Full Text of HB5071 103rd General Assembly
HB5071ham001 103RD GENERAL ASSEMBLY | Rep. Lilian Jiménez Filed: 4/4/2024 | | 10300HB5071ham001 | | LRB103 39402 SPS 71815 a |
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| 1 | | AMENDMENT TO HOUSE BILL 5071
| 2 | | AMENDMENT NO. ______. Amend House Bill 5071 by replacing | 3 | | everything after the enacting clause with the following: | 4 | | "Section 1. Short title. This Act may be cited as the Work | 5 | | Without Fear Act. | 6 | | Section 5. Legislative findings. The General Assembly | 7 | | finds as follows: | 8 | | (1) Wage theft is a serious and widespread problem | 9 | | that causes severe hardship to low-wage workers, their | 10 | | families, and their communities. | 11 | | (2) When a worker is denied wages or is forced to work | 12 | | "off the clock", there is an immediate and irreparable | 13 | | harm to the worker and his or her family. | 14 | | (3) Low-wage, often immigrant, workers are among the | 15 | | most frequent victims of wage theft and are also exposed | 16 | | to the greatest hazards at work. |
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| 1 | | (4) Immigrant workers are among those most frequently | 2 | | injured or killed on the job. | 3 | | (5) Workers who come forward to expose unfair, unsafe, | 4 | | or illegal conditions face retaliation from employers with | 5 | | alarming frequency. When those workers are immigrants, | 6 | | employer retaliation often involves threats or efforts to | 7 | | contact law enforcement agencies, including immigration | 8 | | enforcement agencies, if a worker engages in protected | 9 | | conduct. | 10 | | (6) No applicant or employee should have to fear | 11 | | adverse action, whether it involves threats to cut hours, | 12 | | move a worker to an undesirable schedule, or contact law | 13 | | enforcement agencies, for exercising employment rights | 14 | | guaranteed by the State of Illinois. | 15 | | (7) It is in the public policy interest of the State of | 16 | | Illinois that workers be able to report concerns to their | 17 | | employers and to Illinois labor enforcement agencies | 18 | | without fear of retaliation or discrimination. | 19 | | (8) It is in the public policy interest of the State of | 20 | | Illinois for workers to be willing to come forward to | 21 | | expose hazardous, unsafe, and unfair conditions at their | 22 | | work sites so that local, State, and federal agencies can | 23 | | effectively enforce the law. | 24 | | (9) It is essential to the enforcement of Illinois' | 25 | | labor laws that broad, clear, and effective protections | 26 | | from all forms of employer retaliation, including |
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| 1 | | prohibiting immigration-related threats, exist for workers | 2 | | engaging in conduct protected by law. | 3 | | Section 10. Definitions. As used in this Act: | 4 | | "Applicable employment laws" means the Illinois Wage | 5 | | Payment and Collection Act, the Prevailing Wage Act, the | 6 | | Minimum Wage Law, the Day and Temporary Labor Services Act, | 7 | | the Equal Pay Act of 2003, the One Day Rest in Seven Act, the | 8 | | Victims' Economic Security and Safety Act, the Employee Sick | 9 | | Leave Act, the Child Labor Law, the Employee Classification | 10 | | Act, the Domestic Workers Bill of Rights, the Right to Privacy | 11 | | in the Workplace Act, the Illinois Worker Adjustment and | 12 | | Retraining Notification Act, the Family Bereavement Leave Act, | 13 | | the Job Opportunities for Qualified Applicants Act, the Paid | 14 | | Leave for All Workers Act, the Personnel Record Review Act, | 15 | | and any new Act concerning employment rights that the | 16 | | Department of Labor maintains jurisdiction to enforce. | 17 | | "Applicant" means any person pursuing employment with an | 18 | | employer or with or through an employment agency or a day and | 19 | | temporary labor service agency. | 20 | | "Department" means the Department of Labor. | 21 | | "Director" means the Director of Labor. | 22 | | "Employer" means an individual, sole proprietorship, | 23 | | partnership, firm, association, corporation, limited liability | 24 | | company, business trust, and any other entity that has one or | 25 | | more employees in this State or any person or group of persons |
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| 1 | | acting directly or indirectly in the interest of an employer | 2 | | in relation to an employee. | 3 | | "Employee" means any individual permitted to work by an | 4 | | employer in an occupation, but shall not include any | 5 | | individual: | 6 | | (1) who has been and will continue to be free from | 7 | | control and direction over the performance of his or her | 8 | | work, both under a contract of service with the employer | 9 | | and in fact; | 10 | | (2) who performs a service that is outside the usual | 11 | | course of services performed by the employer; and | 12 | | (3) who is in an independently established trade, | 13 | | occupation, profession, or business. | 14 | | "Employee" includes a worker who an employer incorrectly | 15 | | classifies as an independent contractor. | 16 | | "Family or household member" means a spouse or party to a | 17 | | civil union, parent, grandparent, child, grandchild, sibling, | 18 | | or any other person related by blood or by present or prior | 19 | | marriage or civil union, any other person who shares a | 20 | | relationship through a child, or any other individual whose | 21 | | close association with the applicant, employee, or independent | 22 | | contractor is the equivalent of a family relationship as | 23 | | determined by the applicant, employee, independent contractor, | 24 | | or persons jointly residing in the same household. | 25 | | "Immigration-related retaliation" means any of the | 26 | | following practices, when undertaken for a retaliatory |
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| 1 | | purpose: | 2 | | (1) contacting or threatening to contact United States | 3 | | immigration authorities, or otherwise reporting or | 4 | | threatening to report a person's or employee's suspected | 5 | | citizenship or immigration status or the suspected | 6 | | citizenship or immigration status of a family or household | 7 | | member of the person or employee to a federal, State, or | 8 | | local agency; | 9 | | (2) using the federal E-Verify system to check the | 10 | | employment authorization status of a person at a time or | 11 | | in a manner not required under 8 U.S.C. 1324a(b) or not | 12 | | authorized under any memorandum of understanding governing | 13 | | the use of the federal E-Verify system; | 14 | | (3) engaging in unfair documentary practices by | 15 | | demanding more or different documents than necessary, | 16 | | requesting specific documents, or rejecting reasonably | 17 | | genuine-looking documents while verifying a worker's | 18 | | citizenship, immigration status, or national origin, as | 19 | | described in 8 U.S.C. 1324b(a)(6); and | 20 | | (4) filing or threatening to file a false police | 21 | | report. | 22 | | "Immigration-related retaliation" does not include conduct | 23 | | undertaken at the express and specific direction or request of | 24 | | the federal government. | 25 | | "Person" means every natural person, firm, partnership, | 26 | | copartnership, limited liability company, corporation, |
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| 1 | | association, business trust, or other legal entity, or its | 2 | | legal representatives, agents, or assignees. | 3 | | "Violation" means each incident of immigration-related | 4 | | retaliation with respect to each of applicant, employee, and | 5 | | independent contractors against whom immigration-related | 6 | | retaliation was taken. | 7 | | Section 15. Prohibited immigration-related retaliation. | 8 | | (a) Notwithstanding any other provision of law, it shall | 9 | | be unlawful for an employer or any other person or entity to | 10 | | engage in, or to direct another person or entity to engage in, | 11 | | immigration-related retaliation against any applicant, | 12 | | employee, independent contractor, or his or her family member | 13 | | or household member for the purpose of, or with the effect of, | 14 | | retaliating against any applicant, employee, or independent | 15 | | contractor who in good faith: | 16 | | (1) files a complaint or informs any person of an | 17 | | employer's or other party's alleged violation of an | 18 | | applicable employment law; | 19 | | (2) seeks information regarding whether an employer or | 20 | | other party is in compliance with an applicable employment | 21 | | law; | 22 | | (3) informs a person of his or her potential rights | 23 | | and remedies under an applicable employment law or assists | 24 | | them in asserting those rights; | 25 | | (4) files a complaint, seeks information, informs any |
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| 1 | | person of an employer's or third-party's alleged violation | 2 | | of rights, or informs a person of his or her rights | 3 | | concerning conduct prohibited by Section 2-101 of the | 4 | | Illinois Human Rights Act; | 5 | | (5) has exercised his or her rights protected by an | 6 | | applicable employment law in any former employment; or | 7 | | (6) discloses or threatens to disclose that an | 8 | | activity, policy, or practice of the employer poses a | 9 | | substantial and specific danger to public health or | 10 | | safety. | 11 | | (b) Engaging in immigration-related retaliation against a | 12 | | person within 90 days after the person's exercise of rights | 13 | | protected under this Act shall raise a rebuttable presumption | 14 | | of having done so in retaliation for the exercise of those | 15 | | rights. The presumption of an unfair immigration-related | 16 | | action taken by an employer or other entity may be rebutted by | 17 | | clear and convincing evidence that the action was taken for a | 18 | | lawful purpose. | 19 | | Section 20. Enforcement by Department. | 20 | | (a) It shall be the duty of the Department to inquire | 21 | | diligently into any alleged violations of this Act, to | 22 | | institute the actions for the penalties provided in this | 23 | | Section, and to enforce the provisions of this Act. | 24 | | (1) An applicant or employee may file a complaint with | 25 | | the Department alleging a violation of this Act, except |
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| 1 | | for a violation of paragraph (4) of subsection (a) of | 2 | | Section 15, by submitting a signed, completed complaint on | 3 | | the form provided by the Department alleging | 4 | | immigration-related retaliation and by submitting copies | 5 | | of all supporting documentation. Complaints shall be filed | 6 | | within one year after the date of the retaliation. | 7 | | (2) Complaints shall be reviewed by the Department to | 8 | | determine whether there is cause for investigation. | 9 | | (b) The Department shall have the following powers to | 10 | | enforce this Act: | 11 | | (1) Investigate and attempt equitably to adjust | 12 | | controversies between applicants or employees and | 13 | | employers regarding claims of immigration-related | 14 | | retaliation under this Act, including administering oaths, | 15 | | subpoenaing and examining witnesses, issuing subpoenas | 16 | | duces tecum requiring the production of books, papers, | 17 | | records, and documents as may be evidence of any matter | 18 | | under inquiry, and examining and inspecting the books, | 19 | | papers, records, and documents as may relate to the | 20 | | question in dispute. Service of subpoenas shall be made by | 21 | | any sheriff or any person. Any court in this State, upon | 22 | | the application of the Department, may compel attendance | 23 | | of witnesses, the production of books and papers, and the | 24 | | giving of testimony before the Department by attachment | 25 | | for contempt or in any other way as the production of | 26 | | evidence may be compelled before the court. |
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| 1 | | (2) Take complaints of immigration-related retaliation | 2 | | in the name of the Director and his or her successors in | 3 | | office and prosecute actions for the collection of | 4 | | remedies and penalties for immigration-related retaliation | 5 | | for persons financially unable to prosecute the claims | 6 | | when in the judgment of the Department the claims are | 7 | | valid and enforceable in the courts. No court costs or any | 8 | | fees for necessary process and proceedings shall be | 9 | | payable in advance by the Department for prosecuting the | 10 | | actions. If there is a judgment rendered against the | 11 | | defendant, the court shall assess as part of the judgment | 12 | | the costs of the proceeding. Upon collection of the | 13 | | judgment, the Department shall pay from the proceeds of | 14 | | the judgment the costs to the person who is by law entitled | 15 | | to compensation. The Department may join in a single | 16 | | proceeding any number of immigration-related retaliation | 17 | | claims against the same employer, but the court shall have | 18 | | discretionary power to order a severance or separate trial | 19 | | for hearings. | 20 | | (3) Make complaint in any court of competent | 21 | | jurisdiction of violations of this Act. | 22 | | In addition to these powers, the Department may establish | 23 | | an administrative procedure to adjudicate claims and to issue | 24 | | final and binding administrative decisions on claims subject | 25 | | to the Administrative Review Law. To establish the procedure, | 26 | | the Director or the Director's authorized representative may |
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| 1 | | adopt rules. The adoption, amendment, or rescission of rules | 2 | | for the procedure shall be in conformity with the requirements | 3 | | of the Illinois Administrative Procedure Act. If a final and | 4 | | binding administrative decision issued by the Department | 5 | | requires an employer or other party to pay wages, penalties, | 6 | | or other amounts in connection with an immigration-related | 7 | | retaliation claim, and the employer or other party has | 8 | | neither: (i) made the required payment within 35 days after | 9 | | the issuance of the final and binding administrative decision; | 10 | | nor (ii) timely filed a complaint seeking review of the final | 11 | | and binding administrative decision pursuant to the | 12 | | Administrative Review Law in a court of competent | 13 | | jurisdiction, the Department may file a verified petition | 14 | | against the employer or other party to enforce the final | 15 | | administrative decision and to collect any amounts due in | 16 | | connection therewith in the circuit court of any county where | 17 | | an official office of the Department is located. | 18 | | Section 25. Enforcement by Attorney General. | 19 | | (a) Whenever the Attorney General has reasonable cause to | 20 | | believe that any employer, putative employer, or person acting | 21 | | on behalf of an employer has violated this Act, the Attorney | 22 | | General may, pursuant to the authority in Section 6.3 of the | 23 | | Attorney General Act, initiate or intervene in a civil action | 24 | | in the name of the People of the State in any circuit court to | 25 | | obtain appropriate relief. |
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| 1 | | (b) Before initiating or intervening in an action, the | 2 | | Attorney General may, pursuant to the authority in Section 6.3 | 3 | | of the Attorney General Act, conduct an investigation and may: | 4 | | (1) require any individual to file a statement or | 5 | | report in writing under oath or otherwise as to all | 6 | | information the Attorney General may consider necessary; | 7 | | (2) examine under oath any individual alleged to have | 8 | | participated in or with knowledge of the alleged | 9 | | violation; or | 10 | | (3) issue subpoenas or conduct hearings in aid of any | 11 | | investigation. | 12 | | (c) Whenever a party refuses to produce a document, answer | 13 | | an interrogatory, or provide testimony under oath in response | 14 | | to a subpoena from the Attorney General, the Attorney General, | 15 | | pursuant to the authority in Section 6.3 of the Attorney | 16 | | General Act, may petition the circuit court for an order | 17 | | compelling compliance. | 18 | | Section 30. Private right of action. Nothing in this Act | 19 | | shall be construed to prevent any applicant, employee, | 20 | | putative employee, or independent contractor from making | 21 | | complaint or prosecuting his or her own claim for damages | 22 | | caused by immigration-related retaliation. Any applicant, | 23 | | employee, putative employee, or independent contractor | 24 | | aggrieved by an actual or suspected violation of this Act or | 25 | | any rule adopted under this Act may, within 2 years after the |
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| 1 | | date of the retaliation, file suit in circuit court, in the | 2 | | county where the alleged violation occurred or where any | 3 | | person who is party to the action resides, or in the Court of | 4 | | Claims for any action filed against the State, without regard | 5 | | to exhaustion of any alternative administrative remedies | 6 | | provided in this Act. Actions may be brought by one or more | 7 | | applicants, employees, or independent contractors for and on | 8 | | behalf of themselves and other persons similarly situated. | 9 | | Section 35. Remedies and penalties. | 10 | | (a) An applicant, employee, or other person who is the | 11 | | subject of an immigration-related retaliation prohibited by | 12 | | this Act, or a representative of that applicant, employee, or | 13 | | person, may bring a civil action for any one or more of the | 14 | | following remedies: | 15 | | (1) back pay, with interest, and front pay, or, in | 16 | | lieu of actual damages, at the employee's election, | 17 | | liquidated damages of $30,000; | 18 | | (2) a civil penalty in an amount not to exceed | 19 | | $10,000, payable to the applicant, employee, or | 20 | | independent contractor; | 21 | | (3) reasonable attorney's fees and court costs, | 22 | | including any expert witness costs; and | 23 | | (4) equitable relief as the court may deem appropriate | 24 | | and just. | 25 | | An action under this Act shall not limit or otherwise |
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| 1 | | affect the applicability of other rights and remedies under an | 2 | | applicable employment law or under the Whistleblower Act. | 3 | | (b) An employer that violates any provision of this Act | 4 | | shall be subject to an additional civil penalty in an amount of | 5 | | $25,000 for each violation of Section 15 and $50,000 for each | 6 | | repeat violation of Section 15 within a 5-year period. | 7 | | The penalty amount may be recovered in any administrative | 8 | | proceeding by the Department or a civil action filed in any | 9 | | circuit court by the Director or the Attorney General. All | 10 | | moneys received by the Department as fees and civil penalties | 11 | | under this Act shall be used by the Department for | 12 | | administration, investigation, and other expenses incurred in | 13 | | carrying out its powers and duties under this Act. | 14 | | In any civil action brought by the Attorney General, the | 15 | | penalty amount shall be deposited into the Attorney General | 16 | | Court Ordered and Voluntary Compliance Payment Projects Fund. | 17 | | Moneys in the Fund shall be used for the performance of any | 18 | | function pertaining to the exercise of the duties of the | 19 | | Attorney General, including, but not limited to, enforcement | 20 | | of any law of this State and conducting public education | 21 | | programs. However, any moneys in the Fund that are required by | 22 | | the court or by an agreement to be used for a particular | 23 | | purpose shall be used for that purpose. Any uncollected | 24 | | penalty amount shall be subject to the provisions of the | 25 | | Illinois State Collection Act of 1986. | 26 | | (c) An applicant, employee, or other person who is the |
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| 1 | | subject of immigration-related retaliation prohibited by this | 2 | | Section, and who prevails in an action authorized by this | 3 | | Section, shall recover its reasonable attorney's fees and | 4 | | costs, including any expert witness costs. | 5 | | Section 40. Administration. The Director or the Director's | 6 | | authorized representatives shall administer and enforce the | 7 | | provisions of this Act. In order to accomplish the objectives | 8 | | of this Act and to carry out the duties prescribed by this Act, | 9 | | the Director or the Director's authorized representatives | 10 | | shall, within one year after the effective date of this Act, | 11 | | adopt rules necessary to administer and enforce the provisions | 12 | | of this Act, including the procedures that shall be followed | 13 | | for investigations and hearings under Section 20, in | 14 | | accordance with the Illinois Administrative Procedure Act. | 15 | | Section 99. Effective date. This Act takes effect January | 16 | | 1, 2025.". |
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