Illinois General Assembly - Full Text of SB2339
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Full Text of SB2339  94th General Assembly


Sen. Miguel del Valle

Filed: 2/7/2006





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2     AMENDMENT NO. ______. Amend Senate Bill 2339 by replacing
3 everything after the enacting clause with the following:
4     "Section 5. The Minimum Wage Law is amended by changing
5 Sections 3, 7, and 12 as follows:
6     (820 ILCS 105/3)  (from Ch. 48, par. 1003)
7     Sec. 3. As used in this Act:
8     (a) "Director" means the Director of the Department of
9 Labor, and "Department" means the Department of Labor.
10     (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.
15     (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
19 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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1     (d) "Employee" includes any individual permitted to work by
2 an employer in an occupation, but does not include any
3 individual permitted to work:
4         (1) For an employer employing fewer than 4 employees
5     exclusive of the employer's parent, spouse or child or
6     other members of his immediate family.
7         (2) As an employee employed in agriculture or
8     aquaculture (A) if such employee is employed by an employer
9     who did not, during any calendar quarter during the
10     preceding calendar year, use more than 500 man-days of
11     agricultural or aquacultural labor, (B) if such employee is
12     the parent, spouse or child, or other member of the
13     employer's immediate family, (C) if such employee (i) is
14     employed as a hand harvest laborer and is paid on a piece
15     rate basis in an operation which has been, and is
16     customarily and generally recognized as having been, paid
17     on a piece rate basis in the region of employment, (ii)
18     commutes daily from his permanent residence to the farm on
19     which he is so employed, and (iii) has been employed in
20     agriculture less than 13 weeks during the preceding
21     calendar year, (D) if such employee (other than an employee
22     described in clause (C) of this subparagraph): (i) is 16
23     years of age or under and is employed as a hand harvest
24     laborer, is paid on a piece rate basis in an operation
25     which has been, and is customarily and generally recognized
26     as having been, paid on a piece rate basis in the region of
27     employment, (ii) is employed on the same farm as his parent
28     or person standing in the place of his parent, and (iii) is
29     paid at the same piece rate as employees over 16 are paid
30     on the same farm.
31         (3) In domestic service in or about a private home.
32         (4) As an outside salesman.
33         (5) As a member of a religious corporation or
34     organization.



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1         (6) At an accredited Illinois college or university
2     employed by the college or university at which he is a
3     student who is covered under the provisions of the Fair
4     Labor Standards Act of 1938, as heretofore or hereafter
5     amended.
6         (7) For a motor carrier and with respect to whom the
7     U.S. Secretary of Transportation has the power to establish
8     qualifications and maximum hours of service under the
9     provisions of Title 49 U.S.C. or the State of Illinois
10     under Section 18b-105 (Title 92 of the Illinois
11     Administrative Code, Part 395 - Hours of Service of
12     Drivers) of the Illinois Vehicle Code.
13     The above exclusions from the term "employee" may be
14 further defined by regulations of the Director.
15     (e) "Occupation" means an industry, trade, business or
16 class of work in which employees are gainfully employed.
17     (f) "Gratuities" means voluntary monetary contributions to
18 an employee from a guest, patron or customer in connection with
19 services rendered.
20     (g) "Outside salesman" means an employee regularly engaged
21 in making sales or obtaining orders or contracts for services
22 where a major portion of such duties are performed away from
23 his employer's place of business.
24 (Source: P.A. 91-357, eff. 7-29-99.)
25     (820 ILCS 105/7)  (from Ch. 48, par. 1007)
26     Sec. 7. The Director or his authorized representatives have
27 the authority to:
28     (a) Investigate and gather data regarding the wages, hours
29 and other conditions and practices of employment in any
30 industry subject to this Act, and may enter and inspect such
31 places and such records (and make such transcriptions thereof)
32 at reasonable times during regular business hours, not
33 including lunch time at a restaurant, question such employees,



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1 and investigate such facts, conditions, practices or matters as
2 he may deem necessary or appropriate to determine whether any
3 person has violated any provision of this Act, or which may aid
4 in the enforcement of this Act.
5     (b) Require from any employer full and correct statements
6 and reports in writing, including sworn statements, at such
7 times as the Director may deem necessary, of the wages, hours,
8 names, addresses, and other information pertaining to his
9 employees as he may deem necessary for the enforcement of this
10 Act.
11     (c) Require by subpoena the attendance and testimony of
12 witnesses and the production of all books, records, and other
13 evidence relative to a matter under investigation or hearing.
14 The subpoena shall be signed and issued by the Director or his
15 or her authorized representative. If a person fails to comply
16 with any subpoena lawfully issued under this Section or a
17 witness refuses to produce evidence or testify to any matter
18 regarding which he or she may be lawfully interrogated, the
19 court shall, upon application of the Director or his or her
20 authorized representative, compel obedience by proceedings for
21 contempt.
22 (Source: P.A. 77-1451.)
23     (820 ILCS 105/12)  (from Ch. 48, par. 1012)
24     Sec. 12. (a) If any employee is paid by his employer less
25 than the wage to which he is entitled under the provisions of
26 this Act, the employee may recover in a civil action the amount
27 of any such underpayments together with costs and such
28 reasonable attorney's fees as may be allowed by the Court, and
29 damages of 2% of the amount of any such underpayments for each
30 month following the date of payment during which such
31 underpayments remain unpaid. Any any agreement between the
32 employee him and the his employer to work for less than such
33 wage is no defense to such action. At the request of the



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1 employee or on motion of the Director of Labor, the Department
2 of Labor may make an assignment of such wage claim in trust for
3 the assigning employee and may bring any legal action necessary
4 to collect such claim, and the employer shall be required to
5 pay the costs incurred in collecting such claim. Every such
6 action shall be brought within 3 years from the date of the
7 underpayment. Such employer shall be liable to the Department
8 of Labor for 20% of the total employer's underpayment and shall
9 be additionally liable to the employee for punitive damages in
10 the amount of 2% of the amount of any such underpayments for
11 each month following the date of payment during which such
12 underpayments remain unpaid. These penalties The Director may
13 promulgate rules for the collection of these penalties. The
14 amount of a penalty may be determined, and the penalty may be
15 assessed, through an administrative hearing. The penalty may be
16 recovered in a civil action brought by the Director of Labor in
17 any circuit court. The penalty shall be imposed in cases in
18 which an employer's conduct is proven by a preponderance of the
19 evidence to be willful. In any such action, the Director of
20 Labor shall be represented by the Attorney General.
21     (b) The Director is authorized to supervise the payment of
22 the unpaid minimum wages and the unpaid overtime compensation
23 owing to any employee or employees under Sections 4 and 4a of
24 this Act and may bring any legal action necessary to recover
25 the amount of the unpaid minimum wages and unpaid overtime
26 compensation and an equal additional amount as punitive
27 damages. Such employer shall also be liable to the Department
28 of Labor for 20% of the total employer's underpayment , and the
29 employer shall be required to pay the costs of any such legal
30 action. The action shall be brought within 5 years from the
31 date of the failure to pay the wages or compensation. Any sums
32 thus recovered by the Director on behalf of an employee
33 pursuant to this subsection shall be paid to the employee or
34 employees affected. Any sums which, more than one year after



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1 being thus recovered, the Director is unable to pay to an
2 employee shall be deposited into the General Revenue Fund.
3 (Source: P.A. 92-392, eff. 1-1-02.)
4     Section 10. The Illinois Wage Payment and Collection Act is
5 amended by changing Sections 2 and 14 as follows:
6     (820 ILCS 115/2)  (from Ch. 48, par. 39m-2)
7     Sec. 2. For all employees, other than separated employees,
8 "wages" shall be defined as any compensation owed an employee
9 by an employer pursuant to an employment contract or agreement
10 between the 2 parties, whether the amount is determined on a
11 time, task, piece, or any other basis of calculation. Payments
12 to separated employees shall be termed "final compensation" and
13 shall be defined as wages, salaries, earned commissions, earned
14 bonuses, and the monetary equivalent of earned vacation and
15 earned holidays, and any other compensation owed the employee
16 by the employer pursuant to an employment contract or agreement
17 between the 2 parties. Where an employer is legally committed
18 through a collective bargaining agreement or otherwise to make
19 contributions to an employee benefit, trust or fund on the
20 basis of a certain amount per hour, day, week or other period
21 of time, the amount due from the employer to such employee
22 benefit, trust, or fund shall be defined as "wage supplements",
23 subject to the wage collection provisions of this Act.
24     As used in this Act, the term "employer" shall include any
25 individual, partnership, association, corporation, limited
26 liability company, business trust, employment and labor
27 placement agencies where wage payments are made directly or
28 indirectly by the agency or business for work undertaken by
29 employees under hire to a third party pursuant to a contract
30 between the business or agency with the third party, or any
31 person or group of persons acting directly or indirectly in the
32 interest of an employer in relation to an employee, for which



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1 one or more persons is gainfully employed.
2     As used in this Act, the term "employee" shall include any
3 individual permitted to work by an employer in an occupation,
4 but shall not include any individual:
5         (1) who has been and will continue to be free from
6     control and direction over the performance of his work,
7     both under his contract of service with his employer and in
8     fact; and
9         (2) who performs work which is either outside the usual
10     course of business or is performed outside all of the
11     places of business of the employer unless the employer is
12     in the business of contracting with third parties for the
13     placement of employees; and
14         (3) who is in an independently established trade,
15     occupation, profession or business.
16 (Source: P.A. 89-364, eff. 8-18-95; 89-626, eff. 8-9-96.)
17     (820 ILCS 115/14)  (from Ch. 48, par. 39m-14)
18     Sec. 14. (a) Any employer or any agent of an employer, who,
19 being able to pay wages, final compensation, or wage
20 supplements and being under a duty to pay, wilfully refuses to
21 pay as provided in this Act, or falsely denies the amount or
22 validity thereof or that the same is due, with intent to secure
23 for himself or other person any underpayment of such
24 indebtedness or with intent to annoy, harass, oppress, hinder,
25 delay or defraud the person to whom such indebtedness is due,
26 upon conviction, is guilty of a Class C misdemeanor. Each day
27 during which any violation of this Act continues shall
28 constitute a separate and distinct offense.
29     (b) Any employer who has been demanded ordered by the
30 Director of Labor or ordered by the court to pay wages due an
31 employee and who shall fail to do so within 15 days after such
32 demand or order is entered shall be liable to pay a penalty of
33 1% per calendar day to the employee for each day of delay in



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1 paying such wages to the employee up to an amount equal to
2 twice the sum of unpaid wages due the employee.
3     (c) Any employer, or any agent of an employer, who
4 knowingly discharges or in any other manner knowingly
5 discriminates against any employee because that employee has
6 made a complaint to his employer, or to the Director of Labor
7 or his authorized representative, that he or she has not been
8 paid in accordance with the provisions of this Act, or because
9 that employee has caused to be instituted any proceeding under
10 or related to this Act, or because that employee has testified
11 or is about to testify in an investigation or proceeding under
12 this Act, is guilty, upon conviction, of a Class C misdemeanor.
13 (Source: P.A. 83-202.)
14     Section 99. Effective date. This Act takes effect upon
15 becoming law.".