Full Text of HB3530 102nd General Assembly
HB3530ham001 102ND GENERAL ASSEMBLY | Rep. Carol Ammons Filed: 1/26/2022
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| 1 | | AMENDMENT TO HOUSE BILL 3530
| 2 | | AMENDMENT NO. ______. Amend House Bill 3530 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 1. Short title. This Act may be cited as the | 5 | | Secure Jobs Act. | 6 | | Section 5. Definitions. In this Act: | 7 | | "Benefits" means the cash value of any employer-paid | 8 | | vacation leave, sick leave, medical insurance plan, disability | 9 | | insurance plan, life insurance plan, annuity, and pension | 10 | | benefit plan in effect on the date of discharge. | 11 | | "Casual employee" refers to work in or around a private | 12 | | home, that is irregular, uncertain, or incidental in nature | 13 | | and duration. | 14 | | "Constructive discharge" means the voluntary termination | 15 | | of employment by an employee because of a situation created by | 16 | | an act or omission of the employer that an objective, |
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| 1 | | reasonable person would find so intolerable that voluntary | 2 | | termination is the only reasonable alternative. | 3 | | "Day or temporary laborer", "day and temporary labor | 4 | | services agency", and "third party client" have the meaning | 5 | | ascribed to those terms under Section 5 of the Day and | 6 | | Temporary Labor Services Act. | 7 | | "Department" means the Department of Labor. | 8 | | "Discharge" means any cessation of employment, including | 9 | | constructive discharge, indefinite suspension, layoff, or | 10 | | reduction in hours. | 11 | | "Egregious misconduct" means deliberate or grossly | 12 | | negligent conduct that: | 13 | | (1) endangers the safety or well-being of the | 14 | | individual, co-workers, customers, or other persons, | 15 | | including discrimination against, harassment of, or | 16 | | causing physical or emotional harm to co-workers, | 17 | | customers, or other persons; | 18 | | (2) causes serious damage to the employer's or | 19 | | customers' property or business interests, including, but | 20 | | not limited to, theft; or | 21 | | (3) involves grossly inappropriate behavior such as | 22 | | working under the influence of intoxicants or controlled | 23 | | substances. | 24 | | "Electronic monitoring" means the collection of | 25 | | information concerning worker activities, communications, | 26 | | actions, biometric information, as that term is defined in |
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| 1 | | Section 10 of the Biometric Information Privacy Act, or | 2 | | behaviors by electronic means including, but not limited to, | 3 | | video or audio surveillance, electronic work pace tracking, | 4 | | and other means. | 5 | | "Employ" means to suffer or permit to work. | 6 | | "Employee" has the meaning given that term in Section 2 of | 7 | | the Illinois Wage Payment and Collection Act, and also | 8 | | includes a "day or temporary laborer" but does not include a | 9 | | casual employee who performs work in or around a private home | 10 | | that is irregular in nature. A person may be an employee of 2 | 11 | | or more employers at the same time. "Employee" does not | 12 | | include supervisors or persons who hold elective office. | 13 | | "Employer" has the meaning given that term in Section 2 of | 14 | | the Illinois Wage Payment and Collection Act, and also | 15 | | includes a "third party client" and a "day and temporary labor | 16 | | services agency". More than one entity may be the employer of | 17 | | an employee, including in circumstances where one entity | 18 | | controls, is controlled by, or is under common control with | 19 | | another employer, or where one entity exerts control over the | 20 | | operations of another employer. An employer-employee | 21 | | relationship is presumed to exist when an individual performs | 22 | | labor or services for an employer. The party asserting that an | 23 | | individual is not an employee must establish by a | 24 | | preponderance of the evidence that the individual is an | 25 | | independent contractor. | 26 | | "Just cause" means: |
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| 1 | | (1) an employee's failure to satisfactorily perform | 2 | | his or her job duties or to comply with employer policies; | 3 | | (2) an employee's egregious misconduct; or | 4 | | (3) bona fide economic reasons. | 5 | | "Progressive discipline" means an employer's disciplinary | 6 | | system that provides a graduated range of reasonable responses | 7 | | to an employee's failure to satisfactorily perform his or her | 8 | | job duties or comply with employer policies, with the | 9 | | disciplinary measures ranging from mild to severe, depending | 10 | | on the frequency and degree of the failure, and the employee | 11 | | being afforded a reasonable period of time to address | 12 | | concerns. | 13 | | "Reduction in hours" means a reduction in an employee's | 14 | | hours of work totaling at least 15% of the employee's average | 15 | | weekly work hours. | 16 | | "Relator" means a current or former employee, contractor, | 17 | | subcontractor, or employee of such a contractor or | 18 | | subcontractor of an alleged violator of this Act, regardless | 19 | | of whether that person has received full or partial relief, | 20 | | who seeks relief through a public enforcement action brought | 21 | | under this Act. | 22 | | "Representative organization" means a nonprofit or labor | 23 | | organization selected by a relator to initiate a public | 24 | | enforcement action on the relator's behalf. | 25 | | "Severance pay" has the meaning of that term as described | 26 | | in Section 50. |
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| 1 | | "Short-term position" means employment pursuant to a | 2 | | written contract that specifies that the position is to end | 3 | | after a specified period of time, not to exceed 6 months, where | 4 | | the employer can show that the work or need in question is | 5 | | expected to end, such as in the case of a seasonal job or a job | 6 | | to perform a specific project. | 7 | | Section 10. Prohibition against discharge without just | 8 | | cause. | 9 | | (a) An employer shall not discharge an employee without | 10 | | just cause. Just cause may not be based on off-duty conduct | 11 | | unless there is a demonstrable and material nexus between the | 12 | | conduct and the employee's job performance or the employer's | 13 | | legitimate business interests. | 14 | | (b) The employer shall within 3 days provide a written | 15 | | explanation to any discharged employee of the specific reasons | 16 | | for the discharge. In determining whether an employer had just | 17 | | cause for discharge, a fact finder may not consider any | 18 | | reasons not included in such written explanation. Where an | 19 | | employer fails to provide a written explanation to a | 20 | | discharged employee, the discharge shall not be deemed to be | 21 | | based on just cause. All information and judgments that the | 22 | | employer considered in making the determination shall be made | 23 | | available to the employee or his or her representative. | 24 | | (c) The employer shall bear the burden of proving just | 25 | | cause including, if applicable, that the employer followed |
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| 1 | | progressive discipline, by a preponderance of non-hearsay | 2 | | evidence in any proceeding brought pursuant to this Act. | 3 | | Section 15. Factors to be considered. In determining | 4 | | whether an employee has been discharged for just cause for | 5 | | failure to satisfactorily perform job duties or for failure to | 6 | | comply with employer policies, the fact finder shall consider, | 7 | | in addition to any other relevant factors, whether: | 8 | | (1) the employee knew or should have known of his or | 9 | | her job duties or of the employer's policy; | 10 | | (2) the employer provided relevant and adequate | 11 | | training to the employee; | 12 | | (3) the employer's policy was reasonable and applied | 13 | | consistently; | 14 | | (4) the employer undertook a thorough, fair and | 15 | | objective investigation; and | 16 | | (5) the employer used progressive discipline. | 17 | | Section 20. Discharge for failure to satisfactorily | 18 | | perform job duties. A discharge for failure to satisfactorily | 19 | | perform job duties or comply with employer policies shall not | 20 | | be deemed to be based on just cause unless the employer has | 21 | | used progressive discipline. Provided, further, that the time | 22 | | period between a first warning or discipline and termination | 23 | | shall be not less than 15 days, and the employer may not rely | 24 | | on a warning or discipline issued more than one year in the |
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| 1 | | past to justify a discharge. | 2 | | Section 25. Progressive discipline. Under progressive | 3 | | discipline, an employer may discharge an employee immediately | 4 | | for egregious misconduct. A finding of misconduct for purposes | 5 | | of unemployment insurance eligibility shall not necessarily | 6 | | constitute serious misconduct for purposes of this Act. An | 7 | | employee discharged for egregious misconduct shall not be | 8 | | entitled to severance pay.
| 9 | | Section 30. Discharge based on bona fide economic reasons. | 10 | | A discharge shall not be deemed to be based on bona fide | 11 | | economic reasons unless the following conditions are met: | 12 | | (1) the discharge results from a reduction in | 13 | | production, sales, services, profit, or funding of the | 14 | | employer, or technological or organizational changes in | 15 | | the employer's operations that necessitate full or partial | 16 | | reduction of the employer's operations; | 17 | | (2) the employees or groups of employees to be | 18 | | discharged are identified using broadly applicable | 19 | | criteria that do not appear to target individuals; and | 20 | | (3) the bona fide economic reasons justifying the | 21 | | discharge were specified in writing to the employee at the | 22 | | time of the discharge and are supported by the employer's | 23 | | records. | 24 | | A discharge shall be presumed not to be based on bona fide |
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| 1 | | economic reasons where the employer hired or hires another | 2 | | employee to perform substantially the same work within 90 days | 3 | | before or after the discharge. Elimination of staff redundancy | 4 | | created by a merger or acquisition shall not be deemed a bona | 5 | | fide economic reason for discharge of employees. | 6 | | Section 35. Employee actions that do not constitute just | 7 | | cause for termination. In no event shall any of the following | 8 | | actions by an employee constitute just cause for termination: | 9 | | (1) an employee's communication about workplace | 10 | | practices or policies, including, but not limited to, | 11 | | health or safety practices or hazards related to COVID-19, | 12 | | to any person, including to an employer, an employer's | 13 | | agent, other employees, a government agency, or the | 14 | | public, including through print, online, social media, or | 15 | | any other media; or | 16 | | (2) an employee's refusal to work under conditions | 17 | | that the employee reasonably believes would expose him or | 18 | | her, other employees, or the public to an unreasonable | 19 | | health or safety risk, including, but not limited to, risk | 20 | | of illness or exposure to COVID-19. | 21 | | An employer shall not retaliate against any employee or | 22 | | other person for such conduct. Notwithstanding any other | 23 | | provision of law, such conduct shall constitute protected | 24 | | conduct and may not be contractually prohibited, or subject to | 25 | | civil or criminal sanction or liability. |
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| 1 | | Section 40. Employer assessments. An employer must | 2 | | conduct its own assessment of an employee, and may not rely on | 3 | | data gathered through electronic monitoring in discharging or | 4 | | disciplining an employee. Such employment decisions must be | 5 | | made based on human-provided information sources such as | 6 | | supervisors' assessments and documentation, or consulting | 7 | | co-workers. An employer must disclose in advance to employees | 8 | | any electronic monitoring or data collection at a workplace, | 9 | | disclose the purposes for which the data will be used, and | 10 | | provide employees meaningful opportunities to challenge any | 11 | | electronic monitoring or data systems. However, data gathered | 12 | | through electronic monitoring may be used in the following | 13 | | circumstances: for non-employment-related purposes; for | 14 | | discharging or disciplining an employee in cases of egregious | 15 | | misconduct or involving threats to the health or safety of | 16 | | other persons; or where required by State or federal law. | 17 | | Provided further, information on employee tardiness or | 18 | | absenteeism from electronic time-keeping systems that are used | 19 | | to measure employee work shifts for payroll purposes may be | 20 | | considered for purposes of employee discharge and discipline. | 21 | | Section 45. Discharge; short-term position. Discharge at | 22 | | the end of a short-term position shall not require a showing of | 23 | | just cause and shall not entitle an employee to severance pay. | 24 | | A position shall not be deemed to be a short-term position |
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| 1 | | where the employer hires another employee, including another | 2 | | employee who is a day or temporary laborer, to perform | 3 | | substantially the same work within 90 days before or after the | 4 | | discharge. However, discharge prior to the end of the term of a | 5 | | short-term position shall require a showing of just cause and | 6 | | shall entitle the employee to severance pay. | 7 | | Section 50. Severance pay. An employee shall accrue an | 8 | | entitlement to one hour of severance pay for every 12.5 hours | 9 | | worked during his or her first 2,080 hours of employment, and | 10 | | for every 50 hours worked thereafter. Within 14 days of | 11 | | discharge, the employer shall pay the employee his or her | 12 | | accrued severance pay, calculated based on the number of hours | 13 | | accrued multiplied by the employee's rate of pay upon | 14 | | discharge. However, an employee who is discharged at the end | 15 | | of a short-term position shall not be entitled to severance | 16 | | pay. Severance pay shall be exclusive of final compensation | 17 | | due an employee upon separation, as provided for under Section | 18 | | 2 of the Illinois Wage Payment and Collection Act. For | 19 | | purposes of determining an employee's hours of employment, | 20 | | tenure, or seniority, multiple periods worked for the | 21 | | employer, including through a day and temporary services | 22 | | agency, and any time worked for a predecessor employer shall | 23 | | be aggregated. | 24 | | Section 55. Employment through day and temporary labor |
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| 1 | | services agencies. | 2 | | (a) Where an employee is a day or temporary laborer who has | 3 | | worked 100 hours or more for a single third party client, the | 4 | | third party client shall be deemed his or her employer, shall | 5 | | become subject to the protections of this Act as regards the | 6 | | employee, and may not discharge the employee without just | 7 | | cause. However, if the employee's employment with the third | 8 | | party client qualifies as a short-term position, then a | 9 | | showing of just cause for discharge at the end of the | 10 | | position's defined term shall not be required, nor shall | 11 | | payment of severance pay at the end of the position's defined | 12 | | term be required. In such a case the third party client must | 13 | | show that all of the criteria and conditions for a short-term | 14 | | position in Section 45 and in the definition of short-term | 15 | | position are satisfied in order for the employment of the day | 16 | | or temporary laborer to qualify as a short-term position. | 17 | | (b) Where an employee is a day or temporary laborer who has | 18 | | not worked 100 hours or more for a single third party client | 19 | | but has worked 100 hours or more for a temporary labor services | 20 | | agency, aggregating all hours worked for multiple third party | 21 | | clients, the employee shall become subject to more limited | 22 | | protection under the Act. Such an employee shall be given | 23 | | priority by the temporary labor services agency for future | 24 | | work assignments over employees who have not worked 100 hours | 25 | | or more for the agency. When such an employee is discharged by | 26 | | the day and temporary labor services agency, the employee |
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| 1 | | shall be entitled to payment of severance pay, as determined | 2 | | under Section 50. Such an employee shall be deemed discharged | 3 | | if he or she receives no work assignment offers from the | 4 | | temporary labor services agency for a period of 21 days or | 5 | | more. However, if such an employee's employment with the | 6 | | temporary labor services agency ends in order for the employee | 7 | | to commence direct employment with a third party client, then | 8 | | no payment of severance pay shall be required. | 9 | | (c) Employers that are third party clients and employers | 10 | | that are day and temporary labor services agencies shall be | 11 | | jointly and severally responsible with one another for | 12 | | compliance with the Act's requirements. | 13 | | Section 60. Collective bargaining agreement exemption. The | 14 | | requirements of this Act shall not apply to employees who are | 15 | | covered by a valid collective bargaining agreement. | 16 | | Section 65. Retaliation prohibited. No employer or any | 17 | | other person shall threaten, intimidate, discipline, | 18 | | discharge, demote, suspend, or harass an employee, reduce the | 19 | | hours or pay of an employee, inform another employer that an | 20 | | employee has alleged that the employer violated this Act or | 21 | | any other law, discriminate against an employee, or take any | 22 | | other adverse action that penalizes an employee for, or is | 23 | | reasonably likely to deter an employee from, exercising or | 24 | | attempting to exercise any right protected under this Act or |
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| 1 | | any other law, including informing other employees or persons | 2 | | of their rights under this Act or any other law, assisting in | 3 | | any way with any complaint or investigation involving this | 4 | | Act, including another workers' case, or sharing information | 5 | | about workplace issues with other employees or the public, | 6 | | including on social media. Threats or any other adverse action | 7 | | related to perceived immigration status or work authorization | 8 | | shall constitute threats or adverse actions as those terms are | 9 | | used in this Section. An employee need not explicitly refer to | 10 | | this Act or any other law or the rights enumerated herein to be | 11 | | protected from retaliation. The protections afforded by this | 12 | | Section shall apply to any person who mistakenly but in good | 13 | | faith alleges violations of this Act. | 14 | | Section 70. Protection of former employees from | 15 | | blacklisting. An employer shall not prevent or attempt to | 16 | | prevent, by word or writing of any kind, a former employee from | 17 | | obtaining employment with any other employer. An employer is | 18 | | not prohibited from providing by word or writing to any other | 19 | | employer to whom the discharged employee has applied for | 20 | | employment a truthful statement of the reason for discharge. | 21 | | Section 75. Notice and posting of rights. | 22 | | (a) The Department shall publish and make available | 23 | | notices informing employees of their rights protected under | 24 | | this Act. Employers shall post such notices in a conspicuous |
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| 1 | | location in the workplace or at any job site, and shall give a | 2 | | notice to each employee at the time of hiring and on an annual | 3 | | basis. The notices shall be made available in a downloadable | 4 | | format on the Department's website in English, Spanish, | 5 | | Polish, Mandarin, and Cantonese. | 6 | | (b) Every employer shall conspicuously post at any | 7 | | workplace or job site where any employee works the notices | 8 | | described in subsection (a) that apply to the particular | 9 | | workplace or job site. The notices shall be in English and any | 10 | | language spoken as a primary language by at least 5% of the | 11 | | employees at that location if the Department has made the | 12 | | notice available in that language. | 13 | | Section 80. Recordkeeping. | 14 | | (a) Employers shall retain records documenting their | 15 | | compliance with the applicable requirements of this Act. In | 16 | | addition, day and temporary labor services agencies shall | 17 | | maintain records of each individual day or temporary laborer's | 18 | | start date with such day and temporary labor services agency | 19 | | and the dates on which that laborer was placed with a third | 20 | | party client. Employers shall retain such records for a period | 21 | | of 3 years and shall allow the Department access to such | 22 | | records and other information, in accordance with applicable | 23 | | law and with appropriate notice, in furtherance of an | 24 | | investigation conducted in accordance with this Act.
| 25 | | (b) In addition, employers shall report annually to the |
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| 1 | | Department, and any person who requests a copy of: | 2 | | (1) the employer's total employment each year broken | 3 | | down by full-time employment (defined as at least 30 hours | 4 | | per week), part-time employment (defined as less than 30 | 5 | | hours per week), short-term employment, and employment | 6 | | through a temp or staffing agency; and | 7 | | (2) the employer's total number of separations each | 8 | | year broken down by whether the separation was a discharge | 9 | | for cause, a discharge for bona fide economic reasons, a | 10 | | separation as a result of the end of a short-term | 11 | | position, an employee resignation, or an employee | 12 | | retirement.
| 13 | | Within 14 days of a request for such records, employers | 14 | | shall make requested records available for review and copying.
| 15 | | (c) An employer's failure to maintain, retain, or produce | 16 | | a record or other information required to be maintained by | 17 | | this Section relevant to a material fact alleged by an | 18 | | employee in a complaint brought pursuant to this Section or | 19 | | requested by the Department pursuant to an investigation, | 20 | | creates a rebuttable presumption that such fact is true. | 21 | | Section 85. Administrative implementation and enforcement. | 22 | | (a) The Department shall administer and enforce the | 23 | | provisions of this Act and shall, within 120 days after its | 24 | | effective date, adopt rules necessary to administer and | 25 | | enforce the provisions of this Act. The rules shall include |
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| 1 | | the procedures for investigations and hearings under this Act. | 2 | | The adoption, amendment, or rescission of rules shall be in | 3 | | conformity with the requirements of the Illinois | 4 | | Administrative Procedure Act. | 5 | | (b) An aggrieved employee or his or her duly authorized
| 6 | | representative may file a complaint with the Department
| 7 | | regarding violations by an employer of this Act or of any
| 8 | | implementing rules. Upon receiving a complaint or on its own
| 9 | | initiative, the Department shall investigate potential
| 10 | | violations, make a determination whether a violation has
| 11 | | occurred, and take appropriate action to enforce the
| 12 | | provisions of this Act and any implementing rules. | 13 | | (c) If an employer is found by the Department to have
| 14 | | violated this Act or any rules adopted under this Act, the
| 15 | | Department shall order the following, in addition to any other
| 16 | | remedy provided by law: | 17 | | (1) In the case of unlawful discharge, retaliation,
| 18 | | blacklisting, or unlawful electronic monitoring, actual | 19 | | and liquidated damages payable to each aggrieved worker | 20 | | equal to, at the aggrieved party's election, $10,000 or 3 | 21 | | times the actual damages including, but not limited to, | 22 | | unpaid wages, benefits, other remuneration owed, and | 23 | | compensation for emotional pain, suffering, inconvenience, | 24 | | and mental anguish, unless an adjudicator finds that | 25 | | mitigating circumstances are present, in which case the | 26 | | adjudicator may order that the preceding liquidated |
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| 1 | | damages amount be reduced as circumstances make | 2 | | appropriate, as well as reinstatement, restoration of | 3 | | hours, other injunctive relief (including to rectify | 4 | | conditions that led to constructive discharge), punitive | 5 | | damages, and such other remedies as may be appropriate. | 6 | | (2) In the case of discharge where severance pay was | 7 | | not provided, payment of severance pay together with an | 8 | | additional 2 times that amount as liquidated damages, and | 9 | | such other remedies as may be appropriate including | 10 | | punitive damages. | 11 | | (3) In the case of failure to provide a timely written | 12 | | explanation for a discharge, injunctive relief and | 13 | | liquidated damages in an amount equal to $5,000, unless an | 14 | | adjudicator finds that mitigating circumstances are | 15 | | present, in which case the adjudicator may order that the | 16 | | preceding liquidated damage amount be reduced as | 17 | | circumstances make appropriate, and such other remedies as | 18 | | may be appropriate, including punitive damages. | 19 | | (4) Payment of a further sum to the Department as a | 20 | | civil penalty in an amount of $10,000 for unlawful | 21 | | discharge, retaliation, or blacklisting in violation of | 22 | | this Act, or unlawful electronic monitoring, in an amount | 23 | | of $5,000 for or failure to provide a timely written | 24 | | explanation for a discharge, or in an amount of $1,000 for | 25 | | other violations of this Act, including the Act's | 26 | | recordkeeping requirements or failure to produce records |
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| 1 | | requested in an investigation. However, if an adjudicator | 2 | | finds that mitigating circumstances are present, the | 3 | | adjudicator may order that the preceding civil penalty | 4 | | amounts be reduced as circumstances make appropriate. The | 5 | | civil penalties imposed in accordance with this Section | 6 | | shall be imposed on a per employee and per instance basis | 7 | | for each violation. | 8 | | (5) Payment of the complainant's reasonable attorneys' | 9 | | fees, expert fees, and other costs. For the purposes of | 10 | | this provision, a complainant shall be deemed to have | 11 | | prevailed and entitled to an award of fees and costs if | 12 | | commencement of a complaint has acted as a catalyst to | 13 | | effect policy change on the part of the respondent, | 14 | | regardless of whether that change has been implemented | 15 | | voluntarily, as a result of a settlement, or as a result of | 16 | | a judgment in such party's favor. | 17 | | (6) In assessing an appropriate remedy, due | 18 | | consideration shall be given to the gravity of the | 19 | | violation, the history of previous violations, and the | 20 | | good faith of the employer. | 21 | | (7) All amounts specified in this Act shall be updated | 22 | | annually to keep pace with the rising cost of living by | 23 | | increasing each amount in proportion to the increase over | 24 | | the most recent 12-month period for which data are | 25 | | available in the value of the Consumer Price Index for All | 26 | | Urban Consumers (CPI-U), as calculated by the Bureau of |
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| 1 | | Labor Statistics of the United States Department of Labor, | 2 | | and rounding the new amounts to the nearest multiple of | 3 | | $5. Such increased amounts shall be announced by October 1 | 4 | | of each year, and shall take effect on January 1. | 5 | | (8) Either party may bring an administrative appeal to | 6 | | enforce, vacate, or modify the order, determination, or | 7 | | other disposition.
| 8 | | (9) No procedure or remedy set forth in this Section | 9 | | is exclusive or a prerequisite for asserting a claim for | 10 | | relief to enforce any rights under this Act in a court of | 11 | | law. | 12 | | (10) Any employer who has been ordered by the | 13 | | Department or ordered by a court to pay unpaid backpay, | 14 | | front pay and benefits, severance pay, liquidated or | 15 | | punitive damages, or civil penalties, and who fails to | 16 | | seek timely review of such a demand or order as provided | 17 | | for under this Act and who fails to comply within 15 | 18 | | calendar days after such demand or within 35 days of an | 19 | | administrative or court order is entered shall also be | 20 | | liable to pay a penalty to the Department of 20% of the | 21 | | amount found owing and a penalty to the employee of 1% per | 22 | | calendar day of the amount found owing for each day of | 23 | | delay in paying such wages to the employee. All moneys | 24 | | recovered as fees and civil penalties under this Act, | 25 | | except those owing to the affected employee, shall be | 26 | | deposited into the Wrongful Discharge Enforcement Fund, a |
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| 1 | | special fund which is hereby created in the State | 2 | | treasury. Moneys in the Fund may be used only for | 3 | | enforcement of this Act.
| 4 | | Section 90. Civil action. Except as otherwise provided by | 5 | | law, any person claiming to be aggrieved by an employer's | 6 | | violation of this Act has a cause of action in any court and, | 7 | | upon prevailing, shall be awarded the relief specified in | 8 | | Section 85 and, if the court finds in favor of the plaintiff, | 9 | | it shall award such prevailing party, in addition to other | 10 | | relief, his or her reasonable attorneys' fees, expert fees, | 11 | | and other costs. As used in this Section, "prevailing" party | 12 | | includes a party whose commencement of litigation has acted as | 13 | | a catalyst to effect policy change on the part of the | 14 | | defendant, regardless of whether that change has been | 15 | | implemented voluntarily, as a result of a settlement, or as a | 16 | | result of a judgment in such party's favor. Penalties and fees | 17 | | under this Act may be assessed by the Department and recovered | 18 | | in a civil action brought by the Department in any court or in | 19 | | any administrative adjudicative proceeding under this Act. In | 20 | | any such civil action or administrative adjudicative | 21 | | proceeding under this Act, the Department shall be represented | 22 | | by the Attorney General. | 23 | | Section 95. Public enforcement action. A relator or | 24 | | representative organization may initiate a public enforcement |
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| 1 | | action in any court to pursue civil penalties, injunctive | 2 | | relief, and declaratory relief, as specified in Section 85, on | 3 | | behalf of the Department, for a violation of the provisions of | 4 | | this Act affecting the relator and other current or former | 5 | | employees, according to the following procedures: | 6 | | (a) The relator or representative organization shall | 7 | | give written notice to the Department of the specific | 8 | | provisions of this Act alleged to have been violated, | 9 | | including the facts and theories to support the alleged | 10 | | violation. The notice shall be given in such a manner as | 11 | | the Department may prescribe by rule. | 12 | | (b) If the Department intends to investigate the | 13 | | alleged violation, it shall notify the relator or | 14 | | representative organization of its decision within 65 | 15 | | calendar days of the postmark date of the notice. Within | 16 | | 60 calendar days of that decision, the Department may | 17 | | investigate the alleged violation and take any enforcement | 18 | | action authorized by law. If the Department determines | 19 | | that additional time is necessary to complete the | 20 | | investigation, it may extend the time by not more than 60 | 21 | | additional calendar days and shall notify the relator or | 22 | | representative organization of the extension. | 23 | | (c) Notwithstanding any other provision of law, a | 24 | | public enforcement action brought under this Act must be | 25 | | commenced within the limitations period specified in | 26 | | Section 100. The statute of limitations for bringing a |
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| 1 | | public enforcement action under this Act shall be tolled | 2 | | from the date a relator or representative organization | 3 | | files a notice under this Section with the Department, or | 4 | | the Department commences an investigation, whichever is | 5 | | earlier. | 6 | | (d) The relator or representative organization may | 7 | | commence a civil action under this Act if the Department | 8 | | determines that no enforcement action will be taken, or if | 9 | | no enforcement action is taken by the Department within | 10 | | the time limits prescribed. | 11 | | (e) The Department may intervene in an action brought | 12 | | under this Act and proceed with any and all claims in the | 13 | | action as of right within 30 days after the filing of the | 14 | | action, or for good cause, as determined by the court, at | 15 | | any time after the 30-day period after the filing of the | 16 | | action. | 17 | | (f) Civil penalties recovered in a public enforcement | 18 | | action brought under this Act shall be distributed as | 19 | | follows:
| 20 | | (1) If the Department does not intervene in the | 21 | | action, 60% to the Department, and 40% to the relator | 22 | | or representative organization, to be distributed to | 23 | | the employees affected by the violation, including a | 24 | | service award that reflects the burdens and risks | 25 | | assumed by the employee or representative organization | 26 | | in prosecuting the action. |
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| 1 | | (2) If the Department does intervene in the | 2 | | action, 70% to the Department, and 30% to the relator | 3 | | or representative organization, the latter of which | 4 | | shall be distributed to the employees affected by the | 5 | | violation, including a service award that reflects the | 6 | | burdens and risks assumed by the employee or | 7 | | representative organization in prosecuting the action. | 8 | | (3) The share of penalties recovered for the | 9 | | Department under this Act shall be used solely to | 10 | | support the Department's education and enforcement | 11 | | activities relating to this Act, with approximately | 12 | | 25% of these penalties reserved for grants to | 13 | | community organizations for outreach and education | 14 | | about employee rights under this Act. | 15 | | (g) In any public enforcement action commenced under | 16 | | this Act, the court shall allow a prevailing relator or | 17 | | representative organization to recover all reasonable | 18 | | attorneys' fees, expert fees, and other costs. For the | 19 | | purposes of this provision, a "prevailing" relator or | 20 | | representative organization includes a relator or | 21 | | representative organization whose commencement of | 22 | | litigation has acted as a catalyst to effect policy change | 23 | | on the part of the defendant, regardless of whether that | 24 | | change has been implemented voluntarily, as a result of a | 25 | | settlement, or as a result of a judgment in such relator or | 26 | | representative organization's favor. |
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| 1 | | (h) No public enforcement action brought under this | 2 | | Act shall be required to meet class action certification | 3 | | requirements under Part 8 of Article II of the Code of | 4 | | Civil Procedure or Rule 23(a) of the Federal Rules of | 5 | | Civil Procedure. | 6 | | (i) The relator or representative organization may not | 7 | | recover compensatory damages or back pay, or seek | 8 | | reinstatement, in a public enforcement action. But the | 9 | | filing of a public enforcement action does not preclude an | 10 | | employee from pursuing these remedies in another forum. | 11 | | (j) The right to bring a public enforcement action | 12 | | under this Act shall not be impaired by any private | 13 | | contract.
| 14 | | Section 100. Limitation of actions. Notwithstanding any | 15 | | other provision of law, an action under this Act must be filed | 16 | | within 3 years after the complainant knew or should have known | 17 | | of the alleged violation. However, this statute of limitations | 18 | | period shall be tolled for the duration of any state of | 19 | | emergency declared by the State or by any city or county in | 20 | | which the action is commenced. | 21 | | Section 105. Non-preemption. This Act does not preempt, | 22 | | limit, or otherwise affect the authority of any other unit of | 23 | | government to adopt laws, rules, requirements, policies, or | 24 | | standards providing additional employment or workplace |
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| 1 | | protections. | 2 | | Section 110. Violations. An employer that violates this | 3 | | Act is guilty of a Class A misdemeanor. | 4 | | Section 115. Severability. The provisions of this Act are | 5 | | severable under Section 1.31 of the Statute on Statutes. | 6 | | Section 120. The State Finance Act is amended by adding | 7 | | Section 5.970 as follows: | 8 | | (30 ILCS 105/5.970 new) | 9 | | Sec. 5.970. The Wrongful Discharge Enforcement Fund. | 10 | | Section 999. Effective date. This Act takes effect January | 11 | | 1, 2023.".
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