Full Text of SB2339 94th General Assembly
SB2339eng 94TH GENERAL ASSEMBLY
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| AN ACT concerning employment.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Minimum Wage Law is amended by changing | 5 |
| Sections 3, 7, and 12 as follows:
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| (820 ILCS 105/3) (from Ch. 48, par. 1003)
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| Sec. 3. As used in this Act:
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| (a) "Director" means the Director of the Department of | 9 |
| Labor, and
"Department" means the Department of Labor.
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| (b) "Wages" means compensation due to an employee by reason | 11 |
| of his
employment, including allowances determined by the | 12 |
| Director in
accordance with the provisions of this Act for | 13 |
| gratuities and, when
furnished by the employer, for meals and | 14 |
| lodging actually used by the
employee.
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| (c) "Employer" includes any individual, partnership, | 16 |
| association,
corporation, limited liability company, business | 17 |
| trust, governmental or quasi-governmental body, or
any person | 18 |
| or group of persons acting directly or indirectly in the
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| interest of an employer in relation to an employee, for which | 20 |
| one or
more persons are gainfully employed on some day within a | 21 |
| calendar year.
An employer is subject to this Act in a calendar | 22 |
| year on and after the
first day in such calendar year in which | 23 |
| he employs one or more persons,
and for the following calendar | 24 |
| year.
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| (d) "Employee" includes any individual permitted to work by | 26 |
| an
employer in an occupation, but does not include any | 27 |
| individual permitted
to work:
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| (1) For an employer employing fewer than 4 employees | 29 |
| exclusive of
the employer's parent, spouse or child or | 30 |
| other members of his immediate
family.
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| (2) As an employee employed in agriculture or | 32 |
| aquaculture (A) if such
employee is
employed by an employer |
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| who did not, during any calendar quarter during
the | 2 |
| preceding calendar year, use more than 500 man-days of | 3 |
| agricultural
or aquacultural
labor, (B) if such employee is | 4 |
| the parent, spouse or child, or other
member of the | 5 |
| employer's immediate family, (C) if such employee (i) is
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| employed as a hand harvest laborer and is paid on a piece | 7 |
| rate basis in
an operation which has been, and is | 8 |
| customarily and generally recognized
as having been, paid | 9 |
| on a piece rate basis in the region of employment,
(ii) | 10 |
| commutes daily from his permanent residence to the farm on | 11 |
| which he
is so employed, and (iii) has been employed in | 12 |
| agriculture less than 13
weeks during the preceding | 13 |
| calendar year, (D) if such employee (other
than an employee | 14 |
| described in clause (C) of this subparagraph): (i) is
16 | 15 |
| years of age or under and is employed as a hand harvest | 16 |
| laborer, is paid
on a piece rate basis in an operation | 17 |
| which has been, and is customarily
and generally recognized | 18 |
| as having been, paid on a piece rate basis in
the region of | 19 |
| employment, (ii) is employed on the same farm as his
parent | 20 |
| or person standing in the place of his parent, and (iii) is | 21 |
| paid
at the same piece rate as employees over 16 are paid | 22 |
| on the same farm.
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| (3) In domestic service in or about a private home.
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| (4) As an outside salesman.
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| (5) As a member of a religious corporation or | 26 |
| organization.
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| (6) At an accredited Illinois college or university | 28 |
| employed by the
college
or university at which he is a | 29 |
| student who is covered under the provisions
of the Fair | 30 |
| Labor Standards Act of 1938, as heretofore or hereafter
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| amended.
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| (7) For a motor carrier and with respect to whom the | 33 |
| U.S. Secretary of
Transportation has the power to establish | 34 |
| qualifications and maximum hours of
service under the | 35 |
| provisions of Title 49 U.S.C. or the State of Illinois | 36 |
| under
Section 18b-105 (Title 92 of the Illinois |
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| Administrative Code, Part 395 -
Hours of Service of | 2 |
| Drivers) of the Illinois Vehicle
Code.
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| The above exclusions from the term "employee" may be | 4 |
| further defined
by regulations of the Director.
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| (e) "Occupation" means an industry, trade, business or | 6 |
| class of work
in which employees are gainfully employed.
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| (f) "Gratuities" means voluntary monetary contributions to | 8 |
| an
employee from a guest, patron or customer in connection with | 9 |
| services
rendered.
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| (g) "Outside salesman" means an employee regularly engaged | 11 |
| in making
sales or obtaining orders or contracts for services | 12 |
| where a major
portion of such duties are performed away from | 13 |
| his employer's place of
business.
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| (Source: P.A. 91-357, eff. 7-29-99.)
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| (820 ILCS 105/7) (from Ch. 48, par. 1007)
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| Sec. 7. The Director or his authorized representatives have | 17 |
| the authority to:
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| (a) Investigate and gather data regarding the wages, hours | 19 |
| and other
conditions and practices of employment in any | 20 |
| industry subject to this Act,
and may enter and inspect such | 21 |
| places and such records (and make such
transcriptions thereof) | 22 |
| at reasonable times during regular business hours,
not | 23 |
| including lunch time at a restaurant, question such employees, | 24 |
| and
investigate such facts, conditions, practices or matters as | 25 |
| he may deem
necessary or appropriate to determine whether any | 26 |
| person has violated any
provision of this Act, or which may aid | 27 |
| in the enforcement of this Act.
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| (b) Require from any employer full and correct statements | 29 |
| and reports in
writing, including sworn statements, at such | 30 |
| times as the Director may deem
necessary, of the wages, hours, | 31 |
| names, addresses, and other information
pertaining to his | 32 |
| employees as he may deem necessary for the enforcement of
this | 33 |
| Act.
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| (c) Require by subpoena the attendance and testimony of | 35 |
| witnesses and the production of all books, records, and other |
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| evidence relative to a matter under investigation or hearing. | 2 |
| The subpoena shall be signed and issued by the Director or his | 3 |
| or her authorized representative. If a person fails to comply | 4 |
| with any subpoena lawfully issued under this Section or a | 5 |
| witness refuses to produce evidence or testify to any matter | 6 |
| regarding which he or she may be lawfully interrogated, the | 7 |
| court shall, upon application of the Director or his or her | 8 |
| authorized representative, compel obedience by proceedings for | 9 |
| contempt.
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| (Source: P.A. 77-1451.)
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| (820 ILCS 105/12) (from Ch. 48, par. 1012)
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| Sec. 12. (a) If any employee is paid by his employer less | 13 |
| than the wage
to which he is entitled under the provisions of | 14 |
| this Act, the employee may
recover in a civil
action the amount | 15 |
| of any such underpayments together with costs and such
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| reasonable attorney's fees as may be allowed by the Court, and | 17 |
| damages of 2% of the amount of any such underpayments for each | 18 |
| month following the date of payment during which such | 19 |
| underpayments remain unpaid. Any
any
agreement between the | 20 |
| employee
him and the
his employer to work for less than such | 21 |
| wage is
no defense to such action. At the request of the | 22 |
| employee or on motion
of the Director of Labor, the
Department | 23 |
| of Labor may make an assignment of such wage claim in trust for
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| the assigning employee and may bring any legal action necessary | 25 |
| to collect
such claim, and the employer shall be required to | 26 |
| pay the costs incurred in
collecting such claim. Every such | 27 |
| action shall be brought within
3 years from the date of the | 28 |
| underpayment. Such employer shall be liable
to the Department | 29 |
| of Labor for 20% of the total employer's underpayment
and shall | 30 |
| be additionally
liable to the employee for punitive damages in | 31 |
| the amount of 2% of the amount
of any such underpayments for | 32 |
| each month following the date of payment
during which such | 33 |
| underpayments
remain unpaid. Such employer shall be | 34 |
| additionally liable to the Department of Labor for up to 20% of | 35 |
| the total employer's underpayment where the employer's conduct |
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| is proven by a preponderance of the evidence to be willful, | 2 |
| repeated, or with reckless disregard of this Act or any rule | 3 |
| adopted under this Act. These penalties and damages
The | 4 |
| Director may promulgate rules for the collection of these
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| penalties. The amount of a penalty may be determined, and the | 6 |
| penalty may be
assessed, through an administrative hearing. The | 7 |
| penalty may be recovered in a
civil action brought by the | 8 |
| Director of Labor in any circuit court. The penalty
shall be | 9 |
| imposed in cases in which an employer's conduct is proven by a
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| preponderance of the evidence to be willful. In any
such | 11 |
| action, the Director of Labor shall be represented by the | 12 |
| Attorney
General.
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| (b) The Director is authorized to supervise the payment of | 14 |
| the unpaid
minimum wages and the unpaid overtime compensation | 15 |
| owing to any employee
or employees under Sections 4 and 4a of | 16 |
| this Act and may bring any legal
action necessary to recover | 17 |
| the amount of the unpaid minimum wages and unpaid
overtime | 18 |
| compensation and an equal additional amount as punitive
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| damages,
and the employer shall be required to pay the costs | 20 |
| incurred in collecting such claim. Such
and the employer shall | 21 |
| be additionally liable to the Department of Labor for up to 20% | 22 |
| of the total employer's underpayment where the employer's | 23 |
| conduct is proven by a preponderance of the evidence to be | 24 |
| willful, repeated, or with reckless disregard of this Act or | 25 |
| any rule adopted under this Act.
be required to pay the costs.
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| The action shall be brought within 5 years from the date of the | 27 |
| failure to
pay
the wages or compensation.
Any sums thus | 28 |
| recovered
by the Director on behalf of an employee pursuant to | 29 |
| this subsection shall
be paid to the employee or employees | 30 |
| affected. Any sums which, more than one
year after being thus | 31 |
| recovered, the Director is unable to pay to
an employee shall | 32 |
| be deposited into the General Revenue Fund.
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| (Source: P.A. 92-392, eff. 1-1-02.)
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| Section 10. The Illinois Wage Payment and Collection Act is | 35 |
| amended by changing Sections 2 and 14 as follows:
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| (820 ILCS 115/2) (from Ch. 48, par. 39m-2)
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| Sec. 2. For all employees, other than separated employees, | 3 |
| "wages"
shall be defined as any compensation owed an employee | 4 |
| by an employer pursuant
to an employment contract or agreement | 5 |
| between the 2 parties, whether
the amount is determined on a | 6 |
| time, task, piece, or any other basis of
calculation. Payments | 7 |
| to separated employees shall be termed "final
compensation" and | 8 |
| shall be defined as wages, salaries, earned commissions,
earned | 9 |
| bonuses, and the monetary equivalent of earned vacation and | 10 |
| earned
holidays, and any other compensation owed the employee | 11 |
| by the employer pursuant
to an employment contract or agreement | 12 |
| between the 2 parties. Where an
employer is legally committed | 13 |
| through a collective bargaining agreement
or otherwise to make | 14 |
| contributions to an employee benefit, trust or fund on
the | 15 |
| basis of a certain amount per hour, day, week or other period | 16 |
| of time,
the amount due from the employer to such employee | 17 |
| benefit, trust, or fund
shall be defined as "wage supplements", | 18 |
| subject to the wage collection
provisions of this Act.
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| As used in this Act, the term "employer" shall include any | 20 |
| individual,
partnership, association, corporation, limited | 21 |
| liability company, business trust, employment and
labor | 22 |
| placement agencies where wage payments are made
directly or | 23 |
| indirectly by the agency or business for work undertaken by
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| employees under hire to a third party pursuant to a contract | 25 |
| between the
business or agency with the third party, or any | 26 |
| person or group of
persons acting directly or indirectly in the | 27 |
| interest of an employer in
relation to an employee, for which | 28 |
| one or more persons is gainfully employed.
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| As used in this Act, the term "employee" shall include any | 30 |
| individual
permitted to work by an employer in an occupation, | 31 |
| but shall not include any
individual:
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| (1) who has been and will continue to be free from | 33 |
| control and direction
over the performance of his work, | 34 |
| both under his contract of service with his
employer and in | 35 |
| fact; and
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| (2) who performs work which is either outside the usual | 2 |
| course of business
or is performed outside all of the | 3 |
| places of business of the employer unless
the employer is | 4 |
| in the business of contracting with third parties for the
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| placement of employees; and
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| (3) who is in an independently established trade, | 7 |
| occupation, profession
or business.
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| (Source: P.A. 89-364, eff. 8-18-95; 89-626, eff. 8-9-96.)
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| (820 ILCS 115/14) (from Ch. 48, par. 39m-14)
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| Sec. 14. (a) Any employer or any agent of an employer, who, | 11 |
| being able to pay wages,
final compensation, or wage | 12 |
| supplements and being under a duty to pay,
wilfully refuses to | 13 |
| pay as provided in this Act, or falsely denies the
amount or | 14 |
| validity thereof or that the same is due, with intent to secure
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| for himself or other person any underpayment of such | 16 |
| indebtedness or with
intent to annoy, harass, oppress, hinder, | 17 |
| delay or defraud the person to
whom such indebtedness is due, | 18 |
| upon conviction, is guilty of a Class C
misdemeanor. Each day | 19 |
| during which any violation of this Act continues
shall | 20 |
| constitute a separate and distinct offense.
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| (b) Any employer who has been demanded
ordered by the | 22 |
| Director of Labor or ordered by the court
to pay wages due an | 23 |
| employee and who shall fail to do so within 15 days
after such | 24 |
| demand or order is entered shall be liable to pay a penalty of | 25 |
| 1% per
calendar day to the employee for each day of delay in | 26 |
| paying such wages to
the employee up to an amount equal to | 27 |
| twice the sum of unpaid wages due the
employee.
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| (c) Any employer, or any agent of an employer, who | 29 |
| knowingly discharges
or in any other manner knowingly | 30 |
| discriminates against any employee because
that employee
has | 31 |
| made a complaint to his employer, or to the Director of Labor | 32 |
| or his
authorized representative, that he or she has not been | 33 |
| paid in accordance
with the provisions of this Act, or because | 34 |
| that employee has caused to
be instituted any proceeding under | 35 |
| or related to this Act, or because that
employee has testified |
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| or is about to testify in an investigation or proceeding
under | 2 |
| this Act, is guilty, upon conviction, of a Class C misdemeanor.
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| (Source: P.A. 83-202.)
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| Section 99. Effective date. This Act takes effect upon | 5 |
| becoming law.
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