Full Text of HB1122 103rd General Assembly
HB1122ham001 103RD GENERAL ASSEMBLY | Rep. Will Guzzardi Filed: 2/17/2023
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| 1 | | AMENDMENT TO HOUSE BILL 1122
| 2 | | AMENDMENT NO. ______. Amend House Bill 1122 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 1. Short title. This Act may be cited as the | 5 | | Freelance Worker Protection Act. | 6 | | Section 5. Definitions. As used in this Act: | 7 | | "Department" means the Department of Labor. | 8 | | "Director" means the Director of Labor, or his or her | 9 | | designee. | 10 | | "Freelance worker" means a natural person who is hired or | 11 | | retained as an independent contractor by a hiring party to | 12 | | provide products or services in Illinois or for a hiring party | 13 | | located in Illinois in exchange for an amount equal to or | 14 | | greater than $500, either by itself or when aggregated with | 15 | | all contracts for products or services between the same hiring | 16 | | party and the freelance worker during the immediately |
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| 1 | | preceding 120 days. "Freelance worker" does not include an | 2 | | individual performing services as an employee under Section 10 | 3 | | of the Employee Classification Act or an employee as defined | 4 | | in Section 2 of the Wage Payment and Collection Act. | 5 | | "Hiring party" means any person who retains a freelance | 6 | | worker to provide any service, other than: | 7 | | (1) the United States government; | 8 | | (2) the State of Illinois; | 9 | | (3) a unit of local government; or | 10 | | (4) any foreign government. | 11 | | "Natural person" means an individual human being. | 12 | | "Person" means any natural person, individual, | 13 | | corporation, business enterprise or other legal entity, either | 14 | | public or private, and any legal successor, representative, | 15 | | agent or agency of that individual, corporation, business | 16 | | enterprise, or legal entity. | 17 | | Section 10. Payment of compensation for freelance workers. | 18 | | (a) Except as otherwise provided by law, a freelance | 19 | | worker shall be paid the contracted compensation amount no | 20 | | later than 30 days after the freelance worker provides the | 21 | | product or completes the services under the contract. | 22 | | (b) Once a freelance worker has commenced preparation of | 23 | | the product or performance of the services under the contract, | 24 | | the hiring party shall not require as a condition of timely | 25 | | payment that the freelance worker accept less compensation |
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| 1 | | than the amount of the contracted compensation.
| 2 | | Section 15. Contract for products and services of | 3 | | freelance workers. | 4 | | (a) Whenever a hiring party retains a freelance worker, | 5 | | the contract for such products or services shall be reduced to | 6 | | writing and signed by the freelance worker and the hiring | 7 | | party. The hiring party shall furnish a copy of the written | 8 | | contract, either physically or electronically, to the | 9 | | freelance worker and each party to the written contract shall | 10 | | retain a copy thereof. | 11 | | (b) The written contract for the product and service of a | 12 | | freelance worker shall include, at a minimum, the following | 13 | | information: | 14 | | (1) the name and mailing address of both the hiring | 15 | | party and the freelance worker; | 16 | | (2) an itemization of all products and services to be | 17 | | provided by the freelance worker, the value of the | 18 | | products and services to be provided under the terms of | 19 | | the contract, and the rate and method of compensation; | 20 | | (3) the date on which the hiring party must pay the | 21 | | contracted compensation or the mechanism by which such | 22 | | date will be determined; and | 23 | | (4) the date by which a freelance worker must submit a | 24 | | list of products or services rendered under such contract | 25 | | to the hiring party in order to meet any internal |
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| 1 | | processing deadlines of the hiring party for the purposes | 2 | | of compensation being timely render by the agreed-upon | 3 | | date as stipulated in paragraph (3). | 4 | | (c) The Department may adopt rules as necessary to enforce | 5 | | this Act, including, but not limited to, requiring additional | 6 | | terms to ensure that the freelance worker and the hiring party | 7 | | understand their obligations under the contract. | 8 | | (d) The hiring party shall retain the contract for the | 9 | | service of a freelance worker for no less than 6 years and | 10 | | shall make such contract available to the Department upon | 11 | | request. The failure of the hiring party to produce such | 12 | | contract within 5 business days upon the request of the | 13 | | Department shall give rise to a presumption that the terms the | 14 | | freelance worker has presented are the agreed upon terms. | 15 | | (e) The Department shall make available model contracts on | 16 | | its website for use by the general public at no cost. Such | 17 | | model contracts shall be made available in English and in the 8 | 18 | | languages most commonly spoken by limited English proficient | 19 | | individuals in the State.
| 20 | | Section 20. Nondiscrimination. No hiring party shall | 21 | | threaten, intimidate, discipline, harass, deny a freelance | 22 | | opportunity to, or take any other action that penalizes a | 23 | | freelance worker for, or is reasonably likely to deter a | 24 | | freelance worker from, exercising or attempting to exercise | 25 | | any right guaranteed by this Act, or from obtaining any future |
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| 1 | | work opportunity because the freelance worker has done so. | 2 | | Section 25. Enforcement. | 3 | | (a) It shall be the duty of the Department to inquire | 4 | | diligently for any violations of this Act, and to institute | 5 | | the actions for penalties provided by this Act, and to enforce | 6 | | generally the provisions of this Act. | 7 | | (b) A freelance worker may file a complaint with the | 8 | | Department alleging violations of the Act by submitting a | 9 | | signed, completed compensation claim application on the form | 10 | | provided by the Department and by submitting copies of all | 11 | | supporting documentation. The form provided by the Department | 12 | | shall include requests for information to facilitate its | 13 | | report making requirements under Section 50, including, (1) | 14 | | the general sector or occupation of the freelance worker | 15 | | submitting a claim under this Act, (2) the county where the | 16 | | work by the freelance worker was performed, and (3) the | 17 | | demographic data of the freelance worker submitting a claim | 18 | | under this Act, to be provided by the freelance worker on a | 19 | | voluntary basis. Complaints alleging violation of Section 15 | 20 | | shall be filed within 2 years after the date the final | 21 | | compensation was due. Complaints alleging violation of Section | 22 | | 10 shall be filed within 3 years after the date the final | 23 | | compensation was due. Applications shall be reviewed by the | 24 | | Department to determine whether there is cause for | 25 | | investigation. Failure of a hiring party to keep adequate |
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| 1 | | records or provide written contract as required by this Act | 2 | | shall not operate as a bar to a freelance worker filing a | 3 | | complaint. The Department shall keep the names of freelance | 4 | | workers who are the subject of an investigation confidential | 5 | | until such time that disclosure is necessary for resolution of | 6 | | an investigation or complaint. | 7 | | (c) Each freelance worker who files a completed | 8 | | compensation claim application alleging a violation of this | 9 | | Act or a rule adopted thereunder shall be provided with a | 10 | | written description of the anticipated processing of the | 11 | | complaint, including investigation, case conference, potential | 12 | | civil and criminal penalties, and collection procedures. Each | 13 | | freelance worker and his or her authorized representative | 14 | | shall be notified in writing of any case conference before it | 15 | | is held and given the opportunity to attend. Each freelance | 16 | | worker and his or her authorized representative shall be | 17 | | notified in writing of any award and collection of civil | 18 | | penalties. | 19 | | (d) The Department shall have the power to investigate and | 20 | | attempt equitably to adjust controversies between freelance | 21 | | workers and hiring entities in respect of compensation claims | 22 | | arising under this Act and to that end the Department through | 23 | | the Director or any other person in the Department designated | 24 | | by him or her, shall have the power to administer oaths, | 25 | | subpoena and examine witnesses, to issue subpoenas duces tecum | 26 | | requiring the production of such books, papers, records and |
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| 1 | | documents as may be evidence of any matter under inquiry and to | 2 | | examine and inspect the same as may relate to the question in | 3 | | dispute. Service of such subpoenas shall be made by any | 4 | | sheriff or any person. Any court in this State, upon the | 5 | | application of the Department may compel attendance of | 6 | | witnesses, the production of books and papers, and the giving | 7 | | of testimony before the Department by attachment for contempt | 8 | | or in any other way as the production of evidence may be | 9 | | compelled before such court. The Department may initiate a | 10 | | mediation conference. | 11 | | (e) Where reasonable cause exists to believe that a hiring | 12 | | party is engaged in a pattern or practice of violations of this | 13 | | Act, the Attorney General may commence a civil action on | 14 | | behalf of the State in a court of competent jurisdiction. The | 15 | | Attorney General may receive injunctive relief, civil | 16 | | penalties, and any other relief deemed appropriate by the | 17 | | court. | 18 | | (f) Nothing in this Act shall be construed to prevent any | 19 | | freelance worker from making complaint or prosecuting his or | 20 | | her own claim for compensation. Any freelance worker aggrieved | 21 | | by a violation of this Act or any rule adopted under this Act | 22 | | may file suit in circuit court of Illinois, in the county where | 23 | | the alleged violation occurred or where any freelance worker | 24 | | who is party to the action resides, without regard to | 25 | | exhaustion of any alternative administrative remedies provided | 26 | | in this Act. Actions may be brought by one or more freelance |
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| 1 | | workers for and on behalf of themselves and other freelance | 2 | | workers similarly situated. | 3 | | (g) Nothing in this Act shall be construed to limit the | 4 | | authority of the State's attorney of any county to prosecute | 5 | | actions for violation of this Act or to enforce the provisions | 6 | | thereof independently and without specific direction of the | 7 | | Department. | 8 | | Section 30. Civil enforcement. | 9 | | (a) Any freelance worker not timely paid final | 10 | | compensation by a hiring party as required by Section 10 shall | 11 | | be entitled to recover through a claim filed with the | 12 | | Department or in a civil action, but not both, double the | 13 | | amount of any such underpayments, injunctive relief, and other | 14 | | such remedies as may be appropriate. In a civil action for | 15 | | violation of Section 10, such freelance worker shall also | 16 | | recover costs and all reasonable attorney's fees. Civil | 17 | | complaints alleging violation of Section 10 shall be filed | 18 | | within 3 years after the date the final compensation was due. | 19 | | (b) Any freelance worker who was retained in violation of | 20 | | Section 15 despite the freelance worker's request for a | 21 | | written contract prior to commencing the contracted work as | 22 | | required by Section 15 shall be entitled to recover through a | 23 | | claim filed with the Department or in a civil action, but not | 24 | | both, statutory damages of $500. However, a freelance worker | 25 | | who prevails on a claim alleging violation of Section 15 and on |
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| 1 | | one or more claims under other Sections shall be awarded | 2 | | statutory damages equal to the value of the underlying | 3 | | contract or $500, whichever is greater, in addition to the | 4 | | other remedies provided. Civil complaints alleging violation | 5 | | of Section 15 shall be filed within 2 year after the date the | 6 | | final compensation was due. | 7 | | (c) Any freelance worker who is threatened, intimidated, | 8 | | disciplined, harassed, denied a freelance opportunity, or | 9 | | penalized by a hiring party in violation of Section 20 of this | 10 | | Act shall be entitled to recover through a claim filed with the | 11 | | Department or in a civil action, but not both, statutory | 12 | | damages equal to the value of the underlying contract for each | 13 | | violation of Section 20. In a civil action for violation of | 14 | | Section 20, such freelance worker shall also recover costs and | 15 | | all reasonable attorney's fees. | 16 | | Section 35. Criminal penalties. In addition to the other | 17 | | remedies provided in this Act, any hiring party or any agent of | 18 | | a hiring party, who, being able to pay final compensation and | 19 | | being under a duty to pay, wilfully refuses to pay as provided | 20 | | in this Act, or falsely denies the amount or validity thereof | 21 | | or that the same is due, with intent to secure for the hiring | 22 | | party or other person any underpayment of such indebtedness or | 23 | | with intent to annoy, harass, oppress, hinder, delay, or | 24 | | defraud the freelance worker to whom such indebtedness is due, | 25 | | upon conviction, is guilty of: |
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| 1 | | (1) for unpaid final compensation in the amount of | 2 | | $5,000 or less, a Class B misdemeanor; or | 3 | | (2) for unpaid final compensation in the amount of | 4 | | more than $5,000, a Class A misdemeanor. | 5 | | Each day during which any violation of this Act continues | 6 | | shall constitute a separate and distinct offense. | 7 | | Any hiring party or any agent of a hiring party who | 8 | | violates this Act a subsequent time within 2 years of a prior | 9 | | criminal conviction under this Section is guilty, upon | 10 | | conviction, of a Class 4 felony. | 11 | | Section 40. Public policy and intent. | 12 | | (a) Except as otherwise provided by law, any provision of | 13 | | a contract purporting to waive rights under this Act is void as | 14 | | against public policy. | 15 | | (b) The provisions of this Act are intended to supplement, | 16 | | and do not diminish or replace, any other basis of liability, | 17 | | remedy, or requirement established by statute or common law. | 18 | | (c) Failure to comply with this Section does not render | 19 | | any contract between a hiring party and a freelance worker | 20 | | void in total, voidable, or otherwise impair any obligation, | 21 | | claim, or right related to the contract, nor does it | 22 | | constitute a defense to any action or proceeding to enforce, | 23 | | or for breach of, such contract. | 24 | | (d) No provision of this Act relating to freelance workers | 25 | | shall be construed as providing a determination about the |
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| 1 | | legal classification of any such worker as an employee or | 2 | | independent contractor. | 3 | | Section 45. Public awareness. Subject to appropriation, | 4 | | the Department may conduct a public awareness campaign, that | 5 | | shall include making information available on its website, | 6 | | otherwise informing hiring parties of the provisions of this | 7 | | Act, and establishing a means for assistance by a natural | 8 | | person through phone or email. | 9 | | Section 50. Reports. One year after the effective date of | 10 | | this Act, and by November 1 every 5 years thereafter, the | 11 | | Department shall submit to the General Assembly and publish on | 12 | | its website a report regarding the effectiveness of this Act | 13 | | at improving freelance contracting and payment practices. The | 14 | | report shall include, but is not limited to: | 15 | | (1) the number of complaints received; | 16 | | (2) the value of the contracts disaggregated into | 17 | | ranges of $500 and by the Section of this Act the | 18 | | associated hiring party is alleged to have violated; | 19 | | (3) the numbers of responses and non-responses | 20 | | received by the Department disaggregated by contract value | 21 | | into ranges of $500 and by the Section of this Act the | 22 | | associated hiring party is alleged to have violated; | 23 | | (d) the number of freelance workers that pursue their | 24 | | claims of violation of this Act through civil action or an |
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| 1 | | alternative dispute resolution process, and a summary of | 2 | | the outcomes, if known; | 3 | | (4) the general sector or occupation of the freelance | 4 | | workers submitting claims pursuant to this Act; | 5 | | (5) the counties where violations of this Act are | 6 | | alleged to have occurred, including the number of | 7 | | violations from each county; | 8 | | (6) to the extent available, demographic data of the | 9 | | freelance workers who allege violations of this Act; and | 10 | | (7) legislative recommendations, including | 11 | | consideration of whether certain occupations should be | 12 | | exempted from the scope of the definition of freelance | 13 | | worker. | 14 | | Section 55. Coordination. | 15 | | (a) The Department is authorized to coordinate enforcement | 16 | | efforts with other agencies and combine claims under this Act | 17 | | with claims under other Acts. | 18 | | (b) The Department is authorized to enter into agreements | 19 | | with other states to collect unpaid compensation from | 20 | | out-of-state hiring entities and to perform reciprocal | 21 | | services for such states in the State of Illinois. | 22 | | Section 60. Rulemaking. The Director, or his authorized | 23 | | representatives, shall administer and enforce the provisions | 24 | | of this Act. In order to accomplish the objectives of this Act |
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| 1 | | and to carry out the duties prescribed by this Act, the | 2 | | Director, or his authorized representative, shall adopt rules | 3 | | necessary to administer and enforce the provisions of this | 4 | | Act, including the procedures that shall be followed for | 5 | | hearings under Section 25. The adoption, amendment, or | 6 | | rescission of rules shall be in conformity with the | 7 | | requirements of the Illinois Administrative Procedure Act.
| 8 | | Section 99. Effective date. This Act takes effect July 1, | 9 | | 2024.".
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