employee or on motion of the
10    Director of Labor,  the  Department  of  Labor  may  make  an
11    assignment  of  such  wage  claim  in trust for the assigning
12    employee and may bring any legal action necessary to  collect
13    such  claim,  and  the  employer shall be required to pay the
14    costs incurred in collecting such claim.  Every  such  action
15    shall  be  brought  within  3  years  from  the  date  of the
16    underpayment. The Department's complaint  on  behalf  of  the
17    employee  shall  be  accompanied  by  a certified copy of the
18    Department's  final  administrative  decision   or,   if   no
19    administrative  hearing  was sought, a certified copy  of the
20    Department's administrative determination.   The    complaint
21    shall  include a recitation of facts sufficient to  show that
22    the Department complied with the requirements of  the Act  in
23    arriving  at  its  administrative  determination  or    final
24    administrative   decision,  and  that  the  employer  had  an
25    opportunity for administrative hearing and  judicial  review,
26    whether or not he or she availed himself or herself of either
27    or  both  of these  opportunities.  If the court is satisfied
28    that the Department  has complied with  the  requirements  of
29    the  Act  and  that the  employer has had the opportunity for
30    administrative hearing  and judicial review, whether  or  not
31    the   employer   availed     himself  or  herself  of  either
32    opportunity, judgment shall be  entered  in    favor  of  the
33    Department and against the employer.
34        Such  employer shall be liable to the Department of Labor
 
                            -6-      LRB093 11081 WGH 12408 a
 1    for 20% of the total employer's  underpayment  and  shall  be
 2    additionally  liable  to the employee for punitive damages in
 3    the amount of 2% of the amount of any such underpayments  for
 4    each  month  following  the date of payment during which such
 5    underpayments remain unpaid.   The  Director  may  promulgate
 6    rules for the collection of these penalties.  The amount of a
 7    penalty  may  be determined, and the penalty may be assessed,
 8    through  an  administrative  hearing.   The  penalty  may  be
 9    recovered in a civil action brought by the Director of  Labor
10    in  any  circuit court. The penalty shall be imposed in cases
11    in which an employer's conduct is proven by  a  preponderance
12    of  the  evidence  to  be  willful.   In any such action, the
13    Director of  Labor  shall  be  represented  by  the  Attorney
14    General.
15        The penalty payable to the Department shall be deposited
16    into   a  Special  Administrative  Account  which  is  hereby
17    created.  The amount in this Account in excess of $100,000 on
18    the close of business  of  the  last  business  day  of  each
19    calendar  quarter  shall  immediately  be  transferred to the
20    General Revenue Fund.  The moneys available  in  the  Special
21    Administrative  Account  shall be expended upon the direction
22    of the Director whenever it appears to the Director that  the
23    expenditure is necessary for:
24             (1)  The payment of salaries and expenses connected
25        with  the  conduct of investigations and hearings and the
26        issuance  of  administrative  determinations  and   final
27        administrative decisions under this Act.
28             (2)  The payment of any fees due private collection
29        agencies for collecting amounts due from employers under
30        this Act.
31        This  Special  Administrative Account shall be considered
32    always appropriated for  the  purposes  of  disbursements  as
33    provided  in  this  Act  and  shall be paid out and disbursed
34    only as  provided  herein  and  shall  not  at  any  time  be
 
                            -7-      LRB093 11081 WGH 12408 a
 1    appropriated or diverted to any other use or purpose.
 2        (b)  The  Director is authorized to supervise the payment
 3    of  the  unpaid  minimum  wages  and  the   unpaid   overtime
 4    compensation   owing  to  any  employee  or  employees  under
 5    Sections 4 and 4a of this Act and may bring any legal  action
 6    necessary  to  recover the amount of the unpaid minimum wages
 7    and unpaid overtime  compensation  and  an  equal  additional
 8    amount  as  punitive  damages,  and  the  employer  shall  be
 9    required to pay the costs. The action shall be brought within
10    5  years  from  the  date  of the failure to pay the wages or
11    compensation. Any sums thus  recovered  by  the  Director  on
12    behalf  of  an  employee pursuant to this subsection shall be
13    paid to the employee or employees affected.  Any sums  which,
14    more  than  one year after being thus recovered, the Director
15    is unable to pay to an employee shall be deposited  into  the
16    General Revenue Fund.
17    (Source: P.A. 92-392, eff. 1-1-02.)

18        Section 10.  The Illinois Wage Payment and Collection Act
19    is  amended by changing Sections 11 and 14 and adding Section
20    11.1 as follows:

21        (820 ILCS 115/11) (from Ch. 48, par. 39m-11)
22        Sec. 11.  It shall be the duty of the Department of Labor
23    to inquire diligently for any violations of this Act, and  to
24    institute  the  actions for penalties herein provided, and to
25    enforce generally the provisions of this Act.
26        The department shall have the following powers:
27        (a)  To  investigate  and  attempt  equitably  to  adjust
28    controversies between employees and employers in  respect  of
29    wage  claims  arising  under  this  Act  and  to that end the
30    department through the Director of Labor or any other  person
31    in  the  Department  of Labor designated by him or her, shall
32    have the power to  administer  oaths,  subpoena  and  examine
 
                            -8-      LRB093 11081 WGH 12408 a
 1    witnesses,  to  issue  subpoenas  duces  tecum  requiring the
 2    production of such books, papers, records  and  documents  as
 3    may  be  evidence  of any matter under inquiry and to examine
 4    and inspect the  same  as  may  relate  to  the  question  in
 5    dispute.   Service  of  such  subpoenas  shall be made by any
 6    sheriff or any person.  Any court in  this  State,  upon  the
 7    application  of  the  department  may  compel  attendance  of
 8    witnesses, the production of books and papers, and the giving
 9    of testimony before the department by attachment for contempt
10    or  in  any  other  way  as the production of evidence may be
11    compelled before such court.
12        (a-5)  In  those  cases  involving  less  than   $10,000,
13    exclusive of any penalties or interest, where the Department
14    is  unable  to  equitably  adjust  a  wage  claim controversy
15    between employees and employers to the mutual satisfaction of
16    all parties, the Department  shall  issue  an  administrative
17    determination  adjudicating  the wage claim dispute according
18    to its  best  information  and  judgment.   The  Department's
19    determination  shall  be deemed prima facie correct and shall
20    be  prima  facie  evidence  of   the   correctness   of   the
21    Department's  resolution  of  the  wage claim controversy, as
22    shown therein.  Proof of the determination by  the Department
23    may be made at any hearing before the Department  or  in  any
24    legal  proceeding  by a reproduced copy or computer print-out
25    of the Department's record relating thereto in  the  name  of
26    the  Department  under  the certificate of the Director.   If
27    reproduced copies of the Department's records are offered as
28    proof of the determination, the Director  must  certify  that
29    those  copies  are  true  and exact copies of records on file
30    with  the  Department.   If  computer   print-outs   of   the
31    Department's   records   are   offered   as   proof   of  the
32    determination, the Director must certify that those computer
33    print-outs are true  and  exact  representations  of  records
34    properly   entered   into   standard   electronic   computing
 
                            -9-      LRB093 11081 WGH 12408 a
 1    equipment,   in   the  regular  course  of  the  Department's
 2    business, at or reasonably near the time of the occurrence of
 3    the   facts   recorded,   from   trustworthy   and   reliable
 4    information.  The  certified  reproduced  copy  or  certified
 5    computer print-out shall, without further proof, be admitted
 6    into   evidence   before  the  Department  or  in  any  legal
 7    proceeding and shall be prima facie proof of the correctness
 8    of the Department's determination,  as  shown  therein.   The
 9    Department   shall  issue  a  notice  of  its  administrative
10    determination to all parties to the wage claim controversy.
11        If any party to the dispute  that  is  aggrieved  by  the
12    Department's  administrative  determination  or  that party's
13    legal representative shall within 60 days after  issuance  of
14    the notice of  administrative determination file a protest to
15    the  notice  of    administrative determination and request a
16    hearing thereon,  the Department shall give  notice  to  that
17    person  or  legal  representative of the time and place fixed
18    for the hearing  and shall hold a hearing in conformity  with
19    the provisions of  this Act, and pursuant thereto shall issue
20    to   that   person   or      legal   representative  a  final
21    administrative decision  resolving the dispute.
22        If  a   protest   to   the   notice   of   administrative
23    determination  and  a  request  for  a hearing thereon is not
24    filed within 60 days after issuance of the notice, the notice
25    of    administrative  determination  shall  become  a   final
26    administrative  decision  without  the  necessity  of a final
27    administrative decision being issued and shall be  deemed  to
28    be a final administrative decision.
29        Whenever  notice  is  required by this Act, notice may be
30    given  by  United  States  registered  or   certified   mail,
31    addressed  to  the  person concerned at his or her last known
32    address,  and proof of the mailing shall  be  sufficient  for
33    the purposes  of this Act. Notice of any hearing provided for
34    by this Act  shall be given not less than 7 days prior to the
 
                            -10-     LRB093 11081 WGH 12408 a
 1    day  fixed  for the hearing. Following the initial contact of
 2    a person  represented by an attorney,  the  Department  shall
 3    not  contact  the person concerned but shall only contact the
 4    attorney  representing the person concerned.
 5        Proof of the Department's final  administrative  decision
 6    may  be   made at any hearing before the Department or in any
 7    legal  proceeding by a reproduced copy  of  the  Department's
 8    record   relating thereto in the name of the Department under
 9    the  certificate of the Director.  The reproduced copy shall,
10    without further proof, be admitted into evidence  before  the
11    Department  or  in  any  legal  proceeding and shall be prima
12    facie proof of the correctness of  the  final  administrative
13    decision, as shown  therein.
14        (b)  To  take  assignments  of wage claims resulting from
15    final administrative decisions in the name of the Director of
16    Labor and his or  her  successors  in  office  and  prosecute
17    actions  for  the  collection  of  wages based on those final
18    administrative decisions for persons  financially  unable  to
19    prosecute  such claims when in the judgment of the department
20    such claims are valid and  enforceable  in  the  courts.  The
21    Department's  complaint  on  behalf  of such persons shall be
22    accompanied by a certified copy  of  the  Department's  final
23    administrative decision or, if no  administrative hearing was
24    sought,  a certified copy of the  Department's administrative
25    determination.  The complaint  shall include a recitation  of
26    facts  sufficient  to show that  the Department complied with
27    the  requirements  of  this  Act  in      arriving   at   its
28    administrative   determination   or   final    administrative
29    decision, and that the person aggrieved by the   Department's
30    actions  had  an  opportunity for administrative  hearing and
31    judicial review, whether or not he or she availed  himself or
32    herself of either or both of  these  opportunities.   If  the
33    court is satisfied that the Department has complied with the
34    requirements of this Act and that the person aggrieved by the
 
                            -11-     LRB093 11081 WGH 12408 a
 1    Department's   decision   has   had   the   opportunity   for
 2    administrative  hearing  and  judicial review, whether or not
 3    the person availed himself of  either  opportunity,  judgment
 4    shall  be  entered in favor of the Department and against the
 5    defendant.
 6        No court costs or any  fees  for  necessary  process  and
 7    proceedings shall be payable in advance by the department for
 8    prosecuting  such  actions.  In the event there is a judgment
 9    rendered against the defendant, the  court  shall  assess  as
10    part  of  such  judgment  the costs of such proceeding.  Upon
11    collection of such judgments  in  favor  of  an  employee  or
12    employees  the department shall pay from the proceeds of such
13    judgment such costs to such person who is by law entitled  to
14    same.   The  department  may  join in a single proceeding any
15    number of wage claims against the same employer but the court
16    shall have  discretionary  power  to  order  a  severance  or
17    separate trial for hearings.
18        (c)  To   make   complaint  in  any  court  of  competent
19    jurisdiction of violations of this Act.
20        Nothing herein shall be construed to prevent any employee
21    from making complaint or prosecuting his or her own claim for
22    wages.
23        Nothing herein shall be construed to limit the  authority
24    of  the  State's  attorney of any county to prosecute actions
25    for violation of  this  Act  or  to  enforce  the  provisions
26    thereof  independently  and without specific direction of the
27    Department of Labor.
28    (Source: P.A. 83-1362.)

29        (820 ILCS 115/11.1 new)
30        Sec. 11.1. Administrative review.  The circuit  court  of
31    the  County  where  the  person aggrieved by the Department's
32    final administrative decision has his or her principal place
33    of business, or of Sangamon County in those cases  where  the
 
                            -12-     LRB093 11081 WGH 12408 a
 1    taxpayer does not have his or her principal place of business
 2    in   this  State,  shall  have  power  to  review  all  final
 3    administrative decisions of the Department  in  administering
 4    the provisions of this Act.
 5        The provisions of the Administrative Review Law, and the
 6    rules adopted pursuant thereto, shall apply to and govern all
 7    proceedings  for  the judicial review of final administrative
 8    decisions  of  the  Department  under  this  Act.  The   term
 9    "administrative  decision"  is defined as in Section 3-101 of
10    the Code of Civil Procedure.
11        Service upon the Director of summons issued in an action
12    to review a final administrative decision of  the  Department
13    shall  be  service  upon the Department. The Department shall
14    certify the record of its proceedings if the  plaintiff  pays
15    to it the sum of 75 cents per page of testimony taken before
16    the  Department  and  25  cents per page of all other matters
17    contained in such record, except that these  charges  may  be
18    waived  if the Department is satisfied that the plaintiff  is
19    a poor person who cannot afford  to  pay  those  charges.  If
20    payment  for  the  record is not made by the plaintiff within
21    30 days after notice from  the  Department  or  the  Attorney
22    General   of  the  cost  thereof,  the  court  in  which  the
23    proceeding is pending, on motion  of  the  Department,  shall
24    dismiss  the  complaint  and shall enter judgment against the
25    plaintiff and in favor of the Department.

26        (820 ILCS 115/14) (from Ch. 48, par. 39m-14)
27        Sec. 14.  (a)  Any employer or any agent of an  employer,
28    who,  being  able  to  pay wages, final compensation, or wage
29    supplements and being under a duty to pay,  wilfully  refuses
30    to  pay as provided in this Act, or falsely denies the amount
31    or validity thereof or that the same is due, with  intent  to
32    secure  for  himself or other person any underpayment of such
33    indebtedness  or  with  intent  to  annoy,  harass,  oppress,
 
                            -13-     LRB093 11081 WGH 12408 a
 1    hinder, delay or defraud the person to whom such indebtedness
 2    is due, upon conviction, is guilty of a Class C  misdemeanor.
 3    Each  day  during  which  any violation of this Act continues
 4    shall constitute a separate and distinct offense.
 5        (b)  Any employer who has been ordered by the Director of
 6    Labor or the court to pay wages due an employee and who shall
 7    fail to do so within 15 days  after  such  order  is  entered
 8    shall  be  liable  to pay a penalty of 1% per calendar day to
 9    the employee for each day of delay in paying  such  wages  to
10    the employee up to an amount equal to twice the sum of unpaid
11    wages due the employee.
12        In addition, the employer shall pay to the Department of
13    Labor  a  penalty  equal  to  20%  of the amount due from the
14    employer.  This penalty shall be  deposited  into  a  Special
15    Administrative  Account  which is hereby created.  The amount
16    in this Account  in  excess  of  $100,000  on  the  close  of
17    business  of  the  last business day of each calendar quarter
18    shall immediately be transferred to the General Revenue Fund.
19    The moneys available in the  Special  Administrative  Account
20    shall  be  expended  upon the direction of the Director if it
21    appears to the Director that such  expenditure  is  necessary
22    for:
23             (1)  The payment of salaries and expenses connected
24        with  the  conduct of investigations and hearings and the
25        issuance  of  administrative  determinations  and   final
26        administrative decisions under this Act.
27             (2)  The payment of any fees due private collection
28        agencies for collecting amounts due from employers under
29        this Act.
30        This  Special  Administrative Account shall be considered
31    always appropriated for the  purposes  of  disbursements,  as
32    provided  in  this  Act,  and shall be paid out and disbursed
33    only as provided herein, and  shall  not,  at  any  time,  be
34    appropriated or diverted to any other use or purpose.
 
                            -14-     LRB093 11081 WGH 12408 a
 1        (c)  Any  employer,  or  any  agent  of  an employer, who
 2    knowingly  discharges  or  in  any  other  manner   knowingly
 3    discriminates  against any employee because that employee has
 4    made a complaint to his employer, or to the Director of Labor
 5    or his authorized representative, that he or she has not been
 6    paid in accordance  with  the  provisions  of  this  Act,  or
 7    because  that  employee  has  caused  to  be  instituted  any
 8    proceeding  under  or  related  to  this Act, or because that
 9    employee  has  testified  or  is  about  to  testify  in   an
10    investigation  or  proceeding under this Act, is guilty, upon
11    conviction, of a Class C misdemeanor.
12    (Source: P.A. 83-202.)".