Full Text of SB0837 102nd General Assembly
SB0837sam001 102ND GENERAL ASSEMBLY | Sen. Cristina Castro Filed: 4/9/2021
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| 1 | | AMENDMENT TO SENATE BILL 837
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 837 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 1. Short title. This Act may be cited as the Fair | 5 | | Play in Employment Act. | 6 | | Section 5. Findings and intent. The General Assembly finds | 7 | | and declares the following: | 8 | | (1) Illinois workers are experiencing dangerous levels | 9 | | of employee misclassification. Companies that misclassify | 10 | | workers as independent contractors deny the workers of | 11 | | Illinois basic labor standards, including wage and hour | 12 | | protections, health and safety standards, workers' | 13 | | compensation, retirement security, and unemployment | 14 | | insurance. Misclassification robs workers of their | 15 | | livelihood and basic protections, while padding the | 16 | | pockets of violators and draining public funds. |
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| 1 | | (2) Misclassification also results in workers and | 2 | | their families being excluded from critical paid sick | 3 | | time, paid family and medical leave, and health insurance | 4 | | benefits. | 5 | | (3) The misclassification of workers as independent | 6 | | contractors has been a significant factor in the erosion | 7 | | of the middle class and the rise in income inequality. | 8 | | (4) The misclassification of workers as independent | 9 | | contractors allows unscrupulous employers and hiring | 10 | | entities to gain an unfair advantage over employers that | 11 | | obey the law. It also allows such employers to shift the | 12 | | cost of providing benefits such as a safe workplace, | 13 | | retirement security, and unemployment insurance to | 14 | | governmental bodies and, ultimately, the taxpayers. | 15 | | (5) It is the intent of the General Assembly in | 16 | | enacting this Act to ensure that workers who are currently | 17 | | exploited by being misclassified as independent | 18 | | contractors instead of recognized as employees have the | 19 | | basic rights and protections they deserve under the law, | 20 | | including a minimum wage and overtime pay, workers' | 21 | | compensation if they are injured on the job, unemployment | 22 | | insurance, and any other benefits and protections the | 23 | | General Assembly provides to workers recognized as | 24 | | employees. This Act restores these important protections | 25 | | to workers who have been denied these basic workplace | 26 | | rights that all workers are entitled to under the law. It |
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| 1 | | is also the intent of the General Assembly to ensure that | 2 | | companies that rely on Illinois workers to operate their | 3 | | businesses pay their fair share into the Illinois | 4 | | unemployment insurance program so that their workers, and | 5 | | all Illinois workers, can count on a solvent fund during | 6 | | economic downturns. | 7 | | (6) It is further the intent of the General Assembly | 8 | | to establish a clear standard for determining the | 9 | | classification of a worker in order to provide stability | 10 | | and certainty to both workers and Illinois employers. | 11 | | (7) Therefore, the government has an obligation to | 12 | | curb employee misclassification throughout the economy, | 13 | | take proactive measures to enforce long-standing | 14 | | employment laws that establish basic protections for | 15 | | Illinois' workers through the enactment of this Act, to | 16 | | empower workers to assert their rights under the law, and | 17 | | to establish a level playing field for employers who obey | 18 | | the employment laws. | 19 | | (8) Nothing in this Act is intended to diminish the | 20 | | flexibility of employees to work part-time or intermittent | 21 | | schedules or to work for multiple employers. | 22 | | (9) Nothing in this Act shall be construed to wholly | 23 | | eliminate the independent contractor status
where the | 24 | | classification is in accordance with this Act. | 25 | | Section 10. Definitions. In this Act: |
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| 1 | | "Business service provider" means a business entity that | 2 | | is not a hiring entity that is formed as a sole proprietorship, | 3 | | partnership, limited liability company, limited liability | 4 | | partnership, or corporation. | 5 | | "Contracting business" means a hiring entity or business | 6 | | service provider that has contracted with another business | 7 | | service provider. | 8 | | "Department" means the Department of Labor. | 9 | | "Domestic work" means housekeeping, house cleaning, home | 10 | | management, nanny services
including childcare and child | 11 | | monitoring, caregiving, personal care or home health services | 12 | | for
elderly persons or persons with an illness, injury, or | 13 | | disability who require assistance in caring
for themselves, | 14 | | laundering, cooking, companion services, chauffeuring, or | 15 | | other household
services for members of households or their | 16 | | guests in or about a private home or residence or
any other | 17 | | location where domestic work is performed any workweek on a | 18 | | regular basis. | 19 | | "Domestic worker" means any individual who performs | 20 | | domestic work. | 21 | | "Family member" means a child, spouse, parent, child or | 22 | | parent of an employee's spouse, sibling, grandparent, | 23 | | grandchild, or any other individual related by blood or whose | 24 | | close association with the employee is the equivalent of a | 25 | | family relationship as determined by the employee. | 26 | | "Employer" means any individual or entity that employs |
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| 1 | | individuals, including domestic
workers, deemed employees | 2 | | under this Act. "Employer" includes any individual or entity | 3 | | acting directly or indirectly in the interest of an employer | 4 | | with the authority, whether reserved or exercised, over the | 5 | | workers' wages, hours, and other terms and conditions of | 6 | | employment. "Employer" may include any such entity that | 7 | | contracts for services or pays for the services of a worker | 8 | | through an oral or written contract or application software | 9 | | designed to run on smartphones and other mobile devices or | 10 | | software designed to run inside a web browser. "Employer" also | 11 | | includes the State of Illinois and all other governmental | 12 | | entities. "Employer" excludes employers who are subject to the | 13 | | Employee Classification Act and further excludes the
federal | 14 | | government. | 15 | | "Hiring entity" means any individual, partnership, | 16 | | association, corporation, business trust, or any entity, | 17 | | person, or group of persons that pays a wage or pays for the | 18 | | services of individuals or domestic workers, including | 19 | | employers. "Hiring entity" also means any such entity or | 20 | | person acting directly or indirectly in the interest of a | 21 | | hiring entity in relation to the individual. "Hiring entity" | 22 | | also includes the State of Illinois and other governmental | 23 | | entities except for the federal government. | 24 | | "Interested party" means a person or organization with an | 25 | | interest in compliance with this Act. | 26 | | "Professional services" means any of the following: |
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| 1 | | (1) professional services provided by writers; | 2 | | (2) professional services provided by graphic | 3 | | designers; | 4 | | (3) professional services provided by webpage and | 5 | | digital designers; | 6 | | (4) professional services provided by animators, | 7 | | illustrators, industrial product designers, interior | 8 | | designers, or fashion designers; | 9 | | (5) professional services provided by fine artists; | 10 | | (6) professional services provided by photographers; | 11 | | (7) professional services provided by journalists, | 12 | | freelance digital media workers, videographers, and audio | 13 | | or podcast producers; | 14 | | (8) professional services provided by software | 15 | | engineers; | 16 | | (9) professional services provided by a direct seller | 17 | | as described in Section 217(b) of the Unemployment | 18 | | Insurance Act, so long as the conditions of that section | 19 | | are satisfied; | 20 | | (10) professional services provided by a travel | 21 | | promoter under the Travel Promotion Consumer Protection | 22 | | Act; or | 23 | | (11) a profession, trade, or occupation licensed and | 24 | | regulated by the Department of
Financial and Professional | 25 | | Regulation, Department of Insurance, or the Illinois | 26 | | Supreme Court Attorney Registration and Disciplinary |
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| 1 | | Commission, if employment in such occupation is exempted
| 2 | | from Sections 206 and 207 of Title 29 of the United States | 3 | | Code as employment in a
bona fide professional capacity. | 4 | | "Retaliate" means to: | 5 | | (1) discharge; | 6 | | (2) demote or decline to promote; | 7 | | (3) deactivate or otherwise prevent an individual from | 8 | | returning to work; | 9 | | (4) reassign; | 10 | | (5) willfully prevent or attempt to prevent an | 11 | | individual from securing other employment or work by word, | 12 | | writing, or other action; | 13 | | (6) harass; | 14 | | (7) reduce worker hours; | 15 | | (8) reduce worker pay; | 16 | | (9) report or threaten to report an employee or hired | 17 | | individual, or former employee or hired individual, for | 18 | | suspected immigration or work authorization status; | 19 | | (10) report or threaten to report the suspected | 20 | | immigration or work authorization status of a family | 21 | | member of an employee or hired individual, or a former | 22 | | employee or hired individual, to a federal, State, or | 23 | | local agency; or | 24 | | (11) take any other action, including threatening to | 25 | | take action against an employee or any other person for | 26 | | exercising or attempting to exercise any right under this |
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| 1 | | Act if that action or threat would dissuade a reasonable | 2 | | employee or person from making a complaint, bringing an | 3 | | action or proceeding, cooperating in an investigation for | 4 | | the purposes of enforcing this Act, participating in an | 5 | | action or proceeding concerning the exercise or waiver of | 6 | | any right under this Act, any right of employees, or any | 7 | | right of individuals who experience misclassification, as | 8 | | required under a local, State, or federal law.
| 9 | | "Willfully violates" means a hiring entity knew or should | 10 | | have known that its conduct was prohibited by this Act. | 11 | | Section 15. Presumption of employment. | 12 | | (a) Any person performing any services for a hiring entity | 13 | | other than professional services or an individual who is the | 14 | | child, parent, sibling, or spouse of the hiring entity or its | 15 | | owner, shall be classified as an employee of the hiring | 16 | | entity, and the hiring entity shall be deemed an employer | 17 | | unless it can be shown by the hiring entity that the person is | 18 | | a separate business entity under subsection (b) or all of the | 19 | | following criteria are met, in which case the person shall be | 20 | | an independent contractor: | 21 | | (1) the individual has been and will continue to be | 22 | | free from control or direction over the performance of | 23 | | such services, both under the individual's contract of | 24 | | service and in fact; and | 25 | | (2) the service is either outside the usual course of |
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| 1 | | the business for which such service is performed or that | 2 | | such service is performed outside of all the places of | 3 | | business of the enterprise for which such service is | 4 | | performed; and | 5 | | (3) the individual is engaged in an independently | 6 | | established trade, occupation, profession, or business. | 7 | | (b) If a business service provider contracts to provide | 8 | | services to a contracting business, the business services | 9 | | provider shall be considered an independent contractor only if | 10 | | the contracting business demonstrates that all of the | 11 | | following criteria are satisfied: | 12 | | (1) the business service provider is free from the | 13 | | control and direction of the contracting business in | 14 | | connection with the performance of the work, both under | 15 | | the contract for the performance of the work and in fact; | 16 | | (2) the business service provider is providing | 17 | | services directly to the contracting business rather than | 18 | | to customers of the contracting business; | 19 | | (3) the contract with the business service provider is | 20 | | in writing; | 21 | | (4) if the work performed requires the business | 22 | | service provider to have a business license or business | 23 | | tax registration, the business service provider has the | 24 | | required business license or business tax registration; | 25 | | (5) the business service provider holds itself out as | 26 | | a distinct business; |
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| 1 | | (6) the business service provider maintains a business | 2 | | location that is separate from the business or work | 3 | | location of the contracting business; | 4 | | (7) the business service provider is customarily | 5 | | engaged in an independently established business of the | 6 | | same nature as that involved in the work performed; | 7 | | (8) the business service provider contracts with other | 8 | | businesses to provide the same or similar services and | 9 | | maintains a clientele without restrictions from the | 10 | | contracting business; | 11 | | (9) the business service provider has a substantial | 12 | | investment of capital in its own business entity beyond | 13 | | ordinary tools and equipment and a vehicle, such as a | 14 | | website or website business listings for the business | 15 | | entity, business cards, dedicated workspace apart from a | 16 | | vehicle, trademarks, general liability insurance for the | 17 | | business entity, or business or professional software, and | 18 | | not including any payments for access to an application | 19 | | through which work is distributed; | 20 | | (10) the business service provider provides its own | 21 | | tools, vehicles, and equipment to perform the services; | 22 | | (11) the business service provider can negotiate its | 23 | | own rates; | 24 | | (12) consistent with the nature of the work, the | 25 | | business service provider can set its own hours and | 26 | | location of work; and |
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| 1 | | (13) the business service provider's services are | 2 | | either outside the usual course of the contracting | 3 | | business's business or performed outside all places of the | 4 | | contracting business's business.
| 5 | | (c) The failure of a hiring entity to withhold federal or | 6 | | State income taxes or to pay unemployment insurance | 7 | | contributions or workers' compensation premiums with respect | 8 | | to an individual's wages shall not be considered in making a | 9 | | determination under this Section. | 10 | | (d) An individual's act of securing workers' compensation | 11 | | or liability insurance as a sole proprietor, partnership, or | 12 | | otherwise shall not be binding on any determination under this | 13 | | Section. | 14 | | (e) When a business service provider meets the definition | 15 | | of an independent contractor pursuant to this Section, the | 16 | | business service provider shall be considered a hiring entity | 17 | | subject to all of the provisions of this Act in regard to | 18 | | classification of individuals performing services for it. | 19 | | (f) A professional services provider shall be considered | 20 | | an independent contractor only if the hiring entity | 21 | | demonstrates that all of the following factors are met: | 22 | | (1) the professional services provider maintains a | 23 | | business location, which may include the individual's | 24 | | residence, that is separate from the hiring entity, | 25 | | however, nothing in this Section prohibits an individual | 26 | | from choosing to perform services at the location of the |
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| 1 | | hiring entity; | 2 | | (2) the professional services provider has any license | 3 | | or permit required by law for the individual to practice | 4 | | his or her profession; | 5 | | (3) the professional services provider has the ability | 6 | | to set or negotiate his or her own rates for the services | 7 | | performed; | 8 | | (4) outside of project completion dates, timing that | 9 | | is inherent in the project itself, and reasonable business | 10 | | hours, the professional services provider has the ability | 11 | | to set his or her own hours; | 12 | | (5) the professional services provider is customarily | 13 | | engaged in the same type of work performed under contract | 14 | | with another hiring entity or holds himself or herself out | 15 | | to other potential hiring entities as available to perform | 16 | | the same type of work; and | 17 | | (6) the professional services provider customarily and | 18 | | regularly exercises discretion and independent judgment in | 19 | | the performance of the services.
| 20 | | (g) Any individual classified by a hiring entity or | 21 | | employer as an employee shall enjoy an irrebuttable | 22 | | presumption of employee status under the laws of this State. | 23 | | Section 20. Failure to properly designate or classify | 24 | | individuals performing services as employees. It is a | 25 | | violation of this Act for an employer not to designate an |
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| 1 | | individual as an employee unless the employer satisfies the | 2 | | applicable provisions of Section 15. | 3 | | Section 22. Flexibility to work.
| 4 | | (a) Any individual reclassified as an employee pursuant to | 5 | | this Act has the right to maintain the same
schedule and | 6 | | scheduling flexibility that the individual possessed at any | 7 | | time while performing labor
for the employer as an independent | 8 | | contractor in the 12-month period prior to the effective date | 9 | | of
this Act. As used in this Section, "scheduling flexibility" | 10 | | includes: | 11 | | (1) the timing of the work
throughout an hour, day, | 12 | | week, month or year; | 13 | | (2) the total duration of the work in any given
| 14 | | period; and | 15 | | (3) the location where the work is performed. | 16 | | (b) It shall be considered an unlawful
employment practice | 17 | | under Section 25 to deny a reclassified individual this right | 18 | | to scheduling
flexibility. | 19 | | Section 25. Unlawful employment practices; preservation of | 20 | | employment status. | 21 | | (a) No hiring entity, or his or her agent, or person acting | 22 | | as or on behalf of a hiring entity shall discharge, threaten, | 23 | | penalize, or in any other manner discriminate or retaliate | 24 | | against any employee or hired individual because the employee |
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| 1 | | or hired individual: | 2 | | (1) exercises
rights or attempts to exercise rights | 3 | | under this Act; | 4 | | (2) opposes practices which such individual
believes | 5 | | to be in violation of this Act; or | 6 | | (3) supports the exercise of rights of another under | 7 | | this
Act. | 8 | | (b)Such unlawful employment practices include, but are not | 9 | | limited to, any reference to the
individual's or any of the | 10 | | individual's family members' citizenship or immigration | 11 | | status, or any
threat to contact or actual contact with any | 12 | | local, State, or federal government entities
regarding the | 13 | | individual's or any of the individual's family members' | 14 | | citizenship or immigration
status, or sexual harassment. | 15 | | (c) Exercising rights under this Act includes: | 16 | | (1) when such employee or hired individual has made a | 17 | | complaint to his or her hiring entity, or to the | 18 | | Department or its authorized representative, or to the | 19 | | Attorney General or any other person or organization, that | 20 | | the hiring entity or other person has engaged in conduct | 21 | | that the employee or hired individual, in good faith, | 22 | | believes violates any provision of this Act or any rule | 23 | | adopted by the Department to enforce this Act; | 24 | | (2) when such hiring entity or his or her agent, or | 25 | | person acting on behalf of a hiring entity, believes such | 26 | | employee or hired individual has made a complaint to his |
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| 1 | | or her hiring entity, to the Department or its authorized | 2 | | representative, or to the Attorney General or any other | 3 | | person or organization, that the hiring entity or other | 4 | | person has engaged in conduct that the employee or hired | 5 | | individual, in good faith, believes violates any provision | 6 | | of this Act, or any rule adopted by the Department to | 7 | | enforce this Act; | 8 | | (3) when such employee or hired individual has caused | 9 | | to be instituted or is about to institute a proceeding | 10 | | under or related to this Act; | 11 | | (4) when such employee or hired individual has | 12 | | provided information to the Department or the Attorney | 13 | | General; | 14 | | (5) when such employee or hired individual has | 15 | | testified or plans to testify in an investigation or | 16 | | proceeding under this Act; | 17 | | (6) when such employee or hired individual has | 18 | | otherwise exercised rights protected under this Act; | 19 | | (7) when the hiring entity or other person has | 20 | | received an adverse determination from the Department | 21 | | involving the employee or hired individual; | 22 | | (8) when such employee or hired individual has refused | 23 | | or declined to waive his or her rights under this Act; or | 24 | | (9) when such employee or hired individual has | 25 | | otherwise exercised or attempted to exercise his or her | 26 | | rights under local or State laws governing the payment of |
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| 1 | | wages, the rights of employees, or the rights of | 2 | | individuals who experience misclassification or the hiring | 3 | | entity or other person believes that such employee or | 4 | | hired individual has exercised, attempted to exercise, or | 5 | | plans to exercise such rights.
| 6 | | (d) No provision of this Act shall permit an employer to | 7 | | reclassify an individual who was an employee on the effective | 8 | | date of this Act as an independent contractor or reclassify a | 9 | | worker who receives gratuities, as defined under the Minimum | 10 | | Wage Law, based solely or in part on this Act. | 11 | | Section 30. Notice to individuals receiving pay for hire. | 12 | | (a) Every hiring entity shall post or distribute in a | 13 | | prominent and accessible manner a legible statement, provided | 14 | | by the Department, that describes the responsibility of | 15 | | independent contractors to pay taxes required by State and | 16 | | federal law, the rights of employees to workers' compensation, | 17 | | unemployment benefits, minimum wage, overtime and other | 18 | | federal and State workplace protections, the protections | 19 | | against retaliation, and the penalties under this Act if the | 20 | | hiring entity fails to properly classify an individual as an | 21 | | employee. This notice shall also contain contact information | 22 | | for individuals to file complaints or inquire with the | 23 | | Department about employment classification status. This | 24 | | information shall be provided in English, Spanish, and other | 25 | | languages that are spoken as a primary language by a |
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| 1 | | significant portion of the workers in a place of employment or | 2 | | by a significant portion of the State's population, as | 3 | | determined by the Department. | 4 | | (b) Within 30 days of the effective date of this Act, the | 5 | | Department shall create the notice described in subsection (a) | 6 | | and post the notice on the Department's website for | 7 | | downloading by hiring entities. | 8 | | (c) Any hiring entity that violates this Section shall be | 9 | | subject to a civil penalty of up to $1,500 for a first | 10 | | violation and up to $5,000 for a subsequent violation and any | 11 | | additional violations thereafter. | 12 | | Section 35. Enforcement. | 13 | | (a) Any interested party that believes that a hiring | 14 | | entity or employer is in violation of this Act may file a | 15 | | complaint with the Department against the hiring entity or | 16 | | employer covered under this Act. It is the duty of the | 17 | | Department to enforce the provisions of this Act either on the | 18 | | basis of a complaint received or a random audit conducted by | 19 | | the Department. The Department has the power to conduct random | 20 | | audits of entities subject to this Act to determine compliance | 21 | | with this Act. The Department has the power to conduct | 22 | | investigations in connection with the administration and | 23 | | enforcement of this Act and any investigator with the | 24 | | Department is authorized to visit and inspect, at all | 25 | | reasonable times, any places covered by this Act and is |
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| 1 | | authorized to inspect, at all reasonable times, documents | 2 | | deemed by the Department to be relevant to the determination | 3 | | of whether an individual is an employee under this Act. The | 4 | | Department may compel, by subpoena, the attendance and | 5 | | testimony of witnesses and the production of books, payrolls, | 6 | | records, papers, and other evidence in any investigation and | 7 | | may administer oaths to witnesses. The Department's | 8 | | investigation may exceed the scope of the allegations, | 9 | | persons, and entities contained in a complaint. | 10 | | (b) Complaints under this Section must be filed within 5 | 11 | | years after the final date of performing services to the | 12 | | hiring entity. | 13 | | (c) Whenever the Department believes upon investigation | 14 | | that there has been a violation of any of the provisions of | 15 | | this Act or any rules adopted under this Act, the Department | 16 | | may: | 17 | | (1) issue and cause to be served on any party an order | 18 | | to cease and desist from further violation of the Act; | 19 | | (2) take affirmative or other action as deemed | 20 | | reasonable to eliminate the effect of the violation; | 21 | | (3) collect the amount of any wages, salary, | 22 | | employment benefits, or other compensation denied or lost | 23 | | to the individual; and | 24 | | (4) assess any civil penalty allowed by this Act. | 25 | | (d) If, upon investigation, the Department finds cause to | 26 | | believe that Section 15 or Section 20 of this Act has been |
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| 1 | | violated, the Department shall notify the hiring entity, in | 2 | | writing, of its finding and any relief due and penalties | 3 | | assessed and that the matter will be referred to an | 4 | | Administrative Law Judge to schedule a formal hearing in | 5 | | accordance with the Illinois Administrative Procedure Act. | 6 | | (e) A final decision by an Administrative Law Judge issued | 7 | | in accordance with this Section is subject to the provisions | 8 | | of the Administrative Review Law and shall be enforceable in | 9 | | an action brought in the name of the people of the State of | 10 | | Illinois by the Attorney General or by any other interested | 11 | | party.
| 12 | | Section 40. Penalties. | 13 | | (a) Whenever the Department believes upon investigation | 14 | | that there has been a violation of this Act or any rules | 15 | | adopted in accordance with this Act, the Department may: | 16 | | (1) issue and cause to be served on any party an order | 17 | | to cease and desist from further violation of the Act; | 18 | | (2) take affirmative or other action as deemed | 19 | | reasonable to eliminate the effect of the violation; | 20 | | (3) collect the amount of any wages, salary, | 21 | | employment benefits, or other compensation denied or lost | 22 | | to the individual; and | 23 | | (4) assess any civil penalty allowed by this Act. | 24 | | (b) The civil penalties set forth in this Section shall be | 25 | | imposed as follows: by the Department when such penalty is |
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| 1 | | based on a violation of this Act; by the chair of the Illinois | 2 | | Workers' Compensation Commission when such penalty is based on | 3 | | a violation of workers' compensation law; and by the Director | 4 | | of the Department of Revenue when such penalty is based on a | 5 | | violation of tax law, provided that no more than one civil | 6 | | penalty under this Section may be imposed per employee per | 7 | | incident of misclassification. | 8 | | (c) Any hiring entity who fails to properly classify an | 9 | | individual as an employee as provided under this Act shall be | 10 | | subject to a civil penalty of up to $2,500 for the first | 11 | | violation per misclassified employee and to a civil penalty of | 12 | | up to $5,000 for each subsequent violation per misclassified | 13 | | employee. In determining the amount of the penalty, the | 14 | | Department shall consider the appropriateness of the penalty | 15 | | to the hiring entity charged and the gravity of the violation. | 16 | | (d) Any hiring entity that willfully fails to properly | 17 | | classify an individual as provided under this Act shall be | 18 | | subject to a civil penalty of an additional $2,500 for the | 19 | | first violation per misclassified employee and to an | 20 | | additional civil penalty of up to $5,000 for each subsequent | 21 | | violation per misclassified employee within a 5-year period. | 22 | | (e) If the hiring entity is a corporation, any officer of | 23 | | such corporation or shareholder who owns or controls at least | 24 | | 10% of the outstanding stock of such corporation who knowingly | 25 | | permits the corporation to violate the provisions of this Act | 26 | | shall also be in violation of this Act and the civil penalties |
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| 1 | | herein shall attach to such officer. | 2 | | (f) Any hiring entity subject to civil penalties under | 3 | | this Act shall also be subject to any other applicable | 4 | | penalties or remedies provided by law for failure to pay any | 5 | | other statutory payment or coverage obligations, including, | 6 | | but not limited to, unemployment insurance, workers' | 7 | | compensation insurance, and corporate or personal income tax. | 8 | | (g) Any hiring entity or any officer or shareholder who | 9 | | owns or controls at least 10% of the outstanding stock of such | 10 | | corporation that has been convicted of a misdemeanor shall be | 11 | | subject to debarment and be ineligible to submit a bid on or be | 12 | | awarded any public works contract under the Illinois | 13 | | Procurement Code with the State, any municipal corporation, | 14 | | public benefit corporation, public authority, or public body | 15 | | for a period of up to one year from the date of a first such | 16 | | conviction or final determination and up to 5 years from the | 17 | | date of any subsequent violation. | 18 | | (h) In addition to any other remedies available, an action | 19 | | for injunctive relief to prevent the continued | 20 | | misclassification of employees as independent contractors may | 21 | | be prosecuted against the putative employer in court by the | 22 | | Attorney General or by a State's Attorney upon his or her own | 23 | | complaint or upon the complaint of an interested party. | 24 | | (i) Nothing in this Section limits the availability of | 25 | | other remedies at law or in equity for a violation of this Act. | 26 | | (j) Penalties imposed shall be collected by the Department |
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| 1 | | and deposited into the Day and Temporary Labor Services | 2 | | Enforcement Fund. | 3 | | Section 45. Private right of action. | 4 | | (a) An interested party or person aggrieved by a violation | 5 | | of this Act or any rule adopted under this Act by a hiring | 6 | | entity that is not the State of Illinois or its officers, | 7 | | agencies, or political subdivisions may file suit in circuit | 8 | | court in the county where the alleged offense occurred or | 9 | | where any person who is party to the action resides without | 10 | | regard to exhaustion of any administrative remedies. If a | 11 | | complaint
filed against the State of Illinois or its officers, | 12 | | agencies, or political subdivisions with the
Department | 13 | | pursuant to Section 45 of this Act has been pending for more | 14 | | than 75 days with
the Department, that interested party or | 15 | | person aggrieved may file suit in circuit court in the
county | 16 | | where the alleged offense occurred or where any person who is | 17 | | party to the action
resides without regard to exhaustion of | 18 | | administrative remedies. Actions may be brought by one or more | 19 | | persons for and on behalf of themselves and other persons | 20 | | similarly situated. A person whose rights have been violated | 21 | | under this Act by a hiring entity is entitled to collect: | 22 | | (1) the amount of any wages, salary, employment | 23 | | benefits, or other compensation denied or lost to the | 24 | | person by reason of the violation, plus an equal amount in | 25 | | liquidated damages; |
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| 1 | | (2) civil penalties pursuant to subsection (d); | 2 | | (3) in the case of unlawful retaliation, all legal or | 3 | | equitable relief as may be appropriate, including, but not | 4 | | limited to, reinstatement to the worker's former position | 5 | | or its equivalent, an award of lost compensation or front | 6 | | pay, and restitution and liquidated damages equal to the | 7 | | economic compensation lost due to the retaliation; and | 8 | | (4) the costs and reasonable attorney's fees of | 9 | | pursuing the cause of action.
| 10 | | (b) The Court may order appropriate injunctive relief. | 11 | | (c) The right of an interested party or aggrieved person | 12 | | to bring an action under this Section terminates upon the | 13 | | passing of 5 years from the final date of performing services | 14 | | to the hiring entity. This limitations period is tolled if the | 15 | | hiring entity has deterred a person's exercise of rights under | 16 | | this Act or during the time a complaint is pending before the | 17 | | Department. | 18 | | (d) An employee or hired individual may seek the civil | 19 | | penalties provided under Section 35 of this Act if, at the | 20 | | commencement of the action, a copy of the complaint is served | 21 | | on the Department and the Department has declined or failed to | 22 | | initiate an investigation. The commencement of an action under | 23 | | this Section shall terminate the administrative proceeding | 24 | | before the Department. The Department shall be granted | 25 | | intervenor status as of right if sought by the Department | 26 | | within 30 days of the service of the complaint for the purpose |
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| 1 | | of collecting civil penalties under Section 35 of this Act. | 2 | | Any award of civil penalties obtained as a result of an action | 3 | | brought under this Section by an aggrieved employee or hired | 4 | | individual, on behalf of themselves or others similarly | 5 | | situated shall be awarded in the name of the State, of which | 6 | | the plaintiff shall be entitled to a 25% allotment, in | 7 | | addition to the other relief that may be recovered under this | 8 | | Section.
| 9 | | Section 55. Contempt. Whenever it appears that any hiring | 10 | | entity has violated a valid order or any final determination | 11 | | from the Department issued under this Act, the Department | 12 | | shall refer the matter to the Attorney General who shall | 13 | | commence an action and obtain from the court an order | 14 | | commanding the hiring entity to obey the order of the | 15 | | Department or be adjudged guilty of contempt of court and | 16 | | punished accordingly. | 17 | | Section 60. Rulemaking. The Department may adopt | 18 | | reasonable rules to implement and administer this Act. For | 19 | | purposes of this Act, the General Assembly finds that the | 20 | | adoption of rules to implement this Act is deemed an emergency | 21 | | and necessary for the public interest and welfare. | 22 | | Section 65. No waivers. There shall be no waiver of any | 23 | | provision of this Act. Any such waiver shall
be considered an |
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| 1 | | unlawful employment practice under Section 25. | 2 | | Section 67. Conflict of law. To the extent that any | 3 | | provision of this Act conflicts with any Act that seeks to | 4 | | define
employee, the provisions of this Act shall control, | 5 | | except for the Unemployment Insurance Act which shall control | 6 | | for the purposes of administering unemployment insurance | 7 | | benefits only. | 8 | | Section 70. Cooperation. The Department, the Department of | 9 | | Employment Security, the Department of Revenue, and the | 10 | | Illinois Workers' Compensation Commission shall cooperate | 11 | | under this Act by sharing information concerning any suspected | 12 | | misclassification by a hiring entity of one or more of its | 13 | | employees as independent contractors. Upon determining that a | 14 | | hiring entity has misclassified employees as independent | 15 | | contractors in violation of this Act, the Department shall | 16 | | notify the Department of Employment Security, the Department | 17 | | of Revenue, the Office of the State Comptroller, and the | 18 | | Illinois Workers' Compensation Commission each of which shall | 19 | | be obliged to check such hiring entity's compliance with laws | 20 | | it administers, utilizing its own definitions, standards, and | 21 | | procedures. | 22 | | Section 75. Waiver of sovereign immunity. For the purposes | 23 | | of this Act, the State of Illinois waives sovereign immunity. |
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| 1 | | Section 90. The Illinois Administrative Procedure Act is | 2 | | amended by adding Section 5-45.8 as follows: | 3 | | (5 ILCS 100/5-45.8 new) | 4 | | Sec. 5-45.8. Emergency rulemaking; Fair Play in Employment | 5 | | Act. To provide for the expeditious and timely implementation | 6 | | of the Fair Play in Employment Act, emergency rules | 7 | | implementing that Act may be adopted in accordance with | 8 | | Section 5-45 by the Department of Labor. The adoption of | 9 | | emergency rules authorized by Section 5-45 and this Section is | 10 | | deemed to be necessary for the public interest, safety, and | 11 | | welfare. | 12 | | This Section is repealed on January 1, 2027. ".
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